Filed November 20, 2015
In re Anne Marie Beckert
Commission No. 2013PR00126
Synopsis of Hearing Board Report and Recommendation
In a five-count complaint, the Administrator charged Respondent with multiple types of misconduct in four client matters, including lack of diligence, lack of communication and failing to return unearned fees. In addition, the Administrator charged Respondent with failing to cooperate in the investigations of these matters. Respondent admitted many of the factual allegations but denied committing misconduct. She presented evidence that her conduct was related to an episode of severe depression and debilitating migraines.
The Hearing Board found the Administrator proved some of the charges, primarily related to Respondent's lack of communication with her clients. The Hearing Board further found Respondent failed to act with reasonable diligence and promptness as to one client, and, as to another client, failed to return funds paid to her for costs she did not incur. As Respondent's failure to cooperate with the Administrator's investigations was undisputed, the Hearing Board found the charges related to that conduct proved as well. The Hearing Board found the Administrator did not prove the remaining charges.
The Hearing Board found the majority of the proven misconduct was causally related to Respondent's depression and migraines. Respondent's condition is improved since the time of the misconduct and she is committed to maintaining treatment. Consequently, the Hearing Board recommended Respondent be suspended for six months and until further order of the court, with the suspension stayed after 90 days by one year of probation, subject to conditions.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
ANNE MARIE BECKERT,
Commission No. 2013PR00126
REPORT AND RECOMMENDATION OF THE HEARING BOARD
SUMMARY OF THE REPORT
This matter involves Respondent's representation of clients in four employment matters. Respondent failed to refund costs in the first matter, failed to act diligently and keep the client reasonably informed in the second matter, failed to comply with reasonable requests for information in the third matter, and failed to keep the client reasonably informed and to respond to reasonable requests for information in the fourth matter. In addition, she failed to respond to the Administrator's requests for information about all of the matters at issue. Respondent was suffering from severe depression and migraines at the time of the majority of the misconduct. We recommend that Respondent be suspended for six months and until further order of the court, with the suspension stayed after 90 days by one year of probation.
The hearing in this matter was held on April 21, 22 and 30, and May 5, 2015, at the Chicago offices of the Attorney Registration and Disciplinary Commission (ARDC) before a Panel of the Hearing Board consisting of Jeffrey S. Torosian, Reva S. Bauch and David A.
Dattilo. Wendy J. Muchman, Marcia Topper Wolf and Ari I. Telisman represented the Administrator. Respondent appeared at the hearing and was represented by Arthur F. Radke.
On November 7, 2013, the Administrator filed a five-count Complaint against Respondent, alleging she neglected four client matters and failed to return unearned fees in three of those matters. The Complaint further alleged Respondent failed to cooperate with the ARDC's investigations. Respondent filed an answer to the Complaint on May 5, 2014, in which she admitted many of the factual allegations but denied all allegations of misconduct.
The Complaint alleges Respondent: 1) failed to act with reasonable diligence and promptness in representing a client (Counts I-IV); 2) failed to keep a client reasonably informed about the status of a matter (Counts I-IV); 3) failed to comply with reasonable requests for information from a client (Counts I-IV); 4) failed to promptly deliver to the client any funds or other property that the client is entitled to receive (Counts I-IV); failed to promptly refund any part of a fee paid in advance that has not been earned (Counts I-IV); failed to respond to a lawful demand for information from the ARDC (Count V); and engaged in conduct prejudicial to the administration of justice (Count V), in violation of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.15(d), 1.16(d), 8.1(b) and 8.4(d) of the Illinois Rules of Professional Conduct.
EVIDENCE AND STIPULATIONS
The Administrator presented the testimony of Cheryl Bauer, Andrew Oliva, Jesse Mamon, Joel Silberberg, M.D., Edward Clinton, Jr., James Comerford, Robert Bauer, Terry Kemnetz, and the adverse testimony of Respondent. Administrator's Exhibits 1-4, 10, 11, and 14 were admitted into evidence in part.1 The Administrator's Exhibits 15, 18, and 19-22 were
also admitted into evidence. Respondent testified on her own behalf. Respondent's Exhibits 97-146 and 210 were admitted into evidence. Respondent also offered into evidence Dr. Silberberg's two reports, which were marked as Administrator's Exhibits 16 and 17. These exhibits were admitted into evidence under seal, pursuant to the parties' agreement.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator has the burden of proving attorney misconduct by clear and convincing evidence. Ill. Sup. Ct. R. 753(c)(6) (2010); In re Edmonds, 2014 IL 117696, par. 35 (Nov. 20, 2014). The clear and convincing standard is not as stringent as the criminal standard of proof beyond a reasonable doubt, but it requires more than a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); People v. Williams, 143 Ill. 2d 477, 484, 577 N.E.2d 273 (1995). The Hearing Panel is responsible for determining the credibility of the witnesses, weighing conflicting testimony, drawing reasonable inferences and making factual findings based on the evidence. Edmonds, 2014 IL 117696, par. 35; In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300 (1993).
I. In Count I, Respondent is charged with failing to act with reasonable diligence and promptness in representing a client, failing to keep a client reasonably informed about the status of a matter, failing to comply with reasonable requests for information from a client, failing to promptly deliver to the client any funds or other property that the client is entitled to receive, and failing to promptly refund any part of a fee paid in advance that has not been earned in violation of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.15(d), and 1.16(d).
A. Summary of Count I
The Administrator did not prove Respondent failed to act with reasonable diligence and promptness in representing Robert Bauer, failed to keep Bauer reasonably informed or failed to respond to reasonable requests for information. The Administrator did not establish Respondent was obligated to return part of her fee, but did establish Respondent committed misconduct in failing to return to Bauer $1,000 that she received for costs.
B. Admitted Facts and Evidence Considered
Robert Bauer, a retired electrician, hired Respondent to represent him in a disability pension dispute with his union. (Tr. 556). On February 17, 2012, Bauer met with Respondent and signed a retainer agreement. (Tr. 565; Adm. Ex. 1 at 3-6). On that date he paid Respondent $10,250, which included a $9,250 fixed fee and $1,000 for costs.2 (Tr. 576; Adm. Ex. 1 at 8). Respondent had represented clients in ERISA matters before she agreed to represent Bauer and felt confident she could represent him. (Tr. 743-44). Bauer's understanding was that he hired Respondent to file a lawsuit on his behalf against his union. (Tr. 575-76).
Paragraphs 8, 10 and 15 and 16 of the retainer agreement that Bauer signed stated in relevant part:
8. You understand that you have agreed to pay Counsel a fixed fee of $9,250 (Nine thousand, Two Hundred and Fifty Dollars). This amount includes a $500 (Five Hundred Dollars) initial consultation fee and a flat fee for 25 hours of Counsel's time at the hourly rate of $350 (Three Hundred Fifty Dollars) to undertake the referenced work.
10. You understand that the $9,250 (Nine thousand, Two Hundred and Fifty Dollars) fee is nonrefundable after Counsel has expended in excess of 15 hours on this matter.
15. You additionally agree to provide Counsel with an initial $1,000.00 (One Thousand Dollars) cost retainer to cover the fees associated with filing your case (Filing Fee and, if necessary, Service of Process). You understand that, after Counsel has expended in excess of $1,000.00 (One Thousand Dollars), you are responsible, on an on-going basis, for the payment of all costs incurred in this matter.
16. "Costs" are all out of pocket expenses Counsel incurs in the prosecution of your case. Examples of costs include, but are not limited to, filing fees, fees for service of summons and subpoenas, court reporter fees, printing, or document copying costs, witness fees, docket fees, postage and delivery, transportation, transcript fees, expert witness fees, and legal research fees. You understand that you are required to pay these expenses promptly as incurred, and that failure to do so can result in the termination of this Agreement. If any fees or costs remain unpaid for more than 30 days, you authorize Counsel to charge interest on the unpaid amount at the rate of 5% (five percent) per month from the date the invoice [sic] until it is paid.
Respondent testified her first meeting with Bauer lasted four hours, and she spent forty hours on Bauer's case the first week after she was retained. (Tr. 747-48). Bauer believes he gave Respondent some original documents, including an original retirement document from his union and possibly a Social Security document. Bauer retained copies of some documents he gave Respondent. (Tr. 626).
On March 2, 2012, Bauer received a schedule from Respondent, which stated Respondent would complete a draft complaint by March 23, 2012.3 (Tr. 577; Adm. Ex. 1 at 120-21). At no time during the representation did Respondent provide Bauer with a complete draft complaint.
Bauer testified he met with Respondent a total of three times. (Tr. 579). Respondent testified she and Bauer met four times. (Tr. 748). Bauer testified Respondent cancelled appointments with him at least seven times. (Tr. 581). Respondent acknowledged she had to cancel appointments but always rescheduled them. (Tr. 749).
Respondent and Bauer met in June 2012 and spent two or three hours discussing Bauer's case. It appeared to Bauer that Respondent was working on his case and trying to move forward on it. (Tr. 582). Bauer testified Respondent pointed out the strengths and weaknesses of his case and provided him with "a lot of documentation in other cases and things," and "a lot of copies of rules and regulations." (Tr. 617). Bauer was aware that his matter was "a trying case." (Tr. 617). Respondent felt Bauer's case was very complicated. (Tr. 745).
Until August 2012, Bauer spoke to Respondent by phone once or twice per month. (Tr. 622). He stated that every month Respondent indicated she was going to file the complaint. (Tr. 620).
Bauer's cell phone bill from August 2012 showed fourteen one-minute calls to Respondent. Bauer testified those calls reflect occasions when he left messages for Respondent.
(Tr. 607). According to Respondent, she communicated frequently with Bauer. (Tr. 748). The record contains email correspondence between Respondent and Bauer regarding Bauer's case between March 2, 2012, and September 21, 2012. (Adm. Ex. 1).
Respondent suffered from severe depression in 2012 and believes her depression had some effect on the length of time she worked on the Bauer complaint. She was having trouble coming to conclusions. (Tr. 735-36, 750). On August 29, 2012, Respondent sent Bauer a 20-page portion of a draft complaint. (Tr. 594-95; Adm. Ex. 1 at 59-79).
After September 21, 2012, Bauer did not hear from Respondent. (Tr. 600). In October 2012, because he could not reach Respondent by email or telephone, Bauer went to Respondent's home, which was also her office, and learned she had moved. (Tr. 581-82). He does not recall Respondent telling him that she was moving. (Tr. 636).
Respondent testified she had a dispute with her landlord that resulted in her being evicted from the condominium where she and her daughter lived and where she had her office. She had to find a new apartment and move on very short notice in October 2012. (Tr. 738-40).
On October 11, 2012, Bauer contacted attorney Jim Comerford. (Tr. 601-602; Adm. Ex. 1 at 54-55). Bauer had discussed his case with Comerford before he hired Respondent but Comerford did not take his case at that time. (Tr. 324). Comerford agreed to represent Bauer after Bauer contacted him in October 2012. Bauer paid Comerford $12,000. (Tr. 340).
Comerford tried to contact Respondent by letter and phone but received no response. (Tr. 348-50). Comerford does not recall asking Respondent to return any documents to Bauer. (Tr. 358).
Comerford reviewed Respondent's draft complaint. He testified it was not in a format that he would file. (Tr. 328-29). Comerford filed a complaint on Bauer's behalf in January
2013. (Tr. 341-42). He had advised Bauer he was unlikely to obtain a favorable judgment. (Tr. 347).
The Court entered summary judgment against Bauer. Comerford reached a settlement agreement with the union, providing that the union would not move for fees against Bauer and that Bauer could seek an increase in his disability pension if the plan were amended in the future. (Tr. 360).
C. Analysis and Conclusions
1. Diligence and Promptness
A lawyer shall act with reasonable diligence and promptness in representing a client. Ill. Rs. Prof'l Conduct R. 1.3 (2010). The Administrator alleges Respondent did not act with reasonable diligence and promptness because she did not complete the task of filing a complaint on Bauer's behalf, which was the purpose of the representation.
This is not a case in which Respondent accepted a fee and performed little or no work. Although Respondent did not complete the complaint before Bauer ended the representation, she performed a substantial amount of work on Bauer's case. She did not miss a deadline for filing the complaint or prejudice Bauer's rights in any way. Bauer acknowledged that Respondent was putting effort toward his case.
The Administrator's position appears to be that Respondent spent too much time on Bauer's complaint. We have considered Respondent's testimony that her depression likely delayed her ability to complete Bauer's complaint, and we understand Bauer's frustration that Respondent did not finish the complaint within the time frame she promised. That said, the fact that a representation is less than ideal does not compel a finding of misconduct. In re Howard, 96 CH 531, M.R. 15103 (Sept. 28, 1998) (Hearing Bd. at 24). We find that any delay related to Respondent's depression was not significant enough to rise to the level of misconduct.
Moreover, the fact that Respondent's approach to Bauer's complaint may have been more time consuming than another attorney's approach does not establish a violation of Rule 1.3.
2. Keeping Client Reasonably Informed
We further find the Administrator did not prove misconduct with respect to Respondent's communications with Bauer. A lawyer must keep the client reasonably informed about the status of the matter. Ill. Rs. Prof'l Conduct R. 1.4(a)(3) (2010).
During the approximately eight-month representation, Respondent and Bauer communicated frequently. Respondent met with Bauer in person three or four times, spoke to him by telephone once or twice per month, and corresponded with him by email. Although Bauer testified his cell phone bill showed fourteen occasions when he left a message for Respondent during August 2012, we do not find that to be clear and convincing evidence of a lack of communication on Respondent's part. The evidence contains three email messages from Respondent to Bauer between August 20, 2012 and August 29, 2012 discussing his case, as well as three email messages from Respondent to Bauer dated September 10, 11 and 12, 2012, all of which discuss Respondent's strategy for Bauer's case and her progress on the draft complaint. Thus, the evidence shows Respondent did communicate with Bauer about his case even if Bauer was not able to reach Respondent by phone. Although there was a period in late September and October 2012 when Respondent did not communicate with Bauer, Respondent testified this was the time period when she unexpectedly had to move from her home and office. It would have been preferable if Respondent had notified Bauer of her move at the time it occurred but we cannot say her failure to do so rose to the level of an ethical violation.
Moreover, the Administrator did not prove Respondent failed to provide Bauer with information. Bauer knew Respondent was working on the complaint and had not filed it. In
email correspondence, Respondent advised Bauer of her progress on the complaint. There was no showing Bauer lacked any information about his case.
3. Promptly Complying with Reasonable Requests for Information
A lawyer must promptly comply with reasonable requests for information. Ill. R. Prof'l Conduct R. 1.4(a)(4) (2010). The Administrator alleges in the Complaint that Respondent cancelled all of her meetings with Bauer, and did not return his phone calls or otherwise contact him. The evidence indicates otherwise.
As explained in Section 2 above, we find Respondent communicated with Bauer regularly except for a period of about three weeks around the time of her move. The Administrator did not present evidence of specific requests for information from Bauer during this time period, nor did the Administrator establish there was case information Bauer was lacking. Under these circumstances, we cannot say Respondent's conduct constitutes an ethical violation.
4. Returning Fee and Costs
With respect to the $10,250 fee Bauer paid Respondent, the Administrator alleged Respondent did not perform sufficient work to justify retaining any part of the fee and failed to refund the fee to Bauer. A lawyer must promptly deliver to the client any funds the client is entitled to receive and, upon termination of a representation, must refund any advance payment of fee or expense that has not been earned. Ill. Rs. Prof'l Conduct Rs. 1.15(d) and 1.16(d) (2010).
The Administrator did not prove by clear and convincing evidence that Respondent did not perform sufficient work to justify retaining the fee she received from Bauer. Respondent's $9,250 fee included a $500 consultation fee and a flat fee for 25 hours of work at $350 per hour. The retainer agreement provided the flat fee was nonrefundable after Respondent spent in excess
of 15 hours on Bauer's matter. Based on Respondent's meetings with Bauer, her email correspondence with him, the legal research reflected in her correspondence, the draft portion of the complaint she prepared, and Respondent's and Bauer's testimony about the amount of time she spent on the case, we find the evidence showed she spent far more than 15 hours on the case. Consequently, Respondent was not required to refund any portion of the fee.
However, we find Bauer is entitled to a refund of the advance costs he paid to Respondent. The retainer agreement provided the advance costs were to go toward filing and service of process fees. Respondent did not incur any such costs because she did not file Bauer's complaint. She did not present evidence of any other costs incurred on Bauer's behalf that would entitle her to keep the $1,000. Accordingly, we find Respondent violated Rules 1.15(d) and 1.16(d) with respect to the cost retainer and should be required to make restitution to Bauer in the amount of $1,000.
5. Returning Documents
The Administrator alleges Respondent engaged in misconduct by failing to return documents to Bauer. A lawyer shall promptly deliver to the client any property that the client is entitled to receive and, upon termination of the representation, shall surrender papers and property to which the client is entitled. Ill. Rs. Prof'l Conduct Rs. 1.15(d) and 1.16(d) (2010).
There was conflicting evidence whether Bauer gave Respondent original documents. However, we need not determine the nature of the documents in Respondent's possession because there is no allegation in the Complaint and no evidence that Bauer or attorney Comerford asked Respondent for Bauer's file or any particular documents. Respondent's admission that she has not returned documents to Bauer, by itself, is not sufficient to establish misconduct. Without an allegation in the Complaint and evidence that Respondent received a
request to return documents and refused or ignored that request, we do not find an ethical violation.
II. In Count II, Respondent is charged with failing to act with reasonable diligence and promptness in representing a client, failing to keep a client reasonably informed about the status of a matter, failing to comply with reasonable requests for information from a client, failing to promptly deliver to the client any funds or other property that the client is entitled to receive, and failing to promptly refund any part of a fee paid in advance that has not been earned, in violation of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.15(d) and 1.16(d).
A. Summary of Count II
We find the Administrator proved Respondent failed to act with reasonable promptness and diligence in representing Carol Mamon by failing to complete an appeal of the denial of long-term disability benefits and failed to keep her reasonably informed about the status of the appeal. We find the Administrator did not prove the remaining charges in Count II.
B. Evidence Considered
On May 30, 2009, Carol Mamon (Carol) hired Respondent to assist with an appeal to Prudential Insurance Company (Prudential) regarding the denial of Carol's claim for long-term disability benefits. (Tr. 119). Carol paid Respondent $5,500. (Tr. 119). Respondent had previously done some pro bono work for Carol. (Tr. 757).
The retainer agreement provided that the $5,500 flat fee was nonrefundable after Respondent expended in excess of 16 hours on Carol's case. (Adm. Ex. 3 at 24).
After Carol retained her, Respondent performed legal research regarding Carol's claim and reviewed Carol's medical records. (Tr. 760). Respondent estimated she spent at least 30 hours on Carol's matter. (Tr. 762). Respondent sent a letter of appeal to Prudential on June 15, 2009. (Adm. Ex. 3 at 5-14). In Respondent's letter, she advised Prudential she would "make every attempt to supplement our appeal with additional medical documentation, as well as our own analysis and critique of the documents provided to us by you." (Adm. Ex. 3 at 13).
Respondent requested and received numerous extensions of time from Prudential in which to submit medical records. (Tr. 448). Respondent testified she collected Carol's medical information throughout 2009 and 2010. (Tr. 442).
Prudential denied Carol's appeal on June 26, 2011, and advised Respondent that any further appeal would have to be filed within 180 days. (Adm. Ex. 4 at 8-18). In her letter denying the appeal, Meredith Formon, Prudential Appeals Specialist, set forth the details of Respondent's numerous requests for extensions and representations that she would submit documents. (Adm. Ex. 4 at 11-12). Formon stated that Respondent advised her on October 20, 2010, that she had 850 pages of Carol's medical records to fax to Prudential. Formon advised Respondent to mail the documents. Based on Respondent's representations that she would do so, Formon advised Respondent that Prudential would begin its review of Carol's appeal on February 25, 2011. Respondent did not provide the records. (Adm. Ex. 4 at 12). Formon then sent Respondent a letter requesting that Carol execute an authorization that would allow Prudential to obtain Carol's medical records. Prudential did not receive a response to this request and commenced its review of the appeal on May 26, 2011, based on the most recent medical records it had, which were from 2008. (Adm. Ex. 4 at 12).
Respondent testified she mailed supplemental information in support of the first appeal and substantiating documents to Prudential on or around August 4, 2011. (Tr. 453, 457-58). At that time, she did not know Prudential had denied the appeal because she did not receive Prudential's denial letter until September 2011. (Tr. 453). In speaking with Prudential in August or September 2011, Respondent learned of the denial of the original appeal. Prudential and Respondent agreed that when Prudential received the documents Respondent sent, Prudential would consider the documents as the second appeal. (Tr. 764).
Over the next several months, Respondent checked in with Prudential and eventually learned Prudential never received the documents. (Tr. 468). Respondent testified she intended to recreate and resubmit Carol's supplemental appeal but was not able to do so due to her depression. (Tr. 765). Respondent testified she had conversations with Carol during this time in which she told Carol they had lost the first appeal and Prudential had not received the documents Respondent had mailed. (Tr. 767). Respondent admitted she did not inform Carol that she was not able to follow through on the supplemental appeal and did not communicate with Carol in 2013. (Tr. 768).
The Administrator did not call Carol as a witness in this hearing because she has difficulties with her memory. (Tr. 106-112). Carol's husband, Jesse Mamon (Jesse), testified in her stead.
Jesse testified that sometimes Respondent would call Carol but other times Respondent would not answer her phone and the Mamons were not able to get in touch with her. (Tr. 129). Jesse estimated he and Carol tried to contact Respondent at least twenty times without Respondent returning their calls. (Tr. 165). According to Jesse, Respondent did not tell him Prudential denied Carol's appeal. (Tr. 131). Jesse testified he and Carol provided Respondent with Carol's medical records and "doctor's statements." (Tr. 127, 154).
Jesse contacted Prudential himself in December 2013 and learned Respondent had not completed the appeal. (Tr. 133, 138). The Mamons did not ask Respondent to refund any of the fees they paid her. (Tr. 148). Jesse did not know how much time Respondent spent on Carol's appeal because "she would never tell us anything." (Tr. 154).
After the Mamons became dissatisfied with Respondent's representation, they spoke with an attorney who attempted to contact Respondent. Respondent has not refunded any portion of the fee she received from Carol. (Tr. 150).
C. Analysis and Conclusions
1. Diligence and Promptness
We find the Administrator proved by clear and convincing evidence that Respondent failed to act with reasonable diligence and promptness in representing Carol, in violation of Rule 1.3. Between June 15, 2009, and August 4, 2011, Respondent submitted no additional information to Prudential in support of Carol's appeal, despite numerous representations that she would do so. Even if we credit Respondent's testimony that she was collecting Carol's medical records in 2009 and 2010, there is no reasonable explanation for the delay between October 2010, when Respondent advised Prudential she had 850 pages of documents ready to submit, and August 2011, when, according to Respondent, she put the documents in the mail. This was an unreasonable delay that resulted in a review of Carol's appeal without all of the relevant medical records.
In addition, despite Respondent's knowledge that Prudential did not receive the documents mailed in August 2011, Respondent never resubmitted the documents or made a further effort to follow through on Carol's appeal. Unlike the Bauer matter where Respondent steadily worked on the complaint but did not complete it before the representation ended, Respondent effectively abandoned Carol's appeal.
2. Keeping Client Reasonably Informed
We further find the Administrator proved by clear and convincing evidence that Respondent failed to keep Carol reasonably informed about the status of her matter. Respondent admits she did not inform Carol of her failure to follow through with the supplemental appeal
and stopped communicating with Carol in 2013. Respondent's admissions are consistent with Jesse's testimony that he and Carol did not know the appeal process had ended until Jesse contacted Prudential in December 2013. Respondent's failure to complete the appeal process was important information she should have communicated to Carol. For these reasons, we find Respondent violated Rule 1.4(a)(3).
3. Promptly Complying with Reasonable Requests for Information
We do not find sufficient proof that Respondent failed to respond to reasonable requests for information. There was conflicting evidence about Respondent's communications with Carol. Respondent testified she communicated with Carol primarily by phone and did not speak with Jesse. Jesse testified he sometimes spoke with Respondent when she called, and Carol let him know when she tried to call Respondent and whether Respondent called her back. According to Respondent, she kept Carol apprised of the status of her case. Jesse, on the other hand, testified he and Carol received no information from Respondent.
Because Carol did not testify, we do not have an accurate understanding of the communications between her and Respondent. Jesse's testimony regarding when he or Carol spoke with or attempted to speak with Respondent was not sufficiently clear or specific to provide a basis for us to find a violation of Rule 1.4(a)(4) by clear and convincing evidence. Jesse provided only vague time frames regarding communications and attempted communications with Respondent. Although he testified there were at least twenty occasions when Respondent did not return calls, he provided no information regarding when during the approximately four-year representation these attempts to reach Respondent occurred. For these reasons, we find the Administrator did not prove Respondent violated Rule 1.4(a)(4) in the Mamon matter.
4. Returning Fee
We further find the Administrator did not prove Respondent was required to refund any portion of her fee to Carol. Pursuant to the retainer agreement, the $5,500 fee was nonrefundable after Respondent spent more than 16 hours on Carol's case. Respondent prepared and timely sent to Prudential an eight-page appeal of the denial of long term disability benefits. She gave uncontradicted testimony that she collected and reviewed hundreds of pages of Carol's medical records. Based on this evidence of work Respondent performed on Carol's case, the Administrator did not prove Respondent was required to refund all or part of her fee to Carol. Accordingly, we find no violation of Rules 1.15(d) and 1.16(d).
5. Returning Documents
The Administrator did not prove Respondent acted unethically by failing to return documents to Carol. Respondent admitted she did not return documents to Carol but, as in Count I, there was no allegation or evidence that Carol or Jesse asked Respondent for Carol's file or documents so we do not find an ethical violation.
III. In Count III, Respondent is charged with failing to act with reasonable diligence and promptness in representing a client, failing to keep a client reasonably informed about the status of a matter, failing to comply with reasonable requests for information from a client, failing to promptly deliver to the client any funds or other property that the client is entitled to receive, and failing to promptly refund any part of a fee paid in advance that has not been earned in violation of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.15(d) and 1.16(d).
A. Summary of Count III
Respondent failed to comply with reasonable requests for information by failing to provide Terry Kemnetz with a summary of the time Respondent spent on his matter. The Administrator did not prove the remaining charges in Count III.
B. Admitted Facts and Evidence Considered
On or about May 30, 2012, Terry Kemnetz hired Respondent to assist him in a dispute with his former employer, the United States Postal Service (Postal Service). Prior to hiring Respondent, Kemnetz filed grievances over his March 2012 suspension and termination from the Postal Service. Kemnetz was represented by his union in the grievance process but wanted Respondent to make sure the union was presenting the correct facts and legal argument. (Tr. 676, 678).
Kemnetz executed a retainer agreement with Respondent and made a partial payment of $4,500 toward Respondent's $9,250 fixed fee. (Tr. 653; Adm. Ex. 10 at 56-59). Respondent agreed to accept partial payment with the understanding Kemnetz would pay the remaining fee in a few weeks. (Tr. 782). The retention agreement provided the fee was not refundable once Respondent performed 25 hours of work. (Adm. Ex. 10 at 6-7).
Respondent's understanding was that Kemnetz hired her to act as general counsel over the grievance matters. She performed "a lot" of initial research and looked over the grievances the union had filed on Kemnetz's behalf. (Tr. 774). Respondent gave Kemnetz advice regarding whether the union was making the necessary arguments and whether Kemnetz should file an EEOC claim. (Tr. 771-72). It was Respondent's opinion that Kemnetz should not pursue an EEOC claim. Respondent testified she advised Kemnetz of her opinion and Kemnetz was satisfied with it. (Tr. 772-73).
Respondent also researched the question of whether the union would continue to represent Kemnetz if she filed an appearance. Kemnetz eventually decided he did not want Respondent to file an appearance on his behalf. (Tr. 775).
In addition, Respondent researched the issue of whether retirement would foreclose Kemnetz's grievance case. (Tr. 779). Although Respondent told Kemnetz she would represent
him in arbitration of the grievance matter if the union did not represent him, it was Respondent's understanding that if Kemnetz chose to retire, his grievance claims would terminate. (Tr. 779, 784). On October 7, 2012, Kemnetz told Respondent he intended to retire from the Postal Service on January 3, 2013. (Resp. Ex. 126). In subsequent email correspondence dated October 15, 2012, and October 17, 2012, Respondent advised Kemnetz not to retire. (Resp. Exs. 128, 130). On October 23, 2012, Kemnetz advised Respondent he intended to retire on November 9, 2012, withdraw all legal action and seek reimbursement of the retainer he paid Respondent. (Resp. Ex. 133).
Respondent and Kemnetz had a brief email exchange on October 24, 2012, in which Kemnetz advised Respondent that his union and the Postal Service would not recognize a personal attorney in the arbitration process. Respondent advised Kemnetz she did not think that was correct and said, "Let me gather my thoughts and talk to you tomorrow?" (Resp. Exs. 134, 135). Kemnetz advised Respondent she could call him on October 25, 2012. (Resp. Ex. 136). The next email in evidence from Kemnetz to Respondent was sent December 10, 2012, and indicated Kemnetz's intention to terminate the attorney-client relationship. The email stated that Respondent had not contacted Kemnetz about his case in over four months, "other than to say you have been busy, we need to talk, and you will be in touch." (Resp. Ex. 137). Respondent disagreed that she did not have communications of any substance with Kemnetz in four months. (Tr. 781-82). She testified that if Kemnetz tried to get in touch with her between October 24, 2012 and December 10, 2012, she was not aware of it because of her depression and problems with her phone and internet service. (Tr. 504).
Respondent called Kemnetz on December 12, 2012, and asked him not to terminate the relationship. (Tr. 671; Adm. Ex. 10 at 64). Kemnetz agreed and asked Respondent to advise
him of her strategy for pursuing a civil action and how much she would charge him. (Tr. 671-72). Respondent told Kemnetz she had already sent him a letter outlining her strategy. Kemnetz never received a letter from Respondent. (Tr. 672; Adm. Ex. 10 at 64). He terminated the representation on December 27, 2012. (Resp. Ex. 139). On January 18, 2013, Respondent advised Kemnetz she would prepare a billing summary and send it to him. (Resp. Ex. 144).
Kemnetz testified he thinks Respondent spent "zero hours" on his case, but he acknowledged she spent time speaking with him. (Tr. 690). Respondent admitted she did not prepare a summary of her time, as Kemnetz requested. She expressed her remorse for failing to do so. (Tr. 785). She testified she worked more than 25 hours on Kemnetz's case and certainly spent more than 12.5 hours, which would correspond to Kemnetz's partial payment of the fee. (Tr. 784).
In April 2013, Kemnetz consulted with attorney Edward X. Clinton, Jr. about his dispute with Respondent. (Tr. 295-96). Clinton sent letters to Respondent on April 12, 2013, May 28, 2013, and October 17, 2013, all of which requested a refund of Kemnetz's fee and an explanation of what services Respondent rendered. (Tr. 305-308; Adm. Ex. 10 at 48, 54, 55). Respondent did not respond to the letters. Clinton also called Respondent around the time he mailed each letter. He left messages but Respondent did not return his calls. (Tr. 307-308). Clinton sent a letter to the ARDC in August 2013 about Respondent's conduct. (Tr. 308). Clinton did not represent Kemnetz in any claims against the Postal Service. (Tr. 310).
C. Analysis and Conclusions
1. Diligence and Promptness
The evidence did not establish Respondent failed to act with reasonable diligence and promptness in representing Kemnetz. Kemnetz hired Respondent to advise him and monitor his grievance process, which Respondent did. The Administrator did not establish what, if anything,
Respondent should have done differently, particularly once Kemnetz advised Respondent of his intention to retire from the Postal Service and withdraw all legal action. There is an allegation in the Complaint that Respondent missed a deadline to file an EEOC claim on Kemnetz's behalf, but the Administrator did not establish that Respondent agreed to file an EEOC claim on Kemnetz's behalf, much less that she missed a deadline to do so. Accordingly, we find no violation of Rule 1.3.
2. Keeping Client Reasonably Informed
An attorney has a duty to keep the client reasonably informed about the status of the matter, which includes the overall level of communication (In re Kirby, 2010PR00098, M.R. 26679 (May 16, 2014) (Hearing Bd. at 17)), as well as advising the client of "significant developments affecting the timing or the substance of the representation." Comment  to Ill. R. Prof. Cond. R. 1.4 (2010). We find the Administrator did not prove by clear and convincing evidence that Respondent failed to keep Kemnetz reasonably informed about the status of his matter.
The only allegation in the Complaint related to Respondent's communications with Kemnetz is the following: "Between May, 2012 and April, 2013, Respondent falsely and repeatedly represented to Kemnetz that she was working on his claim." (Complaint at Count III, par. 3). The evidence before us does not support this allegation. First, it is not clear to us what "claim" this allegation addresses. Kemnetz was represented by his union, not by Respondent, in his grievance proceedings, so Respondent had no obligation to keep Kemnetz informed about those proceedings or to file a "claim." The Complaint mentions the possibility of Respondent filing an EEOC claim on Kemnetz's behalf but, as we noted in Section 1 above, the Administrator did not establish that Respondent agreed to "work on" or file an EEOC claim. Consequently, there was no claim about which she should have been keeping Kemnetz informed.
Moreover, there was no evidence that Respondent made false statements about the work she was doing on Kemnetz's matter.
We also considered the evidence related to Respondent's overall level of communication with Kemnetz and do not find clear and convincing proof of a violation of Rule 1.4(a)(3). The issue is not whether Respondent's communication was perfect, but whether there was reasonable communication in light of the situation as a whole. See In re Herrmann, 2010PR00103 (Nov. 2, 2012) (Hearing Bd. at 14-15). The circumstances here lead us to conclude Respondent's communication with Kemnetz was reasonable. Respondent did not represent Kemnetz in a legal proceeding but acted in an advisory capacity. Although there was a period of about seven weeks when Respondent was not in contact with Kemnetz, just prior to that period Kemnetz had advised Respondent of his intention to retire and withdraw all legal action. Up to that point, Respondent had communicated with Kemnetz regularly. There was no showing Kemnetz lacked information at any time during the representation. A delay in communication does not necessarily constitute a violation of Rule 1.4(a)(3). Herrmann, 2010PR00103 (Hearing Bd. at 14-15) (when there were no case developments and nothing to inform the client about, a failure to return client phone calls did not establish a failure to keep the client reasonably informed about his case). Kemnetz was frustrated with Respondent and acted within his rights to end the representation, but the fact that the representation did not meet his expectations does not establish an ethical violation.
3. Promptly Complying with Reasonable Requests for Information
We find the Administrator proved by clear and convincing evidence Respondent failed to comply with Kemnetz's reasonable request for information. Kemnetz asked Respondent for a summary of the time she spent on his case, and Respondent agreed to provide him with one.
Kemnetz's request for a summary was reasonable, and Respondent admittedly failed to comply with that request. Accordingly, we find Respondent violated Rule 1.4(a)(4).
4. Returning Fee
The Administrator did not prove Kemnetz was entitled to a refund of the fee he paid Respondent. Pursuant to the retainer agreement, Respondent's $9,250 fixed fee included a $500 consultation fee plus 25 hours of Respondent's time at the rate of $350 per hour. Kemnetz paid less than half of Respondent's fixed fee. At most, this would entitle Kemnetz to 12.5 hours of work, although there is an argument to be made that payment of less than the entire fixed fee does not entitle Kemnetz to a pro rata amount of hours. The Panel need not reach a decision on that argument, however, since there is not clear and convincing evidence that Respondent did not complete at least 12.5 hours of work on his matter.
Kemnetz's testimony that Respondent spent no time on his case is not supported by the evidence. The record indicates Respondent reviewed Kemnetz's grievance matter, prepared a two-page memo setting forth her strategy and outlining research pertinent to Kemnetz's case, and had telephone conversations and email correspondence with Kemnetz. This evidence supports Respondent's testimony that she spent at least 25 hours of work on Kemnetz's matter - certainly at least 12.5 hours. Accordingly, we find the Administrator did not prove by clear and convincing evidence that Respondent was required to refund all or part of Kemnetz's fee and did not prove violations of Rules 1.15(d) and 1.16(d).
5. Returning Documents
The Administrator did not elicit testimony from Kemnetz or submit documentary evidence pertaining to the allegation that Respondent failed to return Kemnetz's documents. As we have stated in Counts I and II, Respondent's admission that she did not return documents to Kemnetz, without more, is not sufficient to prove an ethical violation.
IV. In Count IV, Respondent is charged with failing to act with reasonable diligence and promptness in representing a client, failing to keep a client reasonably informed about the status of a matter, failing to comply with reasonable requests for information from a client, failing to promptly deliver to the client any funds or other property that the client is entitled to receive, and failing to promptly refund any part of a fee paid in advance that has not been earned in violation of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.15(d) and 1.16(d).
We find the Administrator proved Respondent failed to keep a client reasonably informed about the status of his matter and failed to comply with reasonable requests for information in the Sellers matter but did not prove the remaining allegations in Count IV.
B. Evidence Considered
The Administrator did not call John Sellers as a witness but relied on documentary evidence and Respondent's adverse testimony as proof of the charges in Count IV.
John Sellers contacted Respondent, seeking assistance with collecting unpaid compensation from his former employer. The Illinois Attorney General was also pursuing Sellers' claim. Respondent and Sellers had an initial phone consultation on or about June 5, 2012. Sellers provided Respondent a check for $500 in July 2012. (Tr. 505).
According to Respondent, she advised Sellers it was not a good idea for him to retain her because the Attorney General was already pursuing his matter. (Tr. 789). On September 17, 2012, Respondent advised Sellers she would send him a retention letter. (Adm. Ex. 11 at 29).
Also on September 17, 2012, Respondent told Sellers she had sent two letters and had "taken the first step on [his] behalf." (Adm. Ex. 11 at 29). Respondent testified she agreed to send letters to the Attorney General and Sellers' former employer as an accommodation to Sellers. According to Respondent, she prepared the letters but then decided not to mail them because she was not representing Sellers. (Tr. 791). Respondent believes she explained to
Sellers why she did not send the letters. (Tr. 793). On September 30, 2012, Sellers inquired about the letters and asked for copies of them. (Adm. Ex. 11 at 31).
On October 12, 2012, Sellers sent Respondent an email stating he had not heard from Respondent in two weeks and she had not produced any results for him in over two months. Sellers asked Respondent to refund his $500 and return his materials. (Adm. Ex. 11 at 32). On December 7, 2012, having received no communication from Respondent, Sellers again requested the return of his $500 retainer. (Adm. Ex. 11 at 34).
On December 17, 2012, Respondent advised Sellers she would return $500 to him. (Adm. Ex. 11 at 34). Respondent testified she was out of town for the holidays for two weeks and returned $500 to Sellers after she returned, in the second week of January 2012. (Tr. 797-98). When she did so, she asked Sellers to withdraw the complaint he had filed with the ARDC. (Adm. Ex. 11 at 42).
C. Analysis and Conclusions
We begin our analysis by rejecting Respondent's contention that she did not have an attorney-client relationship with Sellers.
An attorney-client relationship arises when both parties have consented, either expressly or implicitly, to its formation. In re Sax, 03 CH 99, M.R. 22139 (Mar. 17, 2008) (Review Bd. at 13). The client must indicate his approval that the attorney act on his behalf, and the attorney must indicate his acceptance. Sax, 03 CH 99 (Hearing Bd. at 32). A client's reasonable belief is a significant factor, if not the controlling factor, when deciding whether an attorney-client relationship existed. In re Snowden, 04 CH 108, M.R. 21673 (Sept. 18, 2007) (Review Bd. at 8). An attorney-client relationship has been found when the evidence shows the client reasonably believed the attorney was his or her attorney, the attorney performed functions supporting that
belief, and the attorney did not act to disavow representation. In re Gallo, 07 CH 100, M.R. 25259 (May 18, 2012) (Hearing Bd. at 19).
Respondent admitted in her Answer that she agreed to provide legal advice to Sellers, and Sellers paid her $500 for her representation. (Ans. at Count IV, pars. 1, 2). An admission in an answer is a binding admission. See In re Stoakley, 2013PR00044, M.R. 27229 (May 14, 2015) (Review Bd. at 4). Moreover, it is clear from the evidence that Sellers believed an attorney-client relationship existed and Respondent led Sellers to believe she was taking action on his behalf beyond the initial consultation. Respondent told Sellers she had "taken the first step on [his] behalf" by sending two letters. This evidence, along with Respondent's admissions, establishes an attorney-client relationship.
1. Diligence and Promptness
The Administrator did not prove that Respondent failed to act with reasonable diligence and promptness in the Sellers matter. The representation was short-lived and the Attorney General was pursuing Sellers' claim against his employer. As best we can determine, the only action Respondent promised but failed to take was to send letters to the Attorney General and Sellers' former employer. However, Respondent's testimony suggests that she changed her mind on sending these letters and communicated that to Sellers. Without more - including testimony from Sellers - the Administrator has not proved by clear and convincing evidence that these letters were supposed to be sent without delay. However, the Panel does note its displeasure with Respondent's admitted September 17, 2012 misrepresentation to Sellers that she had already sent the two letters on his behalf, when she knew full well she had not done so. The Administrator did not charge Respondent with a violation of Rule 8.4(c) for that misrepresentation or specifically allege it in the Complaint, and so the Panel cannot find misconduct under Rule 8.4(c) associated with that misrepresentation. See In re Karavidas, 2013
IL 115676, par. 73 ("An attorney's procedural due process rights, including the right to fair notice and the right of an opportunity to defend against all charges would be violated if an attorney were disciplined for uncharged misconduct.").
2. Keeping Client Reasonably Informed
We find the Administrator proved by clear and convincing evidence that Respondent failed to keep Sellers reasonably informed about the status of his matter, in violation of Rules 1.4(a)(3) and 1.4(a)(4). In response to Sellers' inquiries about the status of his matter, Respondent indicated she had sent letters to his former employer and to the Attorney General when in fact she had not. According to Respondent, she informed Sellers she decided not to send the letters, but the evidence indicates otherwise. Even though Sellers did not testify, it is clear from his email inquiry that he remained under the impression Respondent had sent the letters. In any event, Respondent's failure to provide accurate information to Sellers in response to his requests - rather than misrepresenting that letters had been sent when they had not been-- constitutes a violation of Rule 1.4(a)(3). See In re Djordjevic, 2013PR00080, M.R. 27004 (Jan. 16, 2015) (Hearing Bd. at 13) (failure to provide client with essential and accurate information that would allow him to make basic decisions regarding his case was a violation of Rule 1.4(a)(3)).
3. Promptly Complying with Reasonable Requests for Information
Sellers specifically asked Respondent about the letters she said she sent and requested copies of the letters. Respondent did not promptly respond to Sellers' requests - and when she did respond on one occasion, she provided false information. Her failure in this regard constitutes a violation of Rule 1.4(a)(4). "[W]hen a client makes a reasonable request for information . . . paragraph (a)(4) requires prompt compliance with the request." Comment  to Ill. R. Prof. Cond. R. 1.4.
4. Returning Fee
Rule 1.15(d) requires an attorney to "promptly deliver" to the client any funds the client is entitled to receive. Respondent refunded Sellers' $500 fee, although it took her about four weeks from the time the relationship ended to do so. Respondent was out of town for the holidays for two of those weeks. Under these circumstances, Respondent's conduct did not rise to the level of a violation of Rules 1.15(d). See In re Stahnke, 2008PR00101, M.R. 25590 (Nov. 19, 2012) (Hearing Bd. at 29) (no violation of rule requiring prompt delivery of funds when attorney paid escrow funds owed to the client approximately three weeks after the client became entitled to receive the funds).
Rule 1.16(d) required Respondent to "take steps to the extent reasonably practicable" to protect Sellers' interests after the representation ended, including "refunding any advance payment of fee or expense that has not been earned or incurred." Respondent refunded the entire amount Sellers paid to her, so we find no Rule 1.16(d) violation.
V. In Count V, Respondent is charged with failing to respond to a lawful demand for information from the Commission and engaging in conduct prejudicial to the administration of justice, in violation of Rules 8.1(b) and 8.4(d).
Based on Respondent's admissions that she did not respond to requests for information or appear for a sworn statement in any of the matters at issue in this proceeding, the Administrator proved Respondent failed to respond to a lawful demand for information from the Commission and engaged in conduct prejudicial to the administration of justice.
B. Evidence Considered
Commission investigator Cheryl Bauer made five attempts to personally serve Respondent with a subpoena for her sworn statement, none of which were successful. Bauer also
attempted to personally serve Respondent with the Complaint in this matter, without success. (Tr. 79-82).
In her Answer, Respondent admits she did not respond to the Administrator's requests for information in the Bauer, Sellers, Kemnetz and Mamon matters. Respondent requested additional time to respond regarding the Bauer and Sellers matters, but never submitted responses. Respondent further admits she did not appear for sworn statements in any of the matters at issue. (Answer at Count V, pars. 3, 4, 7).
C. Analysis and Conclusions
1. Failing to Respond to Lawful Demand for Information
A lawyer in connection with a disciplinary matter shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority. Ill. Rs. Prof'l Conduct R. 8.1(b) (2010). Illinois attorneys are obligated to cooperate with the Illinois Supreme Court and its agency, the Attorney Registration and Disciplinary Commission, in the performance of its duty to police the legal profession. In re Zisook, 88 Ill. 2d 321, 331, 430 N.E.2d 1037 (1982). Respondent admits she did not submit responses to the Administrator's requests for information about the matters before us or comply with subpoenas for her sworn statement. Based on Respondent's admissions and the evidence presented, we find the Administrator proved by clear and convincing evidence Respondent violated Rule 8.1(b)
2. Prejudice to the Administration of Justice
The failure to comply with requests for information delays the disciplinary process and impedes the Administrator's ability to obtain relevant facts about Respondent's conduct, which results in actual prejudice to the administration of justice. See In re Cannon, 2011PR00051, M.R. 27055 (Jan. 16, 2015) (Hearing Bd. at 27). Based on Respondent's admissions that she did not
cooperate with the investigation of the matters at issue, we find the Administrator proved Respondent violated Rule 8.4(d).
EVIDENCE IN AGGRAVATION AND MITIGATION
The Administrator presented the testimony of Joel M. Silberberg, M.D. Dr. Silberberg is board certified in psychiatry and forensic psychiatry. (Tr. 180). He interviewed Respondent on November 17, 2014 and March 9, 2015. (Tr. 200-201).
Dr. Silberberg's review of Respondent's medical records revealed that Respondent has suffered from depression since she was 18 years of age. She had several periods of serious relapse, during which she stopped communicating with people. (Tr. 189-90). She also has a history of severe migraines that incapacitate her for significant periods of time. (Tr. 199).
Respondent reported to Dr. Silberberg that by mid-August 2012 her depression had overwhelmed her. It interfered with her ability to concentrate and communicate with her clients. She could not keep up with her workflow and was isolating herself. (Tr. 207). The depression worsened after August 2012. (Tr. 210). Respondent started to come out of the depression in early to mid-2013. (Tr. 209).
When Dr. Silberberg interviewed Respondent in November 2014, her mood was stable and her concentration was "okay." (Tr. 209). Dr. Silberberg diagnosed her with major depressive disorder in remission. (Tr. 211-12). He also diagnosed her with iron deficiency anemia, which can contribute to or cause depression, and migraines, which were pertinent to her depression. (Tr. 213).
Dr. Silberberg opined there was a nexus between Respondent's severe depression and some of her conduct in the matters at issue, as well as between her migraines and some of her
conduct. (Tr. 217-18). In November 2014, Dr. Silberberg was of the opinion that Respondent was fit to practice law if she complied fully with his four recommendations, which included obtaining combined therapy from a psychiatrist, taking legal education courses to improve her accountability and effectiveness as an attorney, obtaining a mentor for her law practice, and obtaining treatment for her migraines. (Tr. 220-26). He stated that obtaining sustained treatment for depression is important to prevent relapse. (Tr. 229).
Following Respondent's deposition, the Administrator asked Dr. Silberberg to evaluate Respondent a second time. The second evaluation took place on March 9, 2015. (Tr. 230). An email from counsel for the Administrator to Dr. Silberberg stated Respondent "appeared extremely anxious during the first 30 to 45 minutes of her deposition," and described her level of anxiety as "shocking." Counsel for the Administrator expressed concern "that mental health issues may be at play, especially since her presentation at the deposition was so different from what you described in your evaluation report." (Resp. Ex. 210). Respondent had advised counsel for the Administrator that she was not feeling well at the time of her deposition. (Resp. Ex. 210).
Dr. Silberberg observed that Respondent's attention and concentration were significantly worse during the second interview than when he first interviewed her. (Tr. 239-40). Dr. Silberberg was of the opinion Respondent had not made an effort to comply with all of his recommendations and was not taking responsibility for her own behavior. (Tr. 241). Respondent had seen her psychiatrist, Dr. Cigante, and had asked attorney Radke to be her mentor. (Tr. 244). She had obtained the name of a neurologist for treatment of her migraines but had not yet been able to get in to see the neurologist. (Tr. 242).
After the second evaluation, Dr. Silberberg's diagnosis of Respondent was very similar to his initial diagnosis except he found her depression to be in partial remission instead of full remission. (Tr. 248). In Dr. Silberberg's opinion, Respondent exhibited symptoms of major depressive disorder, including irritability and difficulties with attention and concentration. (Tr. 250). In his second written report, Dr. Silberberg opined, "Miss Beckert is currently fit to practice law with reasonable judgment and skill, and to adhere to the rules of professional conduct provided she is actively engaged in treatment and professional monitoring for her major depression, recurrent, to prevent relapse. The treatment must involve strategies to recognize migraines, to recognize early signs of relapse, depression. Treatment of aggravating conditions, such as thyroid illness, migraine, iron deficiency anemia. Also the development of insight into her responsibility when she lost control of her professional life in 2011 and 2012." (Adm. Ex. 17 at 7, emphasis in original (admitted as Respondent's exhibit under seal)).
In his direct examination testimony, Dr. Silberberg stated Respondent could be fit to practice law if she has sustained compliance with his recommendations for a period of time. (Tr. 251-52). He further testified Respondent was not fit to practice law based on her condition in March 2015. (Tr. 252). He stated her prognosis would be "okay" if she had sustained compliance with his recommendations. (Tr. 255). Dr. Silberberg would not say Respondent is fit to practice without re-evaluating her. He believes she needs at least six months of treatment before he could re-evaluate her. (Tr. 261).
On cross-examination, when asked if he had changed his opinion regarding Respondent's fitness to practice law since he issued his second report, Dr. Silberberg answered, "No, that is my opinion." (Tr. 277).
Respondent has been licensed to practice law in Illinois since 1986. She practiced employment law and environmental law with several law firms until 2002 when she started her own practice. (Tr. 720-29).
Respondent has received treatment for depression since she was in college. (Tr. 732). Prior to the incidents at issue in this matter, Respondent's depression was under control and did not interfere with her legal work. (Tr. 733).
Respondent has also suffered from migraines since she was in high school. She did not seek treatment for them until 2012 because it was her understanding there was not much treatment available. (Tr. 734).
In 2012, Respondent's sister and father had serious health problems. In addition, due to a dispute with her landlord, Respondent was forced to move her home and office on short notice. Respondent also felt her antidepressants had lost their effectiveness. In Respondent's view, these circumstances led to her severe depression. (Tr. 735-36).
Respondent stopped opening her mail around the time she moved in October 2012 and did not open mail for about a year and a half. (Tr. 804). During that time she did not read her email or check her voicemail. (Tr. 430-31). Respondent expressed that she understands what she did wrong and is very sorry. (Tr. 423, 768).
Respondent testified that on December 11, 2014, after she received Dr. Silberberg's first report and recommendations, she made an appointment with her physician and obtained referrals for a psychiatrist and neurologist. She began seeing her psychiatrist on December 30, 2014, and currently sees him twice a month for psychotherapy and medication management. (Tr. 546, 819,
878). Respondent takes an antidepressant and intends to continue taking her prescribed medications. (Tr. 820).
Initially, Respondent could not get an appointment with a neurologist until April 2014 but asked to be put on a waiting list. (Tr. 544-45). She was able to see the neurologist a couple of days after her second meeting with Dr. Silberberg. (Tr. 549). The neurologist wants to see Respondent every six months, and Respondent has a follow-up appointment in September 2015. (Tr. 815).
Respondent asked attorney Arthur Radke, her counsel in this matter, to act as a monitor of her practice, and attorney Radke agreed to do so. If the Administrator suggested another attorney to act as a monitor, Respondent would be willing to work with that person. (Tr. 817).
Robert Bauer testified his experience with Respondent was disheartening and negatively impacted his opinion of attorneys. (Tr. 638-39). Terry Kemnetz testified his experience with Respondent was frustrating and devastating. (Tr. 675-76). Jesse Mamon testified his wife, Carol, was very upset when they were not able to reach Respondent and did not know what was happening with Carol's appeal. (Tr. 169).
Andrew Oliva, ARDC registrar, testified Respondent was removed from the Master Roll of Attorneys on March 22, 2014, for failing to comply with yearly registration requirements. Respondent completed her registration requirements in April 2015. In December 2014, Respondent was removed from the Master Roll of Attorneys for failing to comply with minimum continuing legal education (MCLE) requirements. As of the hearing in this matter, Respondent had not completed her MCLE requirements and was not authorized to practice law in Illinois. (Tr. 94-95, 97-98).
Respondent does not have prior discipline.
We recommend Respondent be suspended from the practice of law for six months and until further order of the court, with the suspension stayed after 90 days by one year of probation. We base this recommendation on our finding that the majority of Respondent's misconduct was causally related to her severe depression and migraines, for which Respondent is now receiving treatment.
The purpose of the disciplinary process is not to punish an attorney who has committed misconduct, but to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Edmonds, 2014 IL117696, par. 90 (Nov. 20, 2014). In making our recommendation to the Court, we consider the nature and seriousness of the misconduct as well as any aggravating and mitigating circumstances. See Edmonds, 2014 IL117696 at par. 90.
The court has imposed sanctions ranging from censure to disbarment for attorneys who neglect client matters. See In re Chapman, 95 Ill. 2d 484, 492, 448 N.E.2d 852 (1983), and cases cited therein. In cases where suspension is warranted but the attorney suffered from a disability or disorder that was causally related to the misconduct, it may be appropriate to stay all or part of a term of suspension. Chapman, 95 Ill. 2d at 492.
Based on Dr. Silberberg's opinion that some of Respondent's conduct was causally related to her major depressive disorder and migraines, we consider Respondent's condition as mitigation in the Bauer, Kemnetz and Sellers matters. Respondent's impairments do not mitigate
her misconduct in the Mamon matter, because that conduct pre-dated the onset of Respondent's severe depression. Respondent's depression became severe in mid-2012, and she failed to act diligently in the Mamon matter in 2010 and 2011.
We also consider in mitigation that Respondent expressed remorse for her conduct and has no prior discipline. In addition, although it does not excuse her conduct, we consider the stressful circumstances in Respondent's life including family members' health problems and the eviction from her home and office in October 2012.
In aggravation, Respondent's conduct was not an isolated incident. Respondent also caused harm to Carol Mamon by failing to follow through with her appeal to Prudential and caused Carol, Bauer and Kemnetz anxiety and frustration. Additionally, we consider in aggravation Respondent's failure to cooperate with the Administrator during the investigations of the matters before us, and her lack of participation in the proceedings until attorney Radke entered his appearance.
The Administrator asks us to recommend that Respondent be suspended for one year and until further order of court. Respondent suggests a censure or suspension stayed by probation is appropriate. The Administrator's suggested sanction assumes that we find Respondent committed all of the charged misconduct, which we do not. For this reason, we do not find the Administrator's cited cases applicable and do not consider a one-year suspension to be an appropriate sanction.
The Court has imposed suspensions until further order of the court when an attorney's conduct is related to a mental health condition and the attorney has not obtained necessary treatment or has failed to show he or she is unlikely to harm the public during a period of treatment. In re Duval, 2012PR00018, M.R. 26849 (Sept. 12, 2014) (Hearing Bd. at 33). Here,
Respondent's conduct was related to a mental health condition but she demonstrated to us that she has obtained treatment and is not likely to harm the public while her treatment continues.
In requesting a suspension until further order of the court, the Administrator relies on the testimony of Dr. Silberberg that Respondent is not currently fit to practice and will not be fit until she demonstrates a sustained period of compliance with his four recommendations. This case presents the unusual situation of a medical expert who gave inconsistent testimony regarding Respondent's fitness to practice. We find Dr. Silberberg's testimony on direct examination that Respondent is not currently fit to practice law to be a significant change from the following opinions expressed in his written reports.
In his first report, Dr. Silberberg opined, "Ms. Beckert is currently fit to practice law with reasonable judgment and skill and to adhere to the rules of professional conduct provided she is actively engaged in treatment for her Major Depression, Recurrent and professional monitoring to prevent relapse" In his second report, Dr. Silberberg opined, "Ms. Beckert is currently fit to practice law with reasonable judgment and skill and to adhere to the rules of professional conduct provided she is actively engaged in treatment and professional monitoring for her Major Depression, Recurrent to prevent relapse. The treatment must involve strategies to recognize early signs of relapse of depression, treatment of aggravating conditions such as thyroid illness, migraines and iron deficiency anemia; and also the development of insight into her responsibility when she lost control of her professional life in 2011-2012." And yet, when asked if he had changed the latter opinion since he issued it in his second report, Dr. Silberberg answered, "No, that is my opinion." Thus, we are uncertain about the basis for his testimony at the hearing that Respondent is not currently fit to practice law.
Because of the inconsistency between the testimony and the reports and the lack of explanation for the inconsistency, we decline to rely on Dr. Silberberg's testimony that Respondent is not currently fit to practice. We find the opinions set forth in his written reports more reliable and consistent with the evidence before us. Having carefully considered all of the evidence, we find Respondent is currently fit to practice law provided that she continues to comply with treatment recommendations. We further find Respondent has complied with the recommendations addressing the mental and physical issues that were causally connected to the misconduct.
As Dr. Silberberg acknowledged, Respondent has been receiving psychotherapy and medication management from her psychiatrist, Dr. Cigante. She has also seen a neurologist for treatment of her migraines. Although she had not been able to get an appointment with the neurologist before her most recent meeting with Dr. Silberberg, she did see the neurologist shortly thereafter and has a plan to follow up with him every six months.
Respondent also obtained attorney Radke's agreement to act as a mentor and monitor of her practice. While Dr. Silberberg expressed concern about Respondent's reliance on attorney Radke, who represented Respondent in this proceeding, we observed both Respondent and attorney Radke during the hearing in this matter and do not share Dr. Silberberg's concerns. Attorney Radke is a very capable attorney, and he and Respondent appeared to work well with each other.
Dr. Silberberg noted in his second report that Respondent had not complied with his recommendation to "attend any classes/professionalism courses recommended by ARDC at the frequency and duration required by ARDC to improve her efficiency, accountability and effectiveness as an attorney." We question Dr. Silberberg's qualifications to make such a
recommendation and do not find that Respondent's lack of compliance with this particular recommendation negatively impacts her fitness to practice law. As a general principle, the Illinois Supreme Court governs attorney legal education obligations. It is not the role of a medical expert to recommend legal education requirements for a respondent. Respondent testified she has been working toward fulfilling her mandatory legal education requirements and is aware she must do so in order to return to active status. In our view, no additional legal education requirements are necessary. Therefore, we do not adopt Dr. Silberberg's recommendation in this regard.
The evidence demonstrated that Respondent has obtained treatment for her depression and migraines, has credibly expressed her intention to maintain treatment in the future, and has obtained a mentor to assist with her practice. This is not a situation in which Respondent is unable or unwilling to acknowledge the need for treatment, or is currently unable to adhere to the Rules of Professional Conduct. We believe the purposes of the disciplinary process will be best served by a suspension stayed in part by probation, subject to conditions. That said, given that Respondent's prior untreated depression led to significant adverse impacts on the matters at issue in this proceeding, we believe that, if Respondent should violate the terms of her probation, she should be suspended until further order and required to demonstrate that she is fit to return to practice.
Supreme Court Rule 772 provides that an attorney may be placed on probation if she demonstrates that she
(1) Can perform legal services and the continued practice of law will not cause the courts or the legal profession to fall into disrepute;
(2) Is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;
(3) Has a disability which is temporary or minor and does not require treatment and transfer to inactive status; and
(4) Is not guilty of acts warranting disbarment.
The requirements for probation are met in this case. Respondent is an experienced lawyer who capably represented clients when she was not suffering from severe depression. Her depression is in partial remission and does not require transfer to inactive status. Respondent's continued compliance with her treatment recommendations can and will be monitored throughout the probationary period, which will protect the public and legal profession. If she complies with the recommended probationary conditions, we consider the risk of future misconduct to be minimal. As a protective measure, a suspension until further order of the court will go into effect if Respondent fails to comply with any of the probationary conditions.
We believe Respondent's misconduct warrants a short period of actual suspension, particularly given that the misconduct in the Mamon matter was not related to her depression. A suspension of six months and until further order of the court, stayed after 90 days by one year of probation, is appropriate and consistent with the following cases, which involve misconduct similar to Respondent's as well as evidence of a disability that contributed to the misconduct.
The attorney in In re Thomson, 98 CH 81, M.R. 17012 (Nov. 22, 2000), neglected eight client matters, most of which were bankruptcy matters, and failed to return unearned fees. Thomson suffered from debilitating alcoholism at the time of his misconduct but had regained his sobriety at the time of the hearing. Because Thomson had not made an effort to return any of the unearned fees at the time of the hearing, the majority of the Hearing Board Panel determined a short period of actual suspension was warranted, but the remaining portion of the suspension would be stayed by probation. The Panel noted that probation is appropriate when an attorney has committed misconduct occasioned by a disability. Probation, when combined with a stay of
a portion of a suspension, "provides a strong incentive for the attorney to continue on the path toward rehabilitation." Thomson, 98 CH 81, Hearing Bd. at 31-32, citing In re Kunz, 122 Ill. 2d 547, 524 N.E.2d 544 (1988). Thomson was suspended for three years and until further order of the court, with all but the first three months stayed by three years of probation.
The attorney in In re Kofkin, 07 CH 23, M.R. 22643 (Nov. 18, 2008), was suspended for one year and until further order of the court, with the suspension stayed after 60 days by two years of probation. Kofkin neglected four client matters, failed to return unearned fees to two clients, and failed to cooperate with the Administrator's investigation. The Administrator's psychiatric expert diagnosed Kofkin with recurrent major depression during the time of the misconduct, and found a causal relationship between Kofkin's condition and some of the misconduct. Similar to Respondent, Kofkin pursued mental health treatment as recommended by the Administrator's expert.
In In re Burkhart, 09 CH 99, M.R. 25174 (Mar. 19, 2012), the attorney neglected four patent matters over a four-year period and improperly used the name of a deceased attorney in the name of his law firm. Burkhart entered into a settlement agreement in connection with three of the neglected matters but was not able to make full restitution due to problems with depression. Burkhart began treatment for his depression prior to the filing of the disciplinary complaint. At that time he had limited concentration and ability to organize and stopped practicing law. His condition improved over time. The Administrator's psychiatric expert diagnosed Burkhart with recurrent major depressive disorder, largely in remission, and a personality disorder, not otherwise specified. The Administrator's expert opined that Burkhart could practice law in accordance with the Rules of Professional Conduct if he remained in treatment with a mental health professional and obtained a primary care physician. Burkhart was
suspended for one year and until further order of the court, with all but the first 90 days stayed by a two-year period of probation.
Like the attorneys in the foregoing cases, Respondent has taken steps to address the mental health issues that contributed to her misconduct and has indicated her commitment to treatment. A period of probation will allow Respondent to be monitored to ensure she can provide legal services without harm to the public, with the added protection of additional suspension in the event of noncompliance with the probation conditions.
Accordingly, we recommend that Respondent, Anne Marie Beckert, be suspended for six months and until further order of the court, with the suspension stayed after 90 days by a one-year period of probation, subject to the following conditions:
1. Respondent shall attend meetings scheduled by the Commission's probation officer as requested by the Administrator. Respondent shall submit quarterly written reports to the Administrator concerning the status of her law practice and the nature and extent of her compliance with the conditions of probation;
2. Respondent shall notify the Administrator within fourteen days of any change of address;
3. Respondent shall comply with the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigations relating to her conduct;
4. Respondent shall reimburse the Commission for the costs of this proceeding up to the limits set by Supreme Court Rule 773;
5. At least thirty (30) days prior to the termination of the period of probation, Respondent shall reimburse Robert Bauer the $1,000 paid to Respondent for costs;
6. Probation shall be revoked if Respondent is found to have violated any of the terms of probation. The remaining suspension of three months and until further order of the court shall commence from the date of the determination that any term of probation has been violated;
7. Respondent shall continue receiving treatment from her current treating mental health professionals or other mental health professionals acceptable to the Administrator and shall comply with all treatment recommendations, including the taking of medications as prescribed;
8. Respondent shall provide to her mental health professionals an appropriate release as required under the Confidentiality Act of the Mental Health Code, 740 ILCS 110/1 et seq., authorizing the treating professionals to: (1) disclose to the Administrator on at least a quarterly basis information pertaining to the nature of Respondent's compliance with any treatment plan established with respect to Respondent's condition; (2) promptly report to the Administrator Respondent's failure to comply with any part of an established treatment plan; and (3) respond to any inquiries by the Administrator regarding Respondent's mental or emotional state or compliance with any established treatment plans;
9. Respondent shall continue receiving treatment from her current physician who is treating her migraines and shall comply with all treatment recommendations, including the taking of medications as prescribed;
10. Respondent shall notify the Administrator within fourteen days of any change in her treating mental health professionals or physicians;
11. If Respondent successfully completes the terms of probation, probation will terminate without further order of the Court.
Jeffrey S. Torosian
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 onNovember 20, 2015.
Kenneth G. Jablonski, Clerk of the
1The following pages of the Administrator's group exhibits were admitted: Adm. Ex. 1 pp. 3-6, 8, 12, 18-22, 23-24, 29-33, 34, 35, 36, 39, 40-41, 42-43, 48-52, 54-56, 57, 59-79, 97-99, 118, 120-121; Adm. Ex. 2 pp. 2-8; Adm. Ex. 3 pp. 1-4, 5-14, 22-27; Adm. Ex. 4 pp. 8-18; Adm. Ex. 10 pp. 5-8, 48, 54-59, 61, 62, 64; Adm. Ex. 11 pp. 28, 29, 31-35, 42; and Adm. Ex. 14 pp. 1-2.
2The retainer agreements addressed in Counts I-III also contained provisions entitling Respondent to a percentage of any proceeds clients received in connection with their claims, but there were no such proceeds in any of the matters before us.
3The schedule gives a completion date of March 23, 2011, but that date is a typographical error given that Bauer and Respondent first met in 2012.