Filed September 9, 2016
In re Michael Jerome Moore
Commission No. 2015PR00076
Synopsis of Hearing Board Report and Recommendation
The Administrator filed a four-count Complaint against Respondent. Count I charged that Respondent, in representing a client in a criminal matter, engaged in a business transaction without making proper disclosures and acted dishonestly. Count I further alleged, as did Count II, that Respondent left voice messages for third persons that had no substantial purpose other than to embarrass, delay or burden that person. In Count III Respondent was charged with failing to competently represent a client in a criminal appeal and failing to act diligently. Count IV, which involved the Administrator's investigation of Respondent, charged that he failed to produce documents in response to a request by the Administrator.
The Hearing Board reviewed the evidence and found that Respondent engaged in misconduct by leaving the voice messages as alleged in Counts I and II, and he also failed to act with diligence and provide competent representation as charged in Count III. After considering the mitigating and aggravating circumstances, the Hearing Board recommended a suspension of sixty days.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
MICHAEL JEROME MOORE,
Commission No. 2015PR00076
REPORT AND RECOMMENDATION OF THE HEARING BOARD
SUMMARY OF THE REPORT
Respondent was charged with engaging in misconduct with respect to three client matters and an ARDC investigation. As to Counts I and II, the hearing panel found that Respondent, in representing a client, left offensive voice messages for a third person and thereby engaged in conduct that had no substantial purpose other than to embarrass or burden that person. As to charges in Count I that Respondent engaged in a business transaction without proper disclosures and acted dishonestly, those charges were not proved. With respect to Count III, the hearing panel determined that Respondent failed to provide competent representation and failed to act with reasonable diligence and promptness in representing a client in a criminal appeal. The Hearing Panel found no misconduct relating to Respondent's response to the Administrator's request for documents, as charged in Count IV. After considering the mitigating and aggravating circumstances, the hearing panel recommended that Respondent be suspended for sixty days
The hearing in this matter was held on June 14, 2016 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a hearing panel consisting of Henry
T. Kelly, Chair, Kenya A. Jenkins-Wright and Justine A. Witkowski. Melissa A. Smart represented the Administrator. Respondent Michael J. Moore ("Respondent") appeared pro se.
On August 26, 2015, the Administrator filed a four-count Complaint against Respondent alleging that he engaged in misconduct in connection with his representation of three clients, and failed to respond to document requests by the Administrator.
In Respondent's answer filed on March 4, 2016, he admitted some of the factual allegations of the Complaint, denied others, and denied engaging in any professional misconduct.
Respondent was charged with engaging in the following misconduct in violation of the 2010 Illinois Rules of Professional Conduct: 1) entering into a business transaction with a client without full disclosure in violation of Rule 1.8(a) (Count I); 2) using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person in violation of Rule 4.4(a) (Counts I, II); 3) conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) (Count I); 4) knowingly failing to respond to lawful demands for information from a disciplinary authority in violation of Rule 8.1(b) (Count IV); and 5) conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d)(Count IV).
Count III charged Respondent with violating the following Wisconsin Rules of Professional Conduct: failing to provide competent representation to a client in violation of Rule 20:1.1 and failing to act with reasonable diligence and promptness in representing a client in violation of Rule 20:1.3.
The Administrator presented the testimony of Leon Buchanan, Jr., Aharon Adler, and Respondent, and offered exhibits 1-24, which were admitted into evidence. Respondent testified on his own behalf.
FINDINGS AND CONCLUSIONS
In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991). Our findings are made in accordance with this standard.
Respondent was licensed to practice law in Illinois in 1986. He handles civil and criminal cases out of his home and from the offices of the Blind Services Association ("BSA"). Because Respondent is visually impaired, he receives secretarial, clerical, reading and technical assistance from the BSA. (Tr. 118).
I. Respondent is charged with entering into a business transaction with a client without full disclosure, using means that have no substantial purpose other than to embarrass, delay, or burden a third person, and engaging in dishonesty, fraud, deceit or misrepresentation
In representing a client in a criminal matter, Respondent engaged in misconduct by leaving voice messages for a third person that had no substantial purpose other than to
embarrass, delay or burden that person. Respondent did not engage in a business transaction with a client without disclosures, nor did he engage in any dishonest conduct.
B. Admitted Facts and Evidence Considered
Leon Buchanan, Jr. ("Buchanan") is the father of Leon Buchanan, III ("Leon"). Buchanan testified that in or about December 2012, he hired Respondent to defend his son in connection with an altercation that led to criminal charges. Buchanan acknowledged that the initial fee negotiation and payment of money was between Respondent and Leon's girlfriend, Stephanie Graham, but denied that no negotiation occurred between himself and Respondent. Buchanan believed Respondent's $3,500 fee would cover all the work on the case, and he did not anticipate paying Respondent any additional amount. He recalled Respondent stating he could take care of the case with no problems. When Buchanan checked with other lawyers, he learned a case such as his son's case would typically cost $5,000. (Tr. 27-33, 45-46, 69).
Respondent testified he was contacted by Buchanan and Leon's girlfriend in December 2012, at which time he agreed to handle Leon's entire case for $3,500. He noted there was no written fee agreement or mention of a "flat fee." Respondent agreed to collect the fee in full, and received $3,500 from Leon's girlfriend. He recalled disclosing at the outset that if the case went on for a long time, he would address any fee adjustments in the future. (Tr. 121-22, 126, 193).
Respondent admitted that as a result of his attorney-client relationship with Leon, he owed Leon fiduciary duties, including a duty to exercise the utmost good faith and fair dealing in all of his interactions with Leon and Leon's agents, a duty of undivided loyalty, a duty of care, and a duty to avoid placing himself in a position where his interests would conflict with the interests of his clients. Respondent further admitted he owed Leon and Leon's agents a duty to avoid undue influence, and a duty to avoid taking advantage of the position of authority and trust he held as Leon's attorney. (Ans. par. 2-3).
Respondent testified he visited Leon in jail many times, represented him with good faith, care and loyalty, did not exert any undue influence, gave exaggerated attention to Leon's case, made requests for a speedy trial, appeared in court on motions, and was successful in having evidence of Leon's past conduct excluded. The case was delayed two or three times due to the court's schedule. Respondent recalled that because the case was taking so much time, Leon volunteered to pay him additional money after his release from jail. (Tr. 193-95, 198).
Respondent testified that after working on the case for two years, he met with Buchanan and Graham and made a modest proposal for an additional fee of $500. He advised them it was not unusual for an attorney to ask for an additional fee depending on the length of a case; the fee was in Respondent's interest; there would be no further requests for fees; if they could not reach an agreement, they could pursue other counsel; and sometimes a fee conflict is reviewable in court. Respondent believed he made adequate disclosures to Buchanan in keeping with his fiduciary responsibility, and he denied acting dishonestly. He received $200 from Buchanan. (Tr. 122-27, 196-99, 201, 212-14).
Buchanan viewed Respondent's representation differently. He testified he was seriously dissatisfied with the way Respondent handled Leon's case, and did not see much that was accomplished. He thought Respondent was responsible for the case being delayed, described Respondent as a child playing games with people, and thought Respondent was agreeing with the judge rather than working for Leon who, according to Buchanan, also seemed to be dissatisfied with Respondent's representation. Buchanan further noted that Respondent never obtained the doctor's report of injuries suffered in the altercation. He acknowledged that Respondent visited Leon in jail on one occasion; succeeded in excluding evidence of Leon's past conduct; and
expressed concerns about the length of the proceeding and the charges brought against Leon. (Tr. 46-57, 70-72, 81).
Buchanan recalled that Respondent kept calling and asking for more money. Buchanan paid an additional $200, even though he felt Respondent did nothing. Buchanan testified Respondent did not advise him to consult with independent counsel regarding the change in the fee arrangement, nor did Respondent tell him the request for additional fees was contrary to the original agreement or that Buchanan had no obligation to pay more money. Further, Respondent did not use the term "conflict of interest." Buchanan denied that Respondent provided any explanation for his request or advised him that fee adjustments happen in lengthy cases, and denied consenting to a change in the original agreement. (Tr. 31-34, 41-42, 66-67, 83).
Buchanan testified that during the phone calls from Respondent, Respondent cursed Buchanan and his family and used demeaning language, which was very upsetting for Buchanan. Buchanan began taping the telephone calls and eventually played the tape for a representative of the ARDC. Buchanan no longer possesses the recordings due to a problem with his phone, but confirmed that Respondent made the following statements:
You are a piece of garbage. All black people are alike. You're slovenly, ignorant.
You better give me my money or your son's case is going to be delayed.
I'm sick of you, you piece of shit.
I don't know who's the biggest bitch. You or [family]. I'm going to lock you up.
Low class n-----s. I'm going to have you all locked up.
You call me with stupid shit. Wait until next court date.
You have until 5:00 on Thursday. $300, no $500 check... Or on Friday I'll withdraw. I already told the State's Attorney to writ your son over.
You are such a pussy. They are going to writ him over. I tried to tell your stupid ass. Other lawyers would charge $10,000 for this case. Start planning for another lawyer.
You're ugly, low class, ignorant. I'll finish with you when he gets off. You're demeaning your son.
Help your son. Pay. Stop delaying case.
(Tr. 33, 36-41, 67, 85-86).
During the time period of the phone calls, Leon was in jail waiting for his trial. The messages caused Buchanan to worry, feel disgraced, and think his son's case would be jeopardized if Respondent did not receive more money. Buchanan recalled acting like a gentleman toward Respondent and denied ever being rude or disrespectful to him, but he did acknowledge being upset at Respondent for cursing and hanging up on him. Respondent had not been previously disrespectful to Buchanan. (Tr. 33, 35, 38-41, 73-76, 79, 84-85).
Respondent admitted making the statements set forth above. He testified that after money became an issue, Buchanan was consistently rude and disrespectful and began criticizing Respondent's representation of Leon and hanging up on him. Respondent believes Buchanan is a "typical deadbeat." (Tr. 128-30, 142, 197-98).
With respect to the specific statements in the voice messages, Respondent testified when he told Buchanan that Leon's case could be delayed, he was referring to the fact that a hearing over a fee dispute would delay the case. When he said he was going to have Buchanan "locked up," he was reminding Buchanan of an earlier incident in court when the judge had threatened to lock up an attorney who appeared and objected to Respondent's representation of Leon on the basis of Respondent's visual impairment. Respondent acknowledged telling Buchanan he had to make a decision about the fee by a certain time or Respondent would withdraw and Buchanan would have to get another attorney. (Tr. 131, 136-40, 200).
Buchanan testified he did not want to keep giving money to Respondent, and therefore he found a new attorney to represent his son. Respondent did not appear at trial on behalf of Leon, who ended up serving three years in jail. Buchanan did not recall any attorney appearing in court to object to Respondent's representation. (Tr. 34, 43, 55, 59-64, 127).
C. Analysis and Conclusions
1. Business transaction with client (Rule 1.8(a))
The Administrator alleged, and Respondent admitted, that he owed certain duties to his client, including a fiduciary duty to avoid any conflict of interest, a duty to avoid any undue influence and a duty to avoid taking advantage of his position of authority. The Administrator further alleged that Respondent, in requesting additional fees after receiving full payment of a flat fee, failed to explain that his interests were in conflict with their interests, failed to obtain Leon's or his father's consent after disclosures, failed to advise Leon or his father to consult with independent counsel and, as a result, exercised undue influence over Leon.
InIn re Karavidas, 2013 IL 115767, par. 73, 79, 103 the Court stated that charges of misconduct must be tethered to a particular disciplinary rule and attorneys can only be disciplined for misconduct that violates the rules. Prior to the Court's decision in Karavidas, attorneys who attempted to modify fee agreements were typically charged with breach of fiduciary duty or overreaching. See In re Crane, 96 Ill. 2d 40, 449 N.E.2d 94 (1983); In re Woodcock, 2011 PR 00005, M.R. 25967 (May 22, 2013). Those charges, based on common law principles, are no longer valid as stand-alone charges.
In this case the Administrator has tethered his allegations of undue influence and overreaching to Rule 1.8(a) which states that "a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory or other pecuniary interest adverse to a client" unless: 1) the terms are fair and disclosed in writing; 2) the client is informed in
writing of the right and opportunity to seek independent legal counsel on the transaction; and 3) the client gives informed consent in writing to the terms of the transaction and the lawyer's role in the transaction. The Administrator charged that Rule 1.8(a) was violated "by conduct including overreaching the attorney-client relationship by requesting additional legal fees over the flat fee agreement without making adequate disclosures or obtaining informed consent from his client."
Despite the Administrator's assumption that fee agreements fall within the scope of Rule 1.8(a), we are not convinced of that fact. The comments to Rule 1.8 gives the following examples of what can constitute a business, financial or property transaction with a client: "a loan or sales transaction or a lawyer investment on behalf of a client;" "lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer's legal practice;" and "lawyers purchasing property from estates they represent." The comments further state that
[The Rule] does not apply to ordinary fee arrangements between client and lawyer, which are governed by Rule 1.5, although its requirements must be met when the lawyer accepts an interest in the client's business or other nonmonetary property as payment of all or part of a fee.
Rule 1.8, Comment . Respondent in this case did not request or accept any interest in his client's business or other nonmonetary property as payment for his fee.
Rule 1.5, referenced in the comments to Rule 1.8, governs fee agreements and the reasonableness of fees. Paragraph (b) of that rule, which states that the basis or rate of the fee shall be communicated to the client, also contemplates modifications to the initial fee agreement, as it provides that "any changes in the basis or rate of the fee or expenses shall also be communicated to the client." The comments to Rule 1.5 caution against creating situations
where a client "might have to bargain for further assistance in the midst of a proceeding or transaction." Rule 1.5, Comment .
The comments to Rule 1.5 also reference Rule 1.8, noting that "a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client." Rule 1.5, Comment . Thus, as with the comments to Rule 1.8(a), the comments to Rule 1.5 envision that a fee arrangement falls within Rule 1.8(a) if the fee is paid in non-monetary property.
When we read the comments to Rule 1.8 in conjunction with the language and comments of Rule 1.5, we conclude the latter rule was intended to address the situation at hand. The Administrator could have charged Respondent with failing to properly explain and communicate his fees at the beginning of the case (including an explanation of what would happen if the case was unexpectedly prolonged), or with a failure to adequately communicate his request for additional fees. Rule 1.4, which addresses communication with clients, has also been utilized in a situation where an attorney sought to change a fee agreement. In re Williams, 2011PR00107, M.R 26430 (Jan. 17, 2014). See also In re Lutz, 06 SH 81, M.R. 22544 (Sept. 17, 2008).
Our conclusion is in accord with the Review Board's opinion in Woodcock, 2011 PR 00005. That opinion contains a lengthy discussion of the application of Rule 1.8 to a situation where an attorney changed an existing fee arrangement with a client to benefit himself, and threatened to withdraw from the case if the client did not accept the new agreement. The Review Board cited to an Indiana case supporting the application of Rule 1.8,1 but also referenced the comment to Rule 1.8 which states that the rule does not apply to ordinary fee agreements. Ultimately, the Review Board refused to find a violation of Rule 1.8 when no Illinois disciplinary case had done so, stating "[w]e do not consider it to be our role to expand the scope
of Rule 1.8(a) absent express authority from the Court, particularly when Rule 1.5 comprehensively addresses fee agreements." (Review Bd.at 12). The Review Board did find that the attorney engaged in overreaching, breach of fiduciary duty and a violation of Rule 1.4 (failure to explain).2 See also In re Bates, 05 CH 48, M.R. 22711 (Nov. 18, 2008) (Review Bd.at 21-22); In re Revak, 2012PR00165 (Aug. 14, 2015) (Hearing Bd.).3
After considering the foregoing case law; the Rule 1.8 comments which state that the rule does not apply to ordinary fee agreements; and the fact that fee situations are addressed by Rule 1.5, we find Respondent's request for additional fees was not a transaction within the purview of Rule 1.8(a), and therefore did not require the specific written disclosures and written consent set forth in that rule. As such, we find no violation of Rule 1.8(a). To hold otherwise could impose an undue and unanticipated burden on attorneys or law firms to obtain written consent from every client whenever there is an adjustment to standard/hourly rates.
We wish to further point out what we consider to be an insufficiency of evidence with respect to the fee agreement. The original fee agreement was between Respondent and Leon's girlfriend, Stephanie Graham, and Graham paid the fee requested by Respondent. We did not hear any testimony from Graham, nor was the fee agreement reduced to writing. Similarly, with respect to Respondent's request for an additional modest fee of $500, the testimony was conflicting as to what information Respondent provided to Buchanan. Considering the lack of clarity in the evidence, we do not believe the Administrator could prove misconduct with respect to the fee agreement under any theory.
2. Using means to embarrass, delay or burden (Rule 4.4(a))
The Administrator charged that, by leaving the previously described voice messages for Buchanan, Respondent used means in representing a client that had no substantial purpose other
than to embarrass, delay or burden a third person in violation of Rule 4.4(a). Respondent admitted making the statements in the voice messages.
Rule 4.4 has been applied where attorneys, in the course of representing a client, used language that was vulgar, offensive, discriminatory, or intimidating. See In re Gerstein, 99 SH 1, M.R. 18377 (Nov. 26, 2002) (derogatory and insulting language in correspondence to opposing counsel, insurance company employees, and a VA Medical Center director); In re Hoffman, 08 SH 65, M.R. 24030 (Sept. 22, 2010) (personal attacks on judge and statements to another attorney about his religion); In re Muller, 04 CH 139, M.R. 21027 (Sept. 21, 2006) (leaving hostile telephone messages for attorney); In re Novoselsky, 2011PR00043, M.R. 27419 (Sept. 21, 2015) (derogatory, sexist, vulgar remarks to two opposing counsel and calling a court deputy sheriff a "dumbbell" and threatening to have her job).
The fact that Respondent was requesting an additional fee for his work on Leon's case does not legitimize the language he used during the calls. In the Gerstein case, an attorney argued he did not violate Rule 4.4(a) by using vulgar and insulting language in letters to opposing counsel and others because the letters as a whole had a valid purpose. The Hearing Board noted that "[s]imply because the letters contain some legitimate purpose does not negate the application of Rule 4.4. It is the Respondent's use of offensive, vulgar, and derogatory language that constitutes a violation of Rule 4.4, because the use of that language has no substantial purpose other than to embarrass or burden the recipient." (Hearing Bd. at 22).
Respondent attempted to justify his vile language by arguing that Buchanan had been very disrespectful to him, an allegation that Buchanan denied. In Novoselsky, an attorney faced with a Rule 4.4(a) charge argued that he had been provoked or "baited" into personally abusing another attorney. That argument was rejected because attorneys have an obligation to uphold the
rules "even when faced with adversity," and any acrimony fostered by the litigation did not give the attorney free reign "to make whatever derogatory comments he felt necessary." (Hearing Bd. at 13).
We agree with the statements made in Gerstein and Novoselsky and find Respondent's use of derogatory, threatening and racially offensive language had no purpose other than to embarrass and burden Buchanan. Buchanan was, in fact, upset and worried by the messages, and felt disgraced. For the foregoing reasons, we find Respondent's statements violated Rule 4.4(a).
3. Dishonesty, fraud, deceit or misrepresentation (Rule 8.4(c))
In In re Edmonds, 2014 IL 117696,par. 62 the Court stated "there is essentially no way to define every act or form of conduct" that would violate Rule 8.4(a)(4) (the predecessor to Rule 8.4(c)) because "[e]ach case is unique and the circumstances surrounding the respondent's conduct must be taken into consideration." The Court further stated the rule "is broadly construed to include anything calculated to deceive, including the suppression of truth and the suggestion of falsity." Id. at par. 53.
The Administrator charged that Respondent engaged in dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) by engaging in "conduct including overreaching the attorney-client relationship by requesting additional legal fees over the flat fee agreement." We do not find any dishonesty associated with Respondent's request for additional fees. We were not persuaded that he engaged in any subterfuge, manufactured false reasons to extract more fees from Buchanan, or requested a fee that was unreasonable; rather he provided Buchanan with a basis for his request, that being his efforts and the length of the case. While Buchanan disputed the extent of work Respondent claimed to have devoted to Leon's case, he acknowledged the case went on for two years and that Respondent had performed work on behalf of his son.
During closing arguments, counsel for the Administrator urged us to find dishonesty on the basis of Respondent's statements in the voice messages he left for Buchanan, although those statements were not alleged to be dishonest in the Complaint. In particular, Respondent told Buchanan he would have Leon "writ over," "locked up," and the case would be delayed. We consider these exaggerated statements to be the result of Respondent's anger and frustration and, while highly inappropriate, we do not believe they rise to the level of dishonesty, especially since they were not charged as such.
II. Respondent is charged with using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person
Respondent, in the course of representing Florine Durr, engaged in misconduct by leaving an offensive voicemail message for a third person, which message had no substantial purpose other than to embarrass, delay or burden that person.
B. Admitted Facts and Evidence Considered
Respondent testified he has been friends with Florine Durr and her family for years, and he has had power of attorney for Durr and arranged documents relating to the power of attorney for about fifteen years. According to Respondent, Durr suffers from a serious mental illness, has severe arthritis and can hardly walk. (Tr. 147-48, 202).
For about two weeks in mid-2015, Durr was a patient of Lakefront Nursing and Rehabilitation Center. Aharon Adler is the administrator of that facility. Adler recalled speaking to Respondent in relation to Durr, and receiving a document from Respondent indicating Respondent held power of attorney for Durr. The one-page document, dated May 25, 2015 and entitled "In the Circuit Court of Cook County Illinois Power of Attorney," gives Respondent
power of attorney over Durr's financial and medical affairs. In the body of the document Respondent is referred to as "attorney Michael J. Moore" and "my attorney Michael J. Moore," and his name, with the designation "attorney," address and telephone number appear below the assignment of powers. Respondent, who acknowledged drafting the document, identified the five-digit number appearing after his name as his attorney number, and the address as being his home and business address. Although the signature "Florine Durr" appears at the bottom of the page, the witness signature line is blank which, according to Respondent, makes the document invalid in Illinois. (Tr. 93-95; 149-50, 211-12; Adm. Ex. 2).
Respondent denied that the power of attorney identifies him as Durr's attorney and he denied representing Durr. He noted he could sign his name as "attorney" on any document, and anyone can serve as a power of attorney. In his opinion, representation means representing someone in a case, which he has never done for Durr. He acknowledged Durr asked him to draft a new power of attorney for her. (Tr. 150-53; 201-03).
Adler testified that Durr left the Lakefront facility around the beginning of July 2015 because she wanted to move into the community with her "significant other." Although Durr left the facility against medical advice, Adler stated she was alert and oriented, knew what she was doing and how to get to where she needed to go, and was not a danger to herself or to the community. He noted that under Illinois Department of Public Health Rules and Regulations, residents have the right to make their own decisions. Adler acknowledged that Durr had a mental illness and walked with a cane. (Tr. 94-95, 103, 106-08).
After Adler left a message for Respondent advising him that Durr was leaving the facility, Respondent responded with a long voice message which Adler felt was racially
provocative and discriminatory. In the voice message, which was left on about July 5, 2015 and later provided to the ARDC, Respondent stated:
You know, I'm trying to be academic, intellectual, and - and - and community-minded and everything else with you. What you're supposed to do as a nursing home, you piece of Jew garbage. You put my girl out in the street and didn't give a fuck, and didn't let her come back, and know that she is mentally - are you mentally challenged, you piece of shit? Let me tell you something. There is a tort--with your stupid ass, you don't know what that is, called -- called violation of fiduciary capacity. And that's what you've done in this, with your stupid Jew ass. As a - Mother fuck you, how you fucked my girl. Okay, I'm going to sue you, a federal -- sue you, sue the fuck out of you. You should have knew better. Fiduciary capacity carries with it a responsibility of the particular concerns of the person involved. She's schizophrenic, hyper-paranoid schizophrenic, you piece of shit.
(Tr. 96-100; Adm. Ex. 3).
Adler testified he contacted the ARDC because he felt violated, insulted and diminished. He has always expected lawyers to be professional and would be embarrassed to deal with attorneys who are allowed to make comments without repercussions. (Tr. 100).
Respondent admitted leaving the foregoing voicemail message for Adler. He testified he was shocked and angry at Adler's actions, but denied trying to embarrass or delay him. Rather, he was trying to elicit a reasonable explanation for Adler's actions and wanted to inform Adler that if anything happened to Durr, Respondent would become Durr's lawyer and sue Adler. Respondent further stated he made derogatory statements because Adler put Durr's life in jeopardy after promising to take care of her. Respondent believes his anger was appropriate, but acknowledged it was not appropriate to call Adler a "piece of Jew garbage." He admitted his language was a little out of line, and he regrets his anger. (Tr. 147, 153-56, 203-06).
C. Analysis and Conclusions
As in Count I, Respondent is charged with using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person in violation of
Rule 4.4(a). As a threshold question in this count, we must determine if Respondent was representing Durr when he left the message for Adler. If he was not, Rule 4.4(a) does not govern his actions. Respondent admits acting as Durr's power of attorney, but denied having an attorney-client relationship with her.
In determining whether an attorney-client relationship exists, case law has generally stressed that "a client's reasonable belief is a significant factor, if not the controlling factor."In re Snowden, 04 CH 108, M.R. 21673 (Sept. 18, 2007) (Review Bd.at 8). In In re Cook, 2010PR00106, M.R. 26581 (May 16, 2014), the Hearing Board noted that no one fact is dispositive and while typically both sides must consent to the relationship, the consent may be express or implied. (Hearing Bd. at 18). Further, an attorney-client relationship is appropriately found where the client reasonably believes there is an attorney-client relationship, the attorney performs functions supporting that belief, and the attorney does not act to disavow representation. In re Gallo, 07 CH 110, M.R. 25259 (May 18, 2012) (Hearing Bd. at 19).
We did not hear any testimony from Durr in this matter, but we do have a legal document -- the power of attorney -- which Respondent prepared and which she signed. (Neither party disputed that the signature on the document was Durr's). Significantly, in the body of the document Respondent is referred to as "my attorney." While those words could conceivably refer to Respondent's role as attorney-in-fact (under the power of attorney) rather than his role as Durr's lawyer, Respondent further identified himself as an attorney at the bottom of the page and included his attorney identification number. Those combined circumstances indicate to us that he was representing Durr in his capacity as a licensed attorney. Further, we heard no evidence that he explained to Durr the difference between acting as her attorney in fact, as opposed to her attorney at law, or that he disavowed his role as attorney at law. We conclude
from the plain language of the legal document prepared by Respondent that he had an attorney-client relationship with Durr. Further, the representation did not end with Durr's signing of the power of attorney, as Respondent acknowledged he was preparing a new power of attorney for her, at her request.
If the language contained in the power of attorney was not enough to persuade us of the relationship between Respondent and Durr, we have Respondent's own words in the voice message he left for Adler in which he threatened to sue Adler for releasing Durr from the Lakefront facility. The only person he would be representing in making that threat, or in bringing a lawsuit, would be Durr.
Given the foregoing circumstances, we conclude that Respondent had an attorney-client relationship with Durr at the time he made his remarks to Adler. We also conclude that Respondent's purpose in using derogatory and profane language was to embarrass and burden Adler. While Respondent claimed his message had a legitimate purpose in seeking an explanation from Adler and informing him of a possible legal action, we reject that argument. As we explained in Count I, the fact Respondent may have had a valid reason for speaking to Adler does not explain or justify his particular choice of words, which were highly insulting and hostile. We conclude therefore that Respondent violated Rule 4.4(a).
III. Respondent is charged with failing to provide competent representation to a client and failing to act with reasonable diligence and promptness in representing a client
In representing Terrence Thomas in a criminal appeal, Respondent did not follow the proper procedures for obtaining a waiver of the appellate filing fee and did not comply with court orders, and therefore failed to provide competent representation and failed to act with diligence.
B. Admitted Facts and Evidence Considered
Respondent agreed to represent Terrence Thomas in a criminal matter in Wisconsin and received $1,000 in legal fees from Thomas' mother. Respondent is not licensed to practice law in Wisconsin but was granted pro hac vice admission to appear as co-counsel with a Wisconsin attorney, Andy Williams.On February 15, 2012, after a two-day trial at which Respondent and Williams represented Thomas, a jury found Thomas guilty of repeated sexual assault of a child. Thomas was sentenced to twelve years in prison, followed by ten years of extended supervision. (Ans. par. 15; Tr. 156-68; Adm. Ex. 4).
Appeal of Thomas's Conviction
Prior to May 14, 2012, Respondent and Thomas agreed that Respondent would represent Thomas in an appeal of Thomas's conviction, and Respondent would work with Williams on the appeal. Respondent and Williams agreed that Respondent would handle the substantive aspects of the appeal, and Williams would act as local counsel. (Ans. par. 16; Tr. 159).
On May 14, 2012, Respondent filed a notice of appeal on behalf of Thomas.The notice, which was not signed by Respondent or Thomas, lists Respondent as the only attorney for Thomas. On that same date, Respondent also filed an unsigned motion to appear pro hac vice on behalf of Thomas. (Ans. par. 17; Tr. 159-62; Adm. Ex. 6).
On May 30, 2012, the Wisconsin Court of Appeals issued an order noting that an unsigned notice of appeal is a fundamental defect that could lead to dismissal. Thomas was directed to file a signed notice of appeal in the circuit court within fourteen days or risk dismissal of the appeal. The order further stated that Respondent's motion to appear before the court pro hac vice was denied, with leave to refile, because the motion was not signed by resident counsel. Respondent received a copy of the May 30, 2012 order. (Ans. par. 18; Tr. 162; Adm. Ex. 7).
On June 13, 2012, a notice of appeal, signed by Respondent and Williams, was filed with the circuit court but it was not accompanied by the $195 filing fee, which is required unless the fee is waived. On June 22, 2012 the appellate court issued an order reminding Respondent and Williams they had not filed a signed motion for Respondent's pro hac vice appearance and that both the filing fee and statement on transcript were overdue. The court allowed five days to pay the fee or the appeal would be dismissed. (Ans. par. 19; Tr. 163-64; Adm. Exs. 8, 9).
Respondent testified that Thomas's mother had no money for the filing fee. Accordingly, on June 27, 2012 he filed a motion to waive the fee based on the indigence of Thomas's family.The motion did not contain an affidavit signed by the party claiming indigency, in this case Thomas, as required by Wisconsin law. On that same date, Respondent also filed an amended motion for pro hac vice representation of Thomas. (Ans. par. 20, 23; Tr. 164; Adm. Exs. 10, 11).
On July 6, 2012, the court of appeals granted Respondent's motion to appear pro hac vice, but denied his request to waive the filing feesbecause he did not use the proper forms to establish Thomas's indigent status. The court gave Thomas until July 23, 2012 to either pay the filing fee or file the appropriate forms. The order reflects that it was transmitted to Respondent along with a copy of a petition for waiver of fees and affidavit of indigency. Respondent received the July 6, 2012 order shortly thereafter. (Ans. par. 24; Adm. Ex. 12).
Dismissal of the Appeal
On August 2, 2012, the appellate court issued an order dismissing Thomas's appeal for failure to comply with the order of July 6, 2012. Like the prior orders, the August 2, 2012 order was mailed to Respondent at his Chicago address. (Tr. 165; Adm. Ex. 13).
On August 21, 2012, Respondent filed a motion for reconsideration of the dismissal, along with a petition to waive appellate filing fees and an affidavit of indigency. The affidavit of indigency was not signed by Thomas. (Ans. par. 27).
On August 30, 2012, the court of appeals ordered that Respondent's motion for reconsideration of the dismissal order be held in abeyance until September 12, 2012. The order further provided that if the court did not receive a completed petition to waive appellate filing fees and affidavit of indigency signed by Thomas on or before September 12, 2012, the motion for reconsideration would then be denied. Respondent received a copy of the August 30, 2012 order shortly thereafter. (Ans. par. 28).
As of September 28, 2012, Respondent had not provided the appellate filing fee to the court of appeals, nor had he filed a petition to waive appellate filing fees and affidavit of indigency signed by Thomas.On September 28, 2012, Respondent's motion for reconsideration was denied. The court cited to its prior order of August 30, 2012 which indicated that the affidavit of indigency must be signed by Thomas. (Ans. par. 29, 30; Adm. Ex. 14).
Respondent acknowledged that Thomas's appeal was ultimately dismissed because the filing fee was not paid and no valid indigent petition was filed. He testified he was given only a few days to obtain Thomas's signature, and neither he nor Williams knew where Thomas was imprisoned in Wisconsin. Further, because he is visually impaired and unable to drive, he left much of the footwork to Williams. When asked if he understood he was responsible for following the rules of procedure for Wisconsin courts, Respondent pointed out he was representing Thomas pro hac vice with the assistance of Williams. He knew there were documents Thomas would have to sign, but he left that task to Williams. (Tr. 164-73, 209).
Respondent denied willfully ignoring a court mandate, but acknowledged being bothered by the thought that he did not communicate with Williams often enough. When they did communicate, Williams always reassured him and told him not to worry. (Tr. 164, 209, 214-15).
Respondent testified that any delay that occurred in the case was because of his and Williams' concern that Thomas's mother did not have money for the filing fee. He noted his lack of access to transportation, and described the situation as difficult. He stated that the time table set by the court was not compatible with his or Williams' schedule and the court needed to exercise some degree of patience. Respondent believes recent case law states that a case should not be dismissed on the basis of a lack of indigent signature. (Tr. 207-10).
Writ of Habeas Corpus
On April 9, 2013, Thomas, through the Wisconsin public defender's office, filed a petition for writ of habeas corpus alleging that Respondent and Williams' ineffective assistance of counsel deprived him of his right to pursue a direct appeal of his conviction. The petition identified the institution where Thomas was imprisoned and asserted that an assistant state public defender had been in communication with Thomas both by telephone and mail since August 2012. (Ans. par. 31; Adm. Ex. 15).
On April 18, 2013 the court of appeals ordered the petition for writ of habeas corpus be held in abeyance and directed Respondent and Williams to file a response to the allegations within fifteen days. In an order of May 21, 2013, the court noted that Williams filed a response to the April 18, 2013 order but Respondent did not. Respondent testified he did not receive a copy of the May 21, 2013 order, even though his name and address appear on the notice. He stated he would never intentionally ignore a court order. Respondent acknowledged he received copies of all other motions and orders in the case. (Tr. 170, 175-77; Adm. Ex. 16, 17).
On July 15, 2013, with no objection by the State to the reinstatement of Thomas's right to appeal his conviction, the court of appeals entered an order granting the petition for habeas corpus and reinstating Thomas's right to appeal. Respondent received a copy of the July 15, 2013 order shortly thereafter.(Ans. par. 35; Adm. Ex. 18).
C. Analysis and Conclusions
Count III charges Respondent with failing to provide competent representation and failing to act with diligence in connection with Terrence Thomas's criminal appeal in Wisconsin. The Administrator charged a violation of Rules 20:1.1 and 20:1.3 of the Wisconsin Rules of Professional Conduct. Wis. Sup. Ct. R. 20:1.1 and 20:1.3. Those charges are proper under Illinois Rule 8.5(b), which addresses the situation of misconduct occurring in another state. Rule 8.5 states:
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise
We note that the Wisconsin disciplinary rules include an identical choice of law provision regarding conduct before a tribunal. Wis. Sup. Ct. R. 20:8.5. Further, the rules regarding neglect and incompetence are identical to the Illinois rules addressing those subjects, and therefore our analysis would be the same whichever rules were applied.
1. Failure to act with diligence and promptness (Wisc. Rule 20:1.3)
Wisconsin Rule of Professional Conduct 20:1.3 states that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." The Administrator charged Respondent with violating the rule by failing to file a completed petition for waiver of appellate fees and affidavit of indigency signed by Thomas and failing to respond to orders of the Wisconsin Court of Appeals. We find the charge was proved by clear and convincing evidence.
In May 2012 Respondent filed a notice of appeal and motion for pro hac vice admission, both of which were deficient for lack of proper signatures. After those defects were pointed out by the appellate court, Respondent filed a corrected notice of appeal but he did not submit the
required filing fee. He was first alerted to that omission by a July 22, 2012 court order. Thereafter, on June 27, 2012 he filed a motion to waive the docketing fee, but he did not file an affidavit of indigency signed by Thomas, as required by statute.On July 6, 2012, the court of appeals extended the time for Respondent to either pay the filing fee or file the appropriate form, to July 23, 2012. The court left no room for confusion in its order, even going so far as to include a copy of the proper form to be used.
Respondent neglected to file anything in response to the order and on August 2, 2012 the court of appeals dismissed Thomas's appeal. Respondent then filed a motion for reconsideration along with anaffidavit of indigency, but the affidavit was not signed by Thomas. The court of appeals held Respondent's motion in abeyance, giving him yet another chance to file the proper form by September 12, 2012. Respondent failed to submit a signed affidavit and ultimately his motion was denied. Seven months later Respondent failed to comply with an April 18, 2013 appellate court order directing him to respond to allegations of ineffective assistance of counsel. Respondent did not recall receiving a subsequent order that noted his failure to respond to the allegations, but he admitted receiving all other orders sent to his same address, which would have included the April order directing him to respond to the allegations.
Respondent has posited various reasons for his failure to submit an indigency affidavit with Thomas's signature. He stated several times that the court of appeals only gave him a few days to comply with its order. That argument fails because the evidence shows he was provided with the appropriate forms as early as July 6, 2012. Despite subsequent reminders and extensions for filing, including a specific direction on August 30, 2012 that the affidavit of indigency must be signed by Thomas, Respondent failed to submit a properly signed form before the case was finally dismissed on September 28, 2012.
Respondent also argued that he could not obtain Thomas's signature on the affidavit of indigency because he did not know where Thomas was imprisoned. It is beyond belief that he could not have located his client through inquiry to the proper authorities. Indeed, in a petition for writ of habeas corpus filed by the public defender several months after Thomas's appeal was denied, the public defender identified the name and address of the institution where Thomas was imprisoned and recited his communications with Thomas beginning in August 2012.
Finally, Respondent argued that Wisconsin counsel Andy Williams was responsible for obtaining Thomas's signature, as Respondent was limited in travel options due to his visual impairment.As an attorney whose name and contact information appeared on the notice of appeal, Respondent was responsible for knowing and obeying the court rules in effect, and complying with all court orders. "An attorney cannot avoid his professional obligations to a client by the simple device of delegating work to others." In re Weinberg, 119 Ill. 2d 309, 315, 518 N.E.2d 1037 (1988). While we understand and appreciate Respondent's limitations, those limitations would not have prevented him from communicating with Williams to ensure that the proper signature was secured in a timely manner. Williams' actions, or lack thereof, do not prevent our finding that Respondent engaged in misconduct.
2. Failure to provide competent representation (Wisc. Rule 20:1.1)
Wisconsin Rule of Professional Conduct 20:1.1 provides that "a lawyer shall provide competent representation to a client." The rule then states that "competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
As set forth in the foregoing section, Respondent demonstrated a clear lack of skill, thoroughness and preparation in failing to submit properly completed forms to the appellate
court and failing to comply with court orders. We therefore find that he violated Wisconsin Rule 20:1.1 as charged.
IV. Respondent is charged with failing to respond to demands for information from a disciplinary authority and engaging in conduct prejudicial to the administration of justice
The charges of Count IV were not proved by clear and convincing evidence. In response to a request for document production, Respondent advised the Administrator he had no documents to produce.
B. Admitted Facts and Evidence Considered
On December 23, 2013, the Administrator received a request for investigation of Respondent from the Wisconsin Court of Appeals relating to Respondent's representation of Terrence Thomas. On June 25, 2014, the Administrator received a request for investigation from Leon Buchanan, Jr. regarding Respondent's representation of Buchanan's son. (Ans. par. 37, 38).
On June 8, 2015 the Clerk of the Court issued a subpoena duces tecum, at the request of the Administrator, directing Respondent to appear at the offices of the ARDC on June 30, 2015 and to produce client files relating to his representation of Buchanan and Thomas at that time. The proof of service attached to the subpoena indicates Respondent was personally served with the subpoena on June 11, 2015. (Adm. Ex. 22).
On June 30, 2015, Respondent appeared for his sworn statement and gave testimony, but he did not produce any documents relating to his representation of Thomas or Buchanan. At that time, he agreed to comply with the document request by July 14, 2015. (Ans. par. 40).
During Respondent's testimony at hearing, he initially denied receiving a subpoena from the Administrator, but when confronted with answers in his sworn statement, he admitted
receiving notice of the subpoena. He testified that "after a while" he asked counsel for the Administrator to communicate and make any requests to him by telephone, and counsel agreed to do so. (Tr. 179-80, 210; Adm. Ex. 22).
On July 9, 2015 the Administrator sent Respondent a letter reminding him that he had agreed to search his files for the requested documents and produce the documents by July 14, 2015.The letter further directed Respondent to provide a written explanation if he did not have files, and to detail his efforts to locate any responsive documents. The original subpoena did not request any written response from Respondent. (Adm. Ex. 22, 23).
Respondent admitted receiving the July 9, 2015 letter from the Administrator.He also admitted, in his answer to the Complaint, that on July 21, 2015, he telephoned counsel for the Administrator and stated he had been busy with court appearances, but would comply with the document production request shortly. At hearing Respondent testified he responded to the letter by telephone and advised counsel for the Administrator that he did not have any documents. He recalled also advising counsel that he was not in the habit of keeping documents that were more than two years old. He testified that he later provided a written response to the ARDC. (Ans. par. 42; Tr. 183-85; Adm. Ex. 23).
C. Analysis and Conclusions
1. Failure to respond to demand for information (Rule 8.1(b))
Respondent is charged with knowingly failing to respond to lawful demands for information from a disciplinary authority by failing to comply with the document production requests in the Administrator's June 8, 2015 subpoena.
We find the Administrator did not prove that Respondent knowingly failed to respond to lawful demands for information in violation of Rule 8.1(b). Respondent initially indicated he would conduct a search of his files, but at some point he advised the Administrator he does not
keep client files for more than two years and had nothing to produce. The Administrator did not challenge his testimony on that point. As for Respondent's failure to provide a response in writing, we accept his explanation that he requested that communication be conducted by telephone due to his visual impairment. He understood that the Administrator was in agreement with the request, and as such, he acted accordingly in verbally advising the Administrator of his response.
2. Prejudice to the administration of justice (Rule 8.4(d))
An attorney's conduct is prejudicial to the administration of justice if it has an impact on the representation of a client or the outcome of a case, undermines the judicial process or jeopardizes a client's interests. In re Storment, 203 Ill. 2d 378, 399, 786 N.E.2d 963; In re Thomas, 2010 IL113035, pars. 91, 123.
Our concern in this count is not with the representation of a client or a client's interests, but with the disciplinary process and whether it was undermined by Respondent's failure to produce documents pursuant to a subpoena. Since Respondent had no documents to produce and informed the Administrator of that fact, we see no actual prejudice to the administration of justice or to the Administrator's investigation. Therefore, we do not find that Respondent violated Rule 8.4(d).
Mitigation and Aggravation
When Respondent gave a sworn statement on June 30, 2015, he stated he regretted the statements made to Leon Buchanan, Jr. as set forth in Count I, and indicated he may have learned something from that experience. Approximately one week after his sworn statement, he left the voicemail message for Adler set forth in Count II. (Tr. 143-46).
Respondent acknowledged he was contacted by a reporter after the disciplinary complaint was filed on August 26, 2015. In an article published on September 5, 2015, the reporter quoted
Respondent as saying "I'm supposed to allow [Buchanan] to disrespect me with impunity? Bull---!" When Respondent was questioned about making the quoted statement, he did not recall the conversation, but testified the statement was true. (Tr. 186; Adm. Ex. 24).
Respondent testified at hearing that he regrets every moment of anger he has had in his life. (Tr. 143, 147).
The Administrator reported that Respondent has not been previously disciplined by the Illinois Supreme Court or by any Board of the Commission.
Respondent left derogatory voice messages in connection with two client matters and failed to represent another client diligently and competently. The Hearing Board recommends that Respondent be suspended for sixty days.
Having concluded that Respondent engaged in misconduct with respect to three client matters, we must determine the appropriate discipline. In so doing, we consider that the purpose of these proceedings is not to punish, but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300 (1993). Attorney discipline also has a deterrent value in that it impresses upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906, 912 (1994).
In arriving at the appropriate discipline, we consider those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill. 2d 380, 583 N.E.2d 526, 535
(1991). In mitigation, Respondent has not been previously disciplined during his thirty years of practice. See In re Clayter, 78 Ill. 2d 276, 399 N.E.2d 1318 (1980).
In aggravation, we consider any harm or risk of harm that was caused by Respondent's conduct. In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care"). In the Terrance Thomas matter, Respondent's lack of compliance with court procedure and orders caused Thomas's criminal appeal to be dismissed. The appeal was reinstated only after the public defender became involved and argued that Thomas had received ineffective counsel.
We also consider, in aggravation, the fact that when Respondent left the offensive voice message for Adler (Count II), he was already under investigation for leaving offensive messages for Buchanan (Count I). In fact, the message to Adler occurred approximately one week after Respondent gave a sworn statement in which he indicated he regretted the language he used toward Buchanan and had learned something from his experience.
Turning now to the appropriate discipline, we have determined that Respondent left insulting and offensive voice messages in two client matters and failed to properly pursue a criminal appeal for another client. The Administrator urged us to recommend a suspension of six months and until further order of the court, but that suggestion was based on the assumption we would find all of the charged misconduct proved, which we did not do.
In cases involving attorneys who used offensive or intimidating language in violation of Rule 4.4, sanctions have ranged from reprimands to modest suspensions. See In re Gerstein, 99 SH 1, M.R. 18377 (Nov. 26, 2002) (attorney who had been previously censured for making insulting remarks in a letter was suspended for thirty days for using derogatory and insulting language in correspondence to opposing counsel and others); In re Johnson, 04 CH 41, M.R.
20177 (May 20, 2005) (attorney censured for sending harassing letter and failing to return unearned fee; in mitigation, he expressed remorse); In re Muller, 04 CH 139, M.R. 21027 (censure for attorney who left hostile telephone messages and engaged in inappropriate questioning of a witness; in mitigation he was cooperative and expressed remorse). The Administrator cited cases in which longer suspensions were imposed, but those cases involved additional misconduct or more serious aggravating circumstances. See In re Hoffman, 08 SH 65, M.R. 24030 (Sept. 22, 2010) (suspension of six months until further order of court for attorney who made improper statements to another attorney and judicial officers, made false statements about the judicial officers, did not recognize the impropriety of his conduct, demonstrated disrespect toward the hearing board, and gave false testimony); In re Novoselsky, 2011PR00043, M.R. 27419 (Sept. 21, 2015) (attorney who made harassing statements, neglected matters, misrepresented the status of cases and failed to return unearned fees was suspended for six months and ordered to complete professionalism seminar.)
In fashioning our recommendation we also consider Respondent's neglect and incompetence in handling a criminal appeal. Sanctions in those cases have also ranged from censures to mild suspensions. In In re Hall, 95 Ill. 2d 371, 447 N.E.2d 805 (1983) the attorney was suspended for three months for neglecting a criminal appeal and lying under oath. In that case the client lost his right to appeal. In In re Jones, 00 CH 40, M.R. 19160 (Jan. 20, 2004), the attorney's neglect of one criminal appeal warranted a suspension of thirty days and completion of an office management program. In In re Ring, 141 Ill. 2d 128, 565 N.E.2d 983 (1990) the attorney was suspended for six months for failure to prosecute a criminal appeal and failure to inform his client the appeal had been dismissed. There were also elements of dishonesty in that case, and the client lost his right to an appeal. In In re Weinberg, 119 Ill. 2d 309, 518 N.E.2d
1037 (1988), a censure was warranted where the attorney in a criminal case delegated the task of writing the appellate brief to an associate who failed to complete the task. The appeal was dismissed but later reinstated by a different attorney.
Based on the foregoing cases, the combination of misconduct that occurred, and the mitigating and aggravating circumstances, we conclude that a suspension of sixty days is warranted. Although the Administrator urged us to recommend that the suspension continue until further order of court, we decline to do so. That condition is appropriate where an attorney has engaged in severe misconduct (In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909 (1997)) or where there is a lack of any evidence that he is willing or able to meet professional standards of conduct in the future. In re Houdek, 113 Ill. 2d 323, 497 N.E.2d 1169 (1986). While Respondent's conduct was unacceptable, he did not engage in dishonesty or misrepresentation. Further, he has practiced for thirty years without prior incident and stated at hearing that he regrets his anger. Although the timing of his message to Adler is of some concern to us (as it occurred on the heels of his sworn statement in the Buchanan matter), that circumstance is not enough for us to recommend a condition which the Court has recognized as being the most severe sanction after disbarment. See In re Timpone, 208 Ill. 2d 371, 386, 804 N.E.2d 560 (2004). Under the circumstances, we believe a straight suspension will fulfill the purposes of the disciplinary process.
Accordingly, we recommend that Respondent Michael J. Moore be suspended from the practice of law for a period of sixty (60) days.
Henry T. Kelly
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 onSeptember 9, 2016.
Kenneth G. Jablonski, Clerk of the
1 See In re Hefron, 771 N.E.2d 1157 (Ind. 2002). See also In re Corcella, 994 N.E.2d 1127 (Ind. 2013). The Review Board also cites to an ABA ethics opinion which discusses modifications to fee agreements and recognizes the applicability of Rule 1.8 in limited situations where an attorney acquires an interest in a client's business or property. The opinion, however, primarily focuses on Rules 1.5 and 1.4 as governing changes in fee agreements. ABA Formal Opinion 11-458 (Aug. 4, 2011).
2 On exceptions filed by the attorney, the Supreme Court imposed a shorter suspension than that recommended by the Review Board.
3 The Hearing Board in Revak relied on the Woodcock case to find that the conflict of interest rules were not designed to apply to ordinary fee arrangements. The hearing panel did, however, find that the attorney's fee was unreasonable under Rule 1.5. (Hearing Bd. at 21). That finding was reversed by the Review Board which recommended a dismissal of all charges. (Review Bd., April 19, 2016). The case is currently pending before the Supreme Court on the Administrator's exceptions to the dismissal of the 1.5 charge.