Filed February 9, 2017

In re William James Meacham
Attorney-Respondent

Commission No. 2016PR00018

Synopsis of Hearing Board Report and Recommendation
(February 2017)

This matter arises out of the Administrator's six-count Complaint, filed on March 4, 2016. Count I charged that Respondent failed to hold client or third part settlement funds separate from his own funds by using the funds for his own purposes without authority; failed to promptly notify a lien holder that he had received the settlement funds; and engaged in dishonesty. Count II charged that Respondent testified falsely to a tribunal. Count III charged that Respondent made false statements and created false documents in connection with a disciplinary matter. Count IV charged that Respondent failed to prepare and maintain records for his trust account. Counts V and VI charged that Respondent neglected the legal matters of two clients.

The Hearing Board found that the Administrator proved all of the charges of misconduct. Based upon the egregious nature of the misconduct and the substantial aggravation, the Hearing Board recommended that Respondent be disbarred.

BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

WILLIAM JAMES MEACHAM,

Attorney-Respondent,

No. 6201604.

Commission No. 2016PR00018

REPORT AND RECOMMENDATION OF THE HEARING BOARD

SUMMARY OF THE REPORT

We found that the Administrator proved the Respondent engaged in all of the misconduct charged in Counts I through VI of the Complaint. Specifically, Respondent failed to hold client or third part settlement funds separate from his own funds by using the funds for his own purposes without authority; failed to promptly notify a lien holder that he had received the settlement funds; engaged in dishonesty; testified falsely to a tribunal; made false statements and created false documents in connection with a disciplinary matter; failed to prepare and maintain records for his trust account; and neglected the legal matters of two clients. The Hearing Panel recommends that Respondent be disbarred.

INTRODUCTION

The hearing in this matter was held on September 30, 2016, at the Springfield offices of the Attorney Registration and Disciplinary Commission, before a Panel of the Hearing Board consisting of Sonni C. William, Chair, Robert M. Owen, and Ludger Schilling. Gary S. Rapaport appeared on behalf of the Administrator. The Respondent appeared pro se.

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PLEADINGS

On March 4, 2016, the Administrator filed a Six-Count Complaint against the Respondent. Count I of the Complaint alleged that Respondent failed to hold $32,083.67 in settlement funds, which was the property of a client or third party lien holder, separate from his own funds, by removing the settlement funds from his trust account without authority and using those funds for his own purposes; Respondent failed to promptly notify his client or third party lien holder of his receipt of the settlement funds; and engaged in dishonesty. Count II alleged that Respondent knowingly testified falsely under oath in a discovery deposition. Count III alleged that Respondent, in connection with a disciplinary matter, knowingly made a false statement of material fact in a sworn statement to the ARDC, knowingly made false statements to his client, and knowingly created and submitted false documents to the Administrator. Count IV alleged that Respondent failed to prepare and maintain records of his client trust account.

Count V alleged that Respondent failed to act diligently in representing a client in a personal injury matter, failed to keep the client informed, and engaged in conduct prejudicial to the administration of justice. Count VI alleged that Respondent failed to act diligently in representing another client in a personal injury matter.

Respondent filed an Answer to Complaint on April 12, 2016. On motion of the Administrator, the Respondent's Answer was stricken, but he was allowed to file another Answer. On June 7, 2016, Respondent filed another Answer to Complaint. On July 14, 2016, the Administrator's Motion to Strike Respondent's answers to Counts IV, V, and VI, and to paragraphs 27-30 of Count II was granted, and Counts IV, V, and VI, and paragraphs 27-30 of Count II were admitted.

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ALLEGED MISCONDUCT

The Complaint alleged that Respondent: 1) failed to hold property of a client or third person that is in a lawyer's possession separate from the lawyer's own property (Count I); 2) failed to promptly notify the client or a third person upon receiving funds in which the client or third person has an interest (Count I); 3) engaged in dishonesty, fraud, deceit, or misrepresentation (Counts I, II, III); 4) knowingly made a false statement of fact or law to a tribunal (Count II); 5) in connection with a disciplinary matter, knowingly made a false statement of material fact (Count III); 6) failed to prepare and maintain records of a client trust account (Count IV); 7) failed to act with reasonable diligence or promptness in representing a client (Counts V, VI); 8) failed to keep a client reasonably informed about the status of a matter (Count V); and 9) engaged in conduct that is prejudicial to the administration of justice (Count V), in violation of Rules 1.3, 1.4(a)(3), 1.15(a), 1.15(d), 3.3(a), 8.1(a), 8.4(c) and 8.4(d) of the Illinois Rules of Professional Conduct (2010).

EVIDENCE

The Administrator presented the testimony of Larry Calvo, Paul Marks, Mark Breeden, and James Burton. The Administrator's Exhibits 1 through 40 were received into evidence. (Tr. 7, 97). The Respondent testified on his own behalf. Respondent's Exhibits 2, 4-7, 9, 11, 12, 15, 18, and 19 were received into evidence. (Tr. 172).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. See Supreme Court Rule 753(c)(6); In re Edmonds, 2014 IL 117696, par. 35. This standard of proof requires a high level of certainty, which is greater than a preponderance of the evidence (i.e., more probably true than not true) but

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not as great as proof beyond a reasonable doubt. See In re D.T., 212 Ill. 2d 347, 362, 818 N.E.2d 1214 (2004); Bangaly v. Baggiani, 2014 IL App (1st) 123760, par. 206. In determining whether the burden of proof has been satisfied, the Hearing Panel is to assess the credibility and believability of the witnesses, weigh conflicting testimony, draw reasonable inferences from the evidence, and make factual findings based upon all of the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126 (1999); In re Timpone, 208 Ill. 2d 371, 380, 804 N.E.2d 560 (2004). A Hearing Panel is not required to be "nai've or impractical in appraising an attorney's conduct," or "be blind to the intent apparent from the evidence." In re Discipio, 163 Ill. 2d 515, 524, 645 N.E.2d 906 (1994); In re Holz, 125 Ill. 2d 546, 555, 533 N.E.2d 818 (1988); In re Morask, 2010PR00136, M.R. 26061 (Sept. 25, 2013) (Review Bd. at 14).

An admission in a pleading is a formal judicial admission that is binding on the party making it and dispenses with the need for any proof of that fact. Thus, when a respondent in a disciplinary matter admits in his or her answer some or all of the allegations in the Complaint, or the allegations in the Complaint are deemed admitted, it is unnecessary for the Administrator to present evidence to prove the allegations so admitted or deemed admitted. See In re Duebbert, 2013PR00127, M.R. 27475 (Sept. 12, 2015) (Hearing Bd. at 5); In re Elder, 2014PR00019, M.R. 273346086 (May 14, 2015) (Hearing Bd. at 3). In re Simard, 2015PR0002, M.R. 27653 (Nov. 17, 2015) (Hearing Bd. at 2).

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I.    In Count I, Respondent is charged with failing to hold client or third part settlement funds separate from his own funds by using the funds for his own purposes without authority; failing to promptly notify a lien holder that he had received the settlement funds; and engaged in dishonesty, in violation of in violation of Rules 1.3, 1.4(a)(3), 1.15(a), 1.15(d), 3.3(a), 8.1(a), 8.4(c) and 8.4(d) of the Illinois Rules of Professional Conduct (2010)..

A. Summary of Count I

We find that the Administrator proved Respondent engaged in all of the misconduct charged in Count I. Specifically, Respondent failed to hold $32,083.67 of settlement funds separate from his own property by removing the funds from a trust and using the funds for his own purposes without authority; failing to promptly notify a client or a third party upon receiving funds in which the client or the third party has an interest; and engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation

B. Admitted Facts and Evidence Considered

Answer to Complaint

The following facts were admitted by Respondent in his Answer to the Complaint.

In April 2005, Mark Breeden was injured in a traffic accident. While Breeden was stopped at a red light, a truck of Coyle Mechanical Supply, being operated by Robert Favier, struck a car and propelled it onto Breeden's truck. As a result, Breeden suffered injuries that required surgeries. Both Coyle and Favier were insured by Farmers' Insurance Company. Respondent agreed to represent Breeden in a claim against Coyle and Favier on a contingent fee basis, one-third of the recovery. On March 6, 2006, Respondent filed a lawsuit on behalf of Breeden. (Breeden v. Favier and Coyle, Madison County, No. 06 L 208).

In December 2007, Breeden entered into a loan agreement with a loan company, Law Street Capital LLC, d/b/a LawCash,(hereafter LawCash) and obtained a loan against the proceeds of the above lawsuit.

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In July 2008, Breeden agreed to accept $160,000 from Farmers Insurance in settlement of the above lawsuit. On August 12, 2008, Farmers issued check in the amount of $160,000 made payable to Breeden and Respondent. Both of them endorsed the check. After deducting his fee ($53,333.33) and costs ($1,410.04), Respondent deposited the remaining amount of $105,256.63 into his trust account.

Between August 19, 2008 and May 15, 2009, Respondent made the following disbursements from Breeden's settlement funds at Breeden's direction:

DATE

CHECK NUMBER

AMOUNT

 

PAYEE

8/19/08

361

$44,203.01

 

Mark Breeden

8/19/08

393

$1,000.00

 

Mark Breeden

9/05/08

395

$1,278.00

 

Reilly Law Office

9/26/08

396

$15,000.00

 

Mark Breeden

2/09/09

(Unnumbered)

$2,645.00

 

King Spinal

3/26/09

454

$4,904.28

 

Farmers Ins.

5/01/09

572

$111.00

 

Credit Control

5/15/09

573

$4,000.00

 

Mary Breeden

Total Disbursements:

$73,141.29

 

Respondent agreed to hold the remaining amount of the settlement funds, $32,115.34, in trust for the purpose of paying claims that other third parties might have on the settlement funds. Neither Breeden nor Law Cash authorized Respondent to use any portion of the $32,115.34 for his personal or business purposes.

Respondent

The Respondent testified that he represented David Breeden in a personal injury case, and acknowledged that, while the case was pending, Breeden obtained a litigation loan from LawCash (Law Street Capital LLC) on December 26, 2007. Both Breeden and Respondent signed the loan document. (Adm. Ex. 2). Breeden's lawsuit was settled, and in August 2008

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Respondent received a check from Farmers Insurance in the amount of $160,000 made payable to Breeden and Respondent. (Adm. Ex. 3 at 2). Respondent made initial distributions of $54,737.37 (Adm. Ex. 4; Resp. Ex. 18), and the remaining amount from the settlement, $105,256.63, was deposited into Respondent's trust account. (Adm. Ex. 3 at 1).

Respondent made additional disbursements totaling $73,141.29 out of the $105,256.63, and then held in his trust account $32,115.34 for the purpose of paying Breeden's obligation to LawCash for the litigation loan. (Ans. at pars. 10, 11; Tr. 156-58). Respondent claimed that he wrote a letter informing LawCash of the settlement in Breeden's case, and that LawCash never responded. He added that he "should have" a copy of his letter. (Tr. 145-46)

An entity named Cambridge Management Group LLC was involved in an arbitration proceeding against Breeden and Respondent. The Final Award of Arbitrator in that matter dismissed the claims of Cambridge Management Group with prejudice on March 3, 2011. A letter dated March 7, 2011, informed Respondent and Breeden of the arbitrator's decision in their favor. (Tr. 108-10; Resp. Exs. 5, 6). Respondent said he believes LawCash is a company of Cambridge Management Group. Consequently, based upon the foregoing arbitrator's decision, neither LawCash nor Cambridge Management Group had a lien on the remaining amount of Breeden's settlement funds, and, thus, the $32,115.34 in Respondent's trust account belonged to Breeden. (Tr. 109-12, 117, 121, 137).

Respondent explained that he believed LawCash and Cambridge Management Group were the same entity, with the same lien, because if they were not, "why would [LawCash] not have joined in the arbitration" and because he has never heard of anyone receiving more than one litigation loan at a time during his 25 years in practice. (Tr. 110-11, 142). Respondent further testified that, following the arbitrator's decision, "Breeden wanted his money in cash."

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Respondent said, because he believed the $32,115.34 was Breeden's money, began paying it to Breeden in cash. (Tr. 111-12). However, Respondent had no receipts for those disbursements at the time they were made. (Tr. 117, 135-36).

In August 2013, LawCash filed a lawsuit against Breeden and Respondent for the nonpayment of the Breeden's litigation loan, based upon the agreement of December 26, 2007. (Tr. 112; Adm. Ex. 13). Both Breeden and Respondent represented themselves in that case. Respondent filed a motion to dismiss on his own behalf. Respondent acknowledged that he did not raise the above arbitrator's decision (Resp. Ex. 6) as a defense or an issue. Ultimately, LawCash voluntarily dismissed the case in April 2015. (Tr. 112-13, 121, 159; Adm. Ex. 13 at 5).

At some point, Respondent realized that "since I had paid [Breeden] in cash . . . I'm just kind of hanging here at the end, and I thought, well, you know Mark [could] just give me a receipt because ARDC is going to want a receipt. That seemed simple enough to me." Respondent then prepared receipts and asked Breeden to sign them. (Tr. 114, 117, 136).

Respondent acknowledged that all of the 19 receipts signed by Breeden were signed on the same day, which was very soon before Respondent sent them to the ARDC. (Adm. Ex. 22). However, Respondent claimed that he actually paid Breeden the amounts of money referred to on the receipts, even though the receipts were signed years after the dates on them. (Tr. 142-44, 150). He also acknowledged that "I screwed up by not keeping the records better on Breeden." (Tr. 138).

Mark Breeden

Mr. Breeden testified that he is disabled. He previously worked labor at American Steel Foundry. (Tr. 63). In 2005, Breeden was injured in a traffic collision, and Respondent represented him in a personal injury lawsuit arising out of that incident. (Adm. Ex. 1). While that lawsuit was pending, Breeden obtained a litigation loan from Law Street Capital (LawCash).

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Both Breeden and Respondent signed the loan document on December 26, 2007. (Adm. Ex. 2). A settlement in the amount of $160,000 was reached in his personal injury suit, and a check in that amount was received in August 2008. (Adm. Ex. 3). Breeden said that, after initial disbursements, Respondent was holding $32,115.34 from the settlement funds in his trust account as of May 15, 2009, for the purpose of paying back the litigation loan and Medicare. Breeden said he did not give Respondent permission to disburse the foregoing funds for any other purpose. Specifically, Breeden said he did not give permission for Respondent to take any of that money for Respondent's personal or business purposes. (Tr. 64-66).

Subsequently, Breeden received a letter from LawCash informing him that he owed a large amount of money on his litigation loan. He said he "couldn't get ahold of" Respondent, and contacted another attorney, George Riplinger. Riplinger sent a letter to Respondent, and received "something back," but Breeden did not know what it was. (Tr. 66-67).

In 2013, LawCash filed a lawsuit against Breeden and Respondent. On one occasion while the lawsuit was pending, Breeden had a conversation with Respondent on the courthouse steps. During that conversation, Respondent said "he had this money," "took the money out in small increments and had put it back," and "after the lawsuit time ran out, he would give me my money." However, Respondent never gave Breeden any of the $32,115.34. (Tr. 67-68).

Breeden acknowledged that he signed 19 receipts stating that Respondent disbursed funds in various amounts to him from July 15, 2008, to October, 29 2013. (Adm. Ex. 22). He said the receipts were prepared by Respondent and he signed all of them on the same day at Respondent's office in August 2015. Breeden claimed that the receipts were false and that he did not receive the funds as set out in the receipts. Breeden explained that he signed the receipts because he was "getting tired" of receiving telephone calls, "three and four times a day," from Respondent

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trying to get Breeden to sign the receipts. Also Respondent told Breeden that after the LawCash's lawsuit was "dropped" in April 2015, it could be re-filed within one year, but that after the "year was up, he'd give me my money." However, Breeden did not receive any of the money from Respondent. (Tr. 68-70, 92-93).

Breeden preserved numerous voice messages he received from Respondent in August

2015. He allowed ARDC investigator James Burton to copy those voice messages in December 2015. An audio of the voice messages, R-1 through R-8 and R-10 through R-22, were played, and Breeden verified that they were accurate. (Tr. 77-92).

James Burton

Mr. Burton, Senior Investigator for the ARDC, testified that he went to the home of Mark Breeden in December 2015 and made audio recordings from voice messages on Breeden's phone. The recordings were copied to a CD (Adm. Ex. 38), which was played at the hearing. Additionally, a transcript of the recordings (Adm. Ex. 21) was also prepared. (Tr. 98-100).

Burton also testified that he reviewed records of Respondent's trust account, which were received by subpoena from the Bank of Edwardsville. Based upon information in those records, he prepared a summary of checks Respondent wrote to himself. Burton identified Administrator's Exhibit 40 as the summary he prepared. The summary lists 16 checks, dated from November 2008 to January 2011, and the memo section on each check contained the words "earned retainer." However, none of the checks identified the name of a client to whom the "earned retainer" applied. Burton explained that where there is an earned retainer, there should also be a corresponding deposit for the same amount into the trust. However, Burton was unable to find any deposits into Respondent's trust account that corresponded with the withdrawals. (Tr. 101-104). The 16 checks listed in Burton's summary totaled $19,250.00. (Adm. Ex. 40).

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Paul Marks

Mr. Marks testified that he is an attorney and works at the law firm of Sivia Business and Legal Services in Edwardsville. He is primarily involved in business litigation. (Tr. 43-44, 49). In about June 2014, Marks began representing the plaintiff in the Madison County lawsuit entitled Funding Holding, Inc. D/B/A LawCash v. Mark Breeden and William Meacham, No.2013 MR 225. Both Breeden and Respondent represented themselves in that case. Marks said he was not aware of any connection between Funding Holding, Inc. or LawCash and the entity entitled Cambridge Management Group. (Tr. 44-45, 49; Adm. Ex. 13).

Marks identified two Notice of Lien letters addressed to Respondent from LawCash stating that LawCash had provided Breeden with pre-litigation funding (in regard to the case of Breeden v. Favier and Coyle, Madison County, No. 06 L 208). In both letters, one dated July 13, 2009, and the other dated October 6, 2009, Respondent was asked to provide a status of the foregoing case. (Adm. Exs. 8, 9). Respondent did not respond to either letter. However, sometime in "2010 or so" LawCash learned that Breeden had settled the lawsuit in 06 L 208 for $160,000. (Adm. Ex. 10; Tr. 45-46).

Marks testified about discovery requests and court orders for Respondent to produce documents in the LawCash law suit against Respondent and Breeden. After Respondent failed to produce complete records, the judge issued a judicial subpoena to the Bank of Edwardsville and obtained the records for Respondent's trust account. The judge reviewed the records in camera and redacted information that did not pertain to Breeden. The redacted trust account records were turned over to Marks. Based upon the bank records, Marks concluded that $39,303.62 from the $160,000 settlement in Breeden's personal injury case was unaccounted for. (Tr. 47-54; Adm. Ex. 13 at 29, 34, 44, 54, 66, 79; Adm. Ex. 14 at 81).

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LawCash did not collect any money from Respondent or Breeden. Ultimately, LawCash voluntarily dismissed the lawsuit against Respondent and Breeden because no money was available to recover. (Tr. 56; Adm. 13 at 269).

Marks said that, while the above lawsuit was pending, Respondent never mentioned or raised an issue regarding an arbitrator's decision that might bar or limit LawCash's recovery. (Tr. 52). He also pointed out that if Respondent had disbursed funds to Breeden out of the funds he was supposed to be holding for LawCash, Respondent would have violated the agreement that he and Breeden had signed with LawCash. (Tr. 56; Adm. Ex. 2).

Administrator's Exhibit 2

This exhibit contains a copy of a loan document showing that on December 26, 2007, while his personal injury case was pending, Breeden obtained a litigation loan from Law Street Capital d/b/a LawCash (hereafter LawCash) in the amount of $30,270.90 plus fees of $3,225.00. The loan document was signed by Breeden on December 26, 2007. On the same date, Respondent also signed the loan document, acknowledging that the lender had a security interest and lien on the proceeds of Breeden's personal injury case, and stating that Respondent would make no distribution until he contacted the lender and the lender's lien was satisfied. (Adm. Ex. 2).

Administrator's Exhibit 5

This Exhibit contains copies of monthly statements for Respondent's Trust Account. The statements show the following balances:

DATE OF STATEMENT

ENDING BALANCE

March 31, 2009

$43,883.80

(Adm. Ex. 5 at 8)

April 30, 2009

$34,432.26

(Adm. Ex. 5 at 9)

May 31, 2009

$29,927.26

(Adm. Ex. 5 at 10)

June 30, 2009

$40,251.26

(Adm. Ex. 5 at 11)

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DATE OF STATEMENT

ENDING BALANCE

August 2, 2009

$28,241.26

(Adm. Ex. 5 at 12)

August 31, 2009

$28,241.26

(Adm. Ex. 5 at 13)

September 30, 2009

$34,325.14

(Adm. Ex. 5 at 14)

November 1, 2009

$24,561.61

(Adm. Ex. 5 at 16)

November 30, 2009

$24,486.61

(Adm. Ex. 5 at 17)

December 31, 2009

$22,320.61

(Adm. Ex. 5 at 18)

January 31, 2010

$21,396.61

(Adm. Ex. 5 at 19)

February 28, 2010

$20,896.61

(Adm. Ex. 5 at 20)

March 31, 2010

$19,406.89

(Adm. Ex. 5 at 21)

May 2, 2010

$18,536.48

(Adm. Ex. 5 at 22)

May 31, 2010

$16,999.22

(Adm. Ex. 5 at 23)

June 30, 2010

$16,999.22

(Adm. Ex. 5 at 24)

August 1, 2010

$16,999.22

(Adm. Ex. 5 at 25)

August 31, 2010

$16,999.22

(Adm. Ex. 5 at 26)

September 30, 2010

$16,999.22

(Adm. Ex. 5 at 27)

October 31, 2010

$16,999.22

(Adm. Ex. 5 at 28)

November 30, 2010

$14,084.62

(Adm. Ex. 5 at 29)

December 31, 2010

$11,584.62

(Adm. Ex. 5 at 30)

January 31, 2011

$5,865.62

(Adm. Ex. 5 at 31)

February 28, 2011

$1,865.62

(Adm. Ex. 5 at 32)

March 31, 2011

$1,265.62

(Adm. Ex. 5 at 35)

May 1, 2011

$1,265.62

(Adm. Ex. 5 at 36)

May 31, 2011

$1,365.62

(Adm. Ex. 5 at 37)

June 30, 2011

$1,365.62

(Adm. Ex. 5 at 38)

July 31, 2011

$1,365.62

(Adm. Ex. 5 at 39)

August 31, 2011

$665.62

(Adm. Ex. 5 at 40)

October 2, 2011

$665.62

(Adm. Ex. 5 at 41)

October 31, 2011

$446.62

(Adm. Ex. 5 at 42)

November 30, 2011

$75,082.63

(Adm. Ex. 5 at 43)

December 31, 2011

$193.62

(Adm. Ex. 5 at 44)

January 31, 2012

$1,341.12

(Adm. Ex. 5 at 46)

February 29, 2012

$159.98

(Adm. Ex. 5 at 47)

April 1, 2012

$31.67

(Adm. Ex. 5 at 48)

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Administrator's Exhibits 8 through 12

These Exhibits contain copies of four letters from LawCash to Respondent, dated July, 13, 2009, October 6, 2009, May 5, 2010, and June 3, 2010, and one letter from Respondent to LawCash, dated May 14, 2010.

Administrator's Exhibit 21

This Exhibit contains the transcripts of twenty-one voice messages Respondent left for Mark Breeden. The transcripts show that the following are some of those voice messages.

On August 3, 2015, 3:56 p.m., Respondent left a voice message saying, in part:

I thought I had it all straightened . . . just come up tomorrow or call me in the morning or I will call you and we'll pick a time that's good for you and we'll get this done . . . I've got to look through all these bank statements and shit see exactly what's what and add it up and it's just a pain in the ass . . . these checks were written at different times you got to look through all the fucking check books.

(Adm. Ex. 21 at 10).

On August 4, 2015, 10:10 a.m., Respondent left a voice message saying, in part:

I just couldn't get all that shit done yesterday . . . I'm going to work on it right now . . . I got to get this shit done . . . It's complicated but simple . . . But it could be worse at the end because you'll get your money and fuck those people (laughs).

(Adm. Ex. 21 at 12).

On August 7, 2015, 1:30 p.m., Respondent left a voice message saying, in part:

I got this stuff done . . . I should be back by 2:30 or 3:00. When I get back I'll call you . . .If you can, come up here and sign these documents to get this mess straight (laughs). I'd like to send it off today so that the powers that be are happy.

(Adm. Ex. 21 at 14).

On August 18, 2015, 11:37 a.m., Respondent left a voice message saying, in part:

Can you give me a call this after noon and come up . . .We can just sign these documents so it shows you got your money so they think you did and so they will quit bugging you . . . I don't think they're going to do much. They might try and

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sue me but I don't think they'll get anywhere with it. But I need the paper even though it's a fake paper (laughs) . . . we got to keep it hid until the statute runs so they don't know

. . . The guy it's going to doesn't give a rat's ass. All he wants to know is, you know, where is it, is it properly accounted for.

(Adm. Ex. 21 at 16).

On August 20, 2015, 9:59 a.m., Respondent left a voice message saying, in part:

We need to get [the] stuff signed off on and send it . . . to Springfield so that everything's cool and we can deal with this stinking mess (laughs). Well it's been a lot of pain in the ass but in the end you're going to come out with a hell of a lot more money than (laughs) than you would've had.

(Adm. Ex. 21 at 22).

On August 20, 2015, 3:38 p.m., Respondent left a voice message saying, in part:

Hey Mark . . . I need to meet with you tomorrow somewhere . . . I got some papers that we just need to sign, so it looks official, so it will pass inspection and people will say . . . okay. He got his money and he's probably spent it . . . just to be on the safe side, we need to just leave the money hid . . . so nobody knows anything until such time as the statute of limitations runs, which is a year from the date they dismissed it . . . But I really need to get this done tomorrow, that guy in Springfield is bugging me about it. He wants it over.

(Adm. Ex. 21 at 18).

On August 20, 2015, 7:16 p.m., Respondent left a voice message saying, in part:

We need to get together and sign off on some documents that would make everybody happy. The dickheads will think that we got your money long ago. They'll probably do nothing . . . I got to get this done, the guy is bugging me about it.

(Adm. Ex. 21 at 20).

On August 21, 2015, 5:24 p.m., Respondent left a voice message saying, in part:

I finally got all this stuff straight . . . had to go get bank records and stuff and filter through them to get straight with all this stuff (laughs). This Guy wants a big accounting, but I got it done . . . I need to send this thing to him on Monday before he gets pissed off at me (laughs). He'll think something's wrong if I can't get this done. He doesn't realize what a pain in the ass it is . . . I had to go through checks from 2008 until now . . . I got a bunch of receipts I need you to sign. I'll

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copy them and give you copies of all of them because you and I know that they're just basically they're receipts for something that I'm holding for you (laughs) that you don't have yet.

(Adm. Ex. 21 at 24).

On August 21, 2015, 7:56 p.m., Respondent left a voice message saying, in part:

I saw that you called . . . maybe we can get together on Monday . . . I'd definitely like to do something like Monday.

(Adm. Ex. 21 at 26).

On August 24, 2015, 10:29 a.m., Respondent left a voice message saying, in part:

I need to meet with you sometime today . . . Need to get this done . . . We need to do this . . . if we are going to be able to keep these loan bastards from stealing your money, this is the only way we can do it.

(Adm. Ex. 21 at 28).

On August 24, 2015, 12:46 p.m., Respondent left a voice message saying, in part:

Just got to get this shit signed and get it out of the God damn way. It's taking too much of my time to try to explain to these fucking people that I'm not a fucking crook (laughs). I've got everything together now I just need you to sign off on these papers, and I can send them to them and they'll shut up and everything will be, like I said before they might wait and wait and wait until the, right before the statute runs and then file another suit.

(Adm. Ex. 21 at 30).

On August 26, 2015, 3:28 p.m., Respondent left a voice message saying, in part:

Please come today or tomorrow . . . so that we can get this thing done. It's just a burdensome thing for all of us. I'm afraid if we don't get moving on it, we're going to end up losing out After all the trouble we want to keep them from winning.

(Adm. Ex. 21 at 48).

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C. Analysis and Conclusions

1.    The Administrator first charges in Count I that Respondent failed to hold $32,083.67 in settlement funds, which was the property of his client, Mark Breeden, or the lien holder, LawCash, separate from his own funds, in that he removed and converted the settlement funds from his trust account without authority and used those funds for his own purposes, in violation of Rule 1.15(a).

Rule 1.15(a) requires a lawyer to hold funds belonging to a client or third party, in connection with a representation, separate from the lawyer's own funds. The purpose of this requirement is to safeguard and prevent the loss or risk of loss of such funds while in the attorney's possession. See In re Bizar, 97 Ill. 2d 127, 132, 454 N.E.2d 271 (1983); In re McCaffery, 2010PR00153, M.R. 27200 (May 14, 2015) (Hearing Bd. at 11). An attorney may not deposit funds that belong to a client or third party into an account used to pay the attorney's personal or business expenses (In re Gearhart, 05 SH 19, M.R. 21335 (Mar.19, 2007) (Hearing Bd. at 22); In re Petrulis, 96 CH 546, M.R. 16556 (Jun. 30, 2000) (Review Bd. at 3)); may not allow the balance in the trust account holding such funds to fall below the amount owed to the client or third party (Timpone, 208 Ill. 2d at 377); and may not use such funds for his or her own purposes. (McCaffery, 2010PR00153 (Hearing Bd. at 11); In re Facchini, 06 CH 3, M.R. 22616 (Nov. 18, 2008) (Hearing Bd. at 14). It is also well established that funds an attorney receives on behalf of a client for a specific purpose must be held and used by the attorney only for that specific purpose. See In re Hallman, 384 Ill. 325, 331-32, 51 N.E.2d 469 (1943); In re Abbamanto, 19 Ill. 2d 93, 97, 166 N.E.2d 62 (1960).

Thus, if an attorney commingles or converts client or third party funds by depositing them into his or her business account, by allowing the balance of the trust account to fall below the amount owed to the client or third party, or by using such funds for his or her own purposes, the attorney has not held those funds separate from his or her own funds and has violated Rule 1.15(a).

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The evidence and Respondent's admissions show that Respondent was representing Mark Breeden in a personal injury lawsuit that was settled for the amount of $160,000. A check in that amount was issued by the insurance company on August 12, 2008, and endorsed by both Breeden and Respondent. Breeden authorized Respondent to immediately take from the settlement funds $54,743.37 for fees and $1,410.04 for costs. The remaining amount of $105,256.63 was deposited in Respondent's trust account on August 19, 2008. (Ans. at pars. 7-9; Adm. Ex. 5 at 1).

While Breeden's case was pending, he obtained a litigation loan from LawCash. The loan document was signed by both Breeden and Respondent on December 26, 2007. By signing the loan document Respondent acknowledged that the lender, LawCash, had a security interest and lien on the proceeds of Breeden's personal injury case, and that Respondent would make no distribution until he contacted the lender and the lender's lien was satisfied. (Adm. Ex. 2 at 1).

Between August 19, 2008 and May 15, 2009, Respondent, at Breeden's direction, distributed an additional $73,141.29, which included a payment of $45,203.01 to Breeden. Thereafter, Respondent should have been holding $32,115.34 of the settlement funds to satisfy the lien by LawCash. (Ans. at pars. 7-9; Adm. Ex. 5 at 1). However, on May 31, 2009, the balance in Respondent's trust account was $29,927.26. At that time Respondent knew LawCash had not received any of the settlement proceeds and that LawCash's lien had not been satisfied. Thus, Respondent had no authority to take and use funds in his trust that reduced the balance below the amount owed to the lien holder.

Subsequently, while Respondent should have been holding in trust the $32,115.34 from Breeden's settlement funds, the balance in Respondent's trust account was less than $32,115.34 in July and August 2009, as well as in every month from October 2009 to March 2012, except

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for November 2011. (Adm. Ex. 5 at 16-47). On April 1, 2012, the balance in Respondent's trust account was $31.67. (Adm. Ex. 5 at 48). During the period of June 2009 to April 2012, Respondent knew LawCash had not received any of the settlement proceeds and that LawCash's lien had not been satisfied. In fact, in July 2009, October 2009, May 2010, and June 2010, a representative of LawCash sent letters to Respondent regarding LawCash's lien in the Breeden case and made it clear that no distribution had been made to LawCash. Thus, Respondent had no authority to take and use $32,083.67 of the funds in his trust that resulted in reducing the balance to $31.67, which was below the amount owed to LawCash.

Respondent testified at his sworn statement on December 8, 2015, that all the banking for his client trust is done by him personally. (Adm. Ex. 23 at 18).The vast majority of the checks Respondent wrote on his trust account contained a client's name and/or a case number on the face of the check (Adm. Ex. 6). Some checks Respondent wrote prior to May 16, 2009, included the name of Mark Breeden on the memo line, showing that the payment was related to Breeden's case. For example, check number 457, dated May 1, 2009; check number 573, dated May 15 2009; and a counter check dated February 9, 2009, all contain a reference to Breeden's case. (Adm. Ex. 6 at 14, 15).

However, between May 16, 2009, and January 2011, Respondent wrote at least eight checks on his trust account that contained no reference to any client or case number. On three occasions, he wrote such checks on his trust account made payable to himself or his law office and, on the same day, deposited the checks into his law office account. On July 13, 2009, Respondent prepared trust account check number 589 made payable to himself in the amount of $1,500. He endorsed the check and deposited it into his law office account on the same day. (Adm. Ex. 5 at 12; Adm. Ex. 6 at 9; Adm. Ex. 7 at 47). On December 28, 2010, Respondent

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prepared two trust account checks, numbers 493 and 494, in the amounts of $1,000 and $500, respectively, made payable to his law office, endorsed the checks, and deposited them into his law office account on the same day. Also, for five of the checks, check numbers 463, 504, 597, 601, and one counter check, totaling $6,750, Respondent obtained cash. (Adm. Ex. 5 at 14, 18, 22, 32; Adm. Ex. 6 at 10, 12, 23, 27).

Based upon the above, Respondent deliberately removed funds out of his trust account and used the funds for his own purposes, by receiving cash or depositing some of the funds into his business account, without authority, and which reduced the balance in his trust account below the amount he was required and promised to hold until the lien by LawCash was satisfied. Thus, he did not hold funds connected to the representation of Mark Breeden, and which belonged to another, separate from his own funds.

Respondent sought to explain and justify his withdrawal of the $32,115.34 from his trust account. He asserted that he relied on a Final Award of Arbitrator in a case entitled Cambridge Management Group, LLC, Claimant, v. Mark Breeden and William Meacham, and Law Office of William Meacham, Respondents. (Resp. Ex. 6). The arbitrator in that case ruled in favor of the respondents and ordered the claims of Cambridge dismissed "with prejudice." (Resp. Ex. 6 at 2). Respondent claimed to believe LawCash is a company of, or otherwise a part of, Cambridge Management Group and that the arbitration pertained to the litigation loan Breeden had obtained from LawCash. Thus, according to Respondent, as a result of the arbitrator's final decision, LawCash had no legal claim to any of the Breeden settlement funds. Respondent further asserted that he then believed the funds he was holding in trust belonged to Breeden. When Breeden requested cash payments from the funds, Respondent made cash payments to

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Breeden because it was Breeden's money. However, Breeden denied that he received such cash payments from Respondent. (Tr. 68).

We find the Respondent's purported defense to be a complete fabrication and his testimony regarding it to be false for a number of reasons. There is simply no evidence that LawCash had any connection with Cambridge Management Group. The Final Award of Arbitrator referred to an "agreement entered into between the above-named parties dated January 8, 2007 and addendum dated January 10, 2007." (Resp. Ex. 6 at 1). However, the agreement pertaining to Breeden's loan from LawCash was dated December 26, 2007, and there is no evidence of any addendum to that agreement. A letter dated May 5, 2010, from LawCash to Respondent referred only to the agreement Respondent and Breeden signed on December 26, 2007, and no addendum was mentioned. Attorney Paul Marks, who represented LawCash in a lawsuit against Respondent and Breeden in 2014, testified that he was not aware of any connection between LawCash and the entity called Cambridge Management Group. (Tr. 45, 52; Adm. Ex. 13). Based upon the evidence, we find no reasonable basis for Respondent's contention that LawCash was connected to Cambridge Management Group or that the Final Award of Arbitrator was in anyway related to the loan Breeden obtained on December 26, 2007. (Resp. Ex. 6).

We also point out that the above Final Award of Arbitrator was dated March 3, 2011, and a letter informing Respondent of the arbitrator's decision was dated March 7, 2011. (Resp. Exs. 5, 6). The evidence established and Respondent admitted that he should have been holding $32,115.34 in trust after May 15, 2009, to pay LawCash in regard to the loan Breeden obtained in December 2007. However, as stated above, the balance in Respondent's trust account was less than $32,115.34 in July, August, October, November, and December 2009, as well as in every

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month in 2010, and in January and February 2011. All of the foregoing months, in which the balance in Respondent's trust account was less than $32,115.34, were prior to the Final Award of Arbitrator of March 3, 2011, on which Respondent relies. Thus, even if the arbitrator's decision had pertained to the LawCash loan, Respondent could not have believed prior to March 2011 that he was authorized to remove and use those funds based upon an arbitrator's decision that did not exist. Thus, Respondent had no authority to withdraw and use funds from his trust account that lowered the balance below the $32,115.34 between May 15, 2009 and March 2011, when he had to know there was no authority to do so.

In August 2013, LawCash filed a lawsuit against Respondent and Breeden entitled Plaintiff Funding Holding, Inc. D/B/A LawCash v. Mark Breeden; William J. Meacham; Medicare, Madison County, No. 2013-MR-225. (Adm. Ex. 13 at 6). The lawsuit pertained to the litigation loan Breeden obtained on December 26, 2007. (Adm. Ex. 13 at 6, 11). We do not believe that LawCash would have filed such a lawsuit if the Final Award of Arbitrator, dated March 3, 2011, had dismissed with prejudice LawCash's claim pertaining to the foregoing loan to Breeden. Additionally, the court file shows, and Respondent acknowledged, that he did not raise any defense or issue regarding the arbitrator decision on March 3, 2011, in his motion to dismiss, or otherwise, in case number 2013-MR-225. It is impossible to believe that Respondent would not have raised the arbitrator's decision if, in fact, he actually believed it pertained to the LawCash loan to Breeden.

Respondent also contends that he paid Breeden in cash out of the $32,115.34 remaining in trust from the settlement in Breeden's case. However, Respondent prepared no records, not even a notation on any trust account check, to show the funds were paid to Breeden. It is difficult

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to believe that any attorney, and particularly an attorney with 25 years experience, would fail to maintain any record of such payments.

Respondent prepared nineteen receipts in August 2015, about 7 years after the date he claimed he first made a cash payment to Breeden. Respondent then convinced Breeden to sign the receipts. The receipts purport to show that Breeden received various amount of cash, totaling $25,350, from Respondent between July 2008 and October 2013 (Adm. Ex. 22). Both Respondent and Breeden testified that all of the receipts were signed on the same day in August 2015. (Tr. 68, 142-43). However, Respondent previously attempted to conceal the fact that they were signed on the same day by falsely testifying in a sworn statement to the ARDC that Breeden signed the receipts on or about the dates stated on each receipt. (Tr. 154-55).

We find that the receipts are another attempt by Respondent to fabricate and present false evidence. Breeden testified that the receipts were false and that he did not receive any of the funds described in the receipts. He said Respondent was holding $32,115.34 from the settlement funds in his trust account as of May 15, 2009, for the purpose of paying LawCash for the litigation loan to Breeden, and that he never gave Respondent permission to disburse the funds for any other purpose. Breeden explained that he signed the receipts on the same day in August 2015 because he was "getting tired" of receiving telephone calls, "three and four times a day," from Respondent trying to get Breeden to sign the receipts. Breeden also said that Respondent told him that Respondent had the rest of the settlement money and that "after the lawsuit time ran out, he would give me my money." Respondent's comments were referring to LawCash's lawsuit in Plaintiff Funding Holding, Inc. D/B/A LawCash v. Mark Breeden; William J. Meacham; Medicare, Madison County, No. 2013-MR-225, which was voluntarily dismissed in April 2015. Breeden said Respondent told him that the lawsuit could be re-filed within one year,

PAGE 24:

but that after the "year was up, he'd give me my money." However, Breeden did not receive any of the money from Respondent. (Tr. 68-70, 92-93).

Shortly before the above receipts were signed by Breeden, Respondent left several voice messages on Breeden's answering machine.

On August 4, 2015, Respondent left a message stating:

I just couldn't get all that shit done yesterday . . . I'm going to work on it right now . . .I got to get this shit done . . . It's complicated but simple . . . But it could be worse at the end because you'll get your money and fuck those people (laughs). (Emphasis added).

(Adm. Ex. 21 at 12).

On August 7, 2015, Respondent left a voice message stating:

I got this stuff done . . . I should be back by 2:30 or 3:00. When I get back I'll call you . . . If you can, come up here and sign these documents to get this mess straight (laughs). I'd like to send it off today so that the powers that be are happy. (Emphasis added).

(Adm. Ex. 21at 14).

On August 18, 2015, Respondent left a voice message stating:

Can you give me a call this afternoon and come up . . .We can just sign these documents so it shows you got your money so they think you did and so they will quit bugging you . . . I don't think they're going to do much. They might try and sue me but I don't think they'll get anywhere with it. But I need the paper even though it's a fake paper (laughs) . . . we got to keep it hid until the statute runs so they don't know. (Emphasis added).

(Adm. Ex. 21 at 16).

On August 20, 2015, 9:59 a.m., Respondent left a voice message stating:

We need to get [the] stuff signed off on and send it . . . to Springfield so that everything's cool and we can deal with this stinking mess (laughs). Well it's been a lot of pain in the ass but in the end you're going to come out with a hell of a lot more money than (laughs) than you would've had. (Emphasis added).

(Adm. Ex. 21 at 22).

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On August 20, 2015, 3:38 p.m., Respondent left a voice message stating:

Hey Mark . . . I need to meet with you tomorrow somewhere . . . I got some papers that we just need to sign, so it looks official, so it will pass inspection and people will say . . . okay. He got his money and he's probably spent it . . . just to be on the safe side, we need to just leave the money hid . . . so nobody knows anything until such time as the statute of limitations runs, which is a year from the date they dismissed it . . . But I really need to get this done tomorrow, that guy in Springfield is bugging me about it. He wants it over. (Emphasis added).

(Adm. Ex. 21 at 18).

On August 20, 2015, 7:16 p.m., Respondent left a voice message stating:

We need to get together and sign off on some documents that would make everybody happy. The dickheads will think that we got your money long ago. They'll probably do nothing . . . I got to get this done, the guy is bugging me about it. (Emphasis added).

(Adm. Ex. 21 at 20).

On August 21, 2015, Respondent left a voice message stating:

I finally got all this stuff straight . . . I got a bunch of receipts I need you to sign. I'll copy them and give you copies of all of them because you and I know that they're just basically they're receipts for something that I'm holding for you (laughs) that you don't have yet. (Emphasis added).

(Adm. Ex. 21 at 24).

On August 24, 2015, 10:29 a.m., Respondent left a voice message stating:

I need to meet with you sometime today . . . We need to do this . . . if we are going to be able to keep these loan bastards from stealing your money, this is the only way we can do it. (Emphasis added).

(Adm. Ex. 21 at 28).

On August 24, 2015, 12:46 p.m., Respondent left a voice message stating:

Just got to get this shit signed and get it out of the God damn way. It's taking too much of my time to try to explain to these fucking people that I'm not a fucking crook (laughs). I've got everything together now I just need you to sign off on these papers, and I can send them to them and they'll shut up and everything will be, like I said before they might wait and wait and wait until the, right before the statute runs and then file another suit. (Emphasis added).

(Adm. Ex. 21 at 30).

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On August 26, 2015, 3:28 p.m., Respondent left a voice message saying, in part:

Please come today or tomorrow . . . so that we can get this thing done. It's just a burdensome thing for all of us. I'm afraid if we don't get moving on it, we're going to end up losing out. After all the trouble we want to keep them from winning. (Emphasis added).

(Adm. Ex. 21 at 48)

The voice messages corroborate Breeden's testimony and contradict Respondent's testimony. Respondent specifically told Breeden that the receipts were "fake paper" and were for "something" that "you [Breeden] don't have yet." Respondent also said that he would give Breeden the money after the "statute of limitations runs, which is year from the date they [LawCash] dismissed" the lawsuit against Breeden and Respondent. Respondent's testimony at the hearing is inconsistent with what he told Breeden in the telephone messages. Clearly, Respondent made false representations to Breeden to get Breeden to sign the 19 fraudulent receipts.

We also point out that the 19 receipts prepared by Respondent total $25,350, which is less than the $32,115.34 he should have been holding after May 15, 2009, and, thus, fail to account for about $6,700. Also, ten of the receipts show payments prior to May 15, 2009 (Adm. Ex. 22 at 1-10), and do not explain what happened to the $32,115.34 after May 15, 2009.

Based upon the above, we find the Administrator proved by clear and convincing evidence that the Respondent engaged in misconduct by failing to hold $32.083.67 in settlement funds, which was in his possession in connection with a representation and was the property of his client or a lien holder, separate from his own funds, in that he removed and converted the settlement funds from his trust account without authority and used those funds for his own purposes, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010).

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2.    The Administrator also charges in Count I that Respondent received settlement funds while representing Mark Breeden in a personal injury lawsuit and failed to promptly notify LawCash, who had an interest in the settlement based upon a litigation loan LawCash made to Breeden, in violation of Rule 1.15(d) of the Illinois Rules of Professional Conduct (2010).

Rule 1.15(d) provides that "[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.

The following facts were clearly established by the evidence and Respondent's judicial admissions. In March 2006, Respondent filed a personal injury lawsuit on behalf of Mark Breeden. Breeden v. Favier and Coyle, Madison County, No. 06 L 208. In December 2007, while the lawsuit was pending, Breeden entered into a loan agreement with a loan company (hereafter LawCash) and obtained a loan against the proceeds of the above lawsuit. The loan document was signed by both Breeden and Respondent on December 26, 2007. Respondent signed the "Attorney Acknowledgement" section of the loan document that stated the lender had a security interest and lien on the proceeds of Breeden's personal injury case, and that Respondent would make no distribution until he contacted the lender and the lender's lien was satisfied. (Adm. Ex. 2). A settlement was reached in Breeden's lawsuit in July 2008, and a settlement check in the amount of $160,000 was issued by the defendants' insurance company on August 12, 2008. The check was endorsed by both Respondent and Breeden. Based upon their agreement, Respondent immediately took fees of $54,741.37 and costs advanced of $1,410.04. On August 19, 2008, the remaining amount form the settlement, that is $105,256.63, was deposited into Respondent's trust account. At that time, Respondent knew, based upon the loan agreement he signed in December 2007, that LawCash had an interest in the settlement funds from Breeden's lawsuit deposited into his trust account.

Between August 19, 2008 and May15, 2009, Respondent distributed $73,141.29 from the remaining settlement amount of $105,256.63. However, no distribution was made to LawCash.

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Thereafter, Respondent should have been still holding $32,115.34 of the settlement funds in trust.

In July 2009, a representative of LawCash sent a "Notice of Lien" letter to Respondent regarding LawCash's lien in the Breeden case. The letter stated that LawCash "has been trying to get a status update on [Breeden's] case," and requested Respondent to provide information about the case. (Adm. Ex. 8). On October 6, 2009, the LawCash representative sent another letter to Respondent, again requesting Respondent to provide information about Breeden's case. (Adm. Ex. 9). On May 5, 2010, another representative of LawCash sent a letter to Respondent informing him that LawCash was aware that Breeden's case was "resolved and no payment was made to satisfy the outstanding lien with LawCash. (Adm. Ex. 10).

Based upon the above, it is clear that LawCash was not aware until about May 2010 that Breeden's lawsuit had been resolved and that Respondent never informed LawCash that he had received the settlement funds from Breeden's lawsuit in August 2008.

In discussing whether a refund by a lawyer was made "promptly," the Supreme Court stated "[a]though there is scant guidance as to what time period is deemed 'prompt' under the rules, it is readily apparent that a delay measured in years will fail the promptness test." In re Howard, 188 Ill. 2d 423, 436, 721 N.E.2d 1126 (1999). In the case before us, Respondent knew LawCash had an interest, by way a lien on the proceeds of any recovery in Breeden's case, yet he did not inform LawCash that he had received the settlement funds, and LawCash did not become aware of the settlement for almost two years after Respondent received the settlement funds, from August 2008 to May 2010.Thus, Respondent did not promptly inform LawCash that he had received funds in which LawCash had an interest.

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Respondent testified that he wrote a letter informing LawCash of the settlement in Breeden's case, and that LawCash never responded. He added that he "should have" a copy of his letter. (Tr. 145-46). We do not find Respondent to be credible. As discussed in section (1), above, Respondent has demonstrated a pattern of deceit, he has attempted to fabricate documents, and his testimony is in conflict with some of his own prior statements. Also, we find it impossible to believe that LawCash would not have responded to any notification it received from Respondent regarding Breeden's case being settled or that Respondent would not have replied to LawCash's first letter to him in July 13, 2009, if in fact he had previously sent a letter to LawCash regarding Breeden's settlement.

Based upon the above, we find the Administrator proved by clear and convincing evidence that the Respondent received settlement funds while representing Mark Breeden in a personal injury lawsuit and failed to promptly notify LawCash, who Respondent knew had an interest in the settlement funds, that he had received such funds, in violation of Rule 1.15(d) of the Illinois Rules of Professional Conduct (2010).

3.    The Administrator further charges in Count I that Respondent engaged in dishonesty, fraud, deceit, or misrepresentation by knowingly converting $32,083.67 of settlement funds from Mark Breeden's personal injury lawsuit and by knowingly failing to inform LawCash that he had received the settlement funds, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

As discussed in section (1), above, there is no doubt that Respondent engaged in conversion by taking and using for his own purposes funds that caused the balance in his trust account to be far less than the $32,115.34 in settlement funds that he should have been holding to pay a lien holder. Respondent admitted that he should have been holding the foregoing amount in trust after May 15, 2009. However, from May 31, 2009 through February 2012, Respondent's trust account frequently had a balance of less than $32,000. By April 1, 2012, the balance was

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$31.67. (Adm. Ex. 5 at 48). While he was removing the funds form his trust account, Respondent knew that he had not paid any amount to LawCash.

We recognize that the Supreme Court has held that conversion, that is, an attorney's taking and using without authority client or third party funds, does not necessarily involve dishonesty, fraud or deceit. Rather, we are required to consider the circumstances surrounding the attorney's conduct to determine whether the attorney engaged in dishonesty, fraud or deceit. See In re Mulroe, 2011 IL 111378, pars. 17-23; In re Thomas, 2012 IL 113035, pars. 87-90; In re Karavidas, 2013 IL 115767, pars. 62-63, 74-78.

In this case, we find that Respondent did engage in dishonesty by intentionally withdrawing and using funds from his trust account while knowing he had no authority to do so. This is not a case in which an attorney made a mistake or there was careless bookkeeping. Rather, it is a case in which an attorney deliberately, month after month, took funds that belonged to another when he knew he had no authority to do so. For example, as discussed above, between May 16, 2009, and January 2011, Respondent wrote numerous checks on his trust account that contained no reference to any client or case number, and either deposited the checks into his law office account or obtained cash.

In the following cases involving conversions, the attorneys were also found to have engaged in dishonesty. In In re Huebner, 2011PR00129, M.R. 26649 (May 16, 2014), the respondent was found to have engaged in dishonesty based upon the fact that he was holding funds in escrow and "knew the funds did not belong to him, yet he used them to pay his rent and other personal expenses." (Hearing Bd. at 16-17; Review Bd. at 8).

In In re Smith, 2013PR00076, M.R. 27563 (Sept. 21, 2015), the Review Board stated that the respondent engaged in dishonest conduct when he took and used "the earnest money in the

PAGE 31:

real estate transaction and the funds belonging to the medical providers in the three personal injury settlements, knowing that the funds did not belong to him." (Review Bd. at 4-5).

In In re Helmig, 2013PR00019, M.R. 27161 (Mar. 12, 2015), the respondent, a very experienced attorney, was found to have engaged in dishonesty by deliberately taking and using for his own purposes the funds of an elderly client for which he had a power of attorney. The respondent claimed that he took the money as "loans" from his client and presented promissory notes in an attempt to document the purported loans. However, he made no note of a loan on the face of the checks he wrote to himself, and the Hearing Board found that the promissory notes were not created contemporaneously with the taking of the money. The Review Board affirmed that finding. (Hearing Bd. at 27; Review Bd. at 5-6).

Based upon the above, it is clear that the Respondent deliberately took and used funds he knew he had no authority to take or use, and thereby engaged in dishonesty. See Mulroe, 2011 IL 111378, pars. 22, 23; Karavidas, 2013 IL: 115767, pars. 74-78.

We also find that Respondent engaged in dishonesty, fraud and deceit by not informing LawCash in August 2008 that he had received the settlement funds from Breeden's case.

It is well established that Rule 8.4(c) may be violated by omissions as well as by affirmative acts. An attorney engages in dishonesty by "any conduct, statement or omission that is calculated to deceive," including "the suppression of truth or the suggestion of what is false." In re Gerard. 132 Ill. 2d 507, 528, 548 N.E.2d 1051 (1989). See also Edmonds, 2014 IL 117696, par. 53; In re Yamaguchi, 118 Ill. 2d 417, 426, 515 N.E.2d 1235 (1987). The Court also pointed out that "motive and intent are rarely proved by direct evidence, but rather must be inferred from the conduct and the surrounding circumstances." Edmonds, 2014 IL 117696, par. 53, citing In re Stern, 124 Ill. 2d 310, 315 529 N.E.2d 562 (1988).

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In this case, Respondent signed a document in which he expressly stated that he would make no distribution of Breeden's settlement funds until he contacted the lender (LawCash) and the lender's lien was satisfied. (Adm. Ex. 2 at 1). Respondent did not inform LawCash that he had received settlement funds from Breeden's lawsuit. Thereafter, he not only distributed funds, but also converted some of the settlement funds for his use without informing LawCash he had received settlement funds. The overall circumstances clearly show that Respondent deliberately acted to deceive LawCash by not informing LawCash of the settlement funds he had received.

We note that, even in July 2009, when LawCash sent Respondent a letter requesting the status of Breeden's case (Adm. Ex. 8), Respondent did not reply. Again, in October 2009, Respondent did not reply to another request from LawCash for information about Breeden's case. (Adm. Ex. 9). It was not until May 2010, that Respondent acknowledged to LawCash that he had received settlement funds, but that was only after LawCash had informed Respondent that LawCash knew Breeden's case had settled. (Adm. Exs. 10, 11).

Additionally, as discussed in section (1), above, the voice messages Respondent left for Breeden in August 2015 expressed his intent to hide the settlement funds from LawCash. (Adm. Ex. 21).

Based upon the above, we find that the Administrator proved by clear and convincing evidence that Respondent engaged in dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

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II.    In Count II, Respondent is charged with knowingly making a false statement of fact or law to a tribunal, and engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation.

A. Summary of Count II

We find that the Administrator proved Respondent engaged in the misconduct charged in Count II. Specifically Respondent knowingly made false statements to a tribunal by testifying at his discovery deposition that he did not know what happened to his clients settlement funds.

B. Admitted Facts and Evidence Considered

We considered the admitted facts and evidence set out in Count I, and the following evidence. On August 20, 2013, LawCash filed a lawsuit against Respondent and Mark Breeden, entitled Plaintiff Funding Holding, Inc. D/B/A LawCash v. Mark Breeden; William J. Meacham; Medicare, Madison County, No. 2013-MR-225. (Adm. Ex. 13 at 6). The lawsuit pertained to the litigation loan Breeden obtained on December 26, 2007. (Adm. Ex. 13 at 6, 11). Attorney Paul Marks represented LawCash in that lawsuit. (Tr. 44-45, 49). Marks reviewed Respondent's trust account records and prepared a document in which he concluded that $39,303.62 from the $160,000 settlement in Breeden's personal injury case was unaccounted for. (Tr. 51-54; Adm. Ex. 14 at 81). During the course of the foregoing lawsuit, a Notice of Discovery Deposition was sent to Respondent and to the court on February 19, 2015 (Adm. Ex. 13 at 253-55), and Respondent appeared for the deposition on February 27, 2015.

At the deposition Respondent was questioned under oath by Mr. Marks. (Adm. Ex. 14; Tr. 52-53).

The transcript of the deposition on February 27, 2015 (Adm. Ex. 14) shows, and it was deemed admitted, that Respondent was asked the following questions by Mr. Marks and gave the following answers.

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Q:    In terms of a summary, is it fair to say this summary [Adm. Ex. 14 at 81] represents from what we can tell here today all of the expenses paid for Mr. Breeden out of the settlement funds?

A:    That's all we found, I guess. I don't know.

Q:    By my calculations that leaves a balance of $39,303.62.

A:    I missed something. I gave him a check for -I know that he showed up and got checks quite a few times, so I don't know.

Q:    Do you know where that balance may be?

A:    No, not off the top of my head.

Q:    I want to refer you back to Document Number 16, and if we look to the second page it's a [bank] statement from August 29th of 2014, and is it fair to say that that showed an ending balance on that date of $687.23?

A:    That's what it says, yeah.

Q:    Any idea where -if you can reconcile the difference, and that is, the bank saying in August of last year that there's about $687.00 there, but by my calculation there should be remaining in your account over $39,000.00 for Mr. Breeden. Any explanation?

A:    Unless I may have gave him some checks that weren't -just like a blank check or something.

Q:    Do you think you gave Mr. Breeden a blank check?

A:    I don't know. I can't figure this out. Whatever it is, I have to straighten it out, that's all, because I don't know.

Q:    Okay.

A:    I've never been in a situation like this. I never had to -everybody always got paid. Some clients are more difficult than others to deal with.

Q:    If it's any solace, I don't enjoy doing what I have to do today.

A:    I don't know exactly what -where Mr. Breeden -

Q:    I didn't hear that, sir.

A:    I don't know -I said I don't know -I know Breeden, he would pop up sometimes and I would give him a check and -I'm not a hundred percent sure if -you know, I can't figure out how it could be off that much, but I'm not an accountant.

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* * *

A:    Yeah. I don't have any idea. I don't know what in the world has happened here. It don't look good.

(Adm. Ex. 14 at 16-17).

The Respondent explained that, when he went to the deposition, he thought he would be asked "where's Breeden's money," and was "going to tell him, well, you'll have to ask Mr. Breeden because I believe that that is a matter of attorney confidentiality." He added that "I'm not going to willingly tell you that Mark Breeden got the money." He further testified that "I got tripped up in my deposition when they said it was 40 some thousand, and I didn't think it was that much, and then I had to go look." (Tr. 114-16).

C. Analysis and Conclusions

1.    The Administrator charges in Count II that Respondent knowingly made a false statement of fact or law to a tribunal by knowingly testifying at his discovery deposition on February 27, 2015, that he did not know what happened to the Breeden settlement funds, in violation of Rule 3.3(a) of the Illinois Rules of Professional Conduct (2010).

As set forth in the Analysis and Conclusions for charge (1) of Count I, above, we found that Respondent, while knowing that he had no authority to do so, deliberately took and used for his own purposes about $32,115.34 of settlement funds obtained from the case of his client Mark Breeden. Thus, Respondent obviously knew why the settlement funds he was asked about at his deposition were missing. By testifying under oath that he did not know what happened to the Breeden settlement funds, Respondent knowingly testified falsely.

We also find that Respondent's false testimony at his deposition pertained to material facts. Statements are material if they are "important to the issue before the court" (In re Ducey, 03 SH 123, M.R.23053 (May 18, 2009) (Review Bd. at 19-20), and are not material if they are "of no consequence to the issue" before the court. In re Geleerd, 07 CH 31, M.R. 24359 (Mar.

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21, 2011), (Review Bd. at 19-21). See also In re Cahnman, 2009PR00118, M.R. 26517 (May 16, 2014) (Hearing Bd. at 12-14; Review Bd. at 7-8); In re Verett, 07 SH 105, M.R. 22567 (Sept. 17, 2008) (Hearing Bd. at 27-31).

The questions asked of Respondent at the deposition pertained to the matter of what happened to the missing settlement funds from Breeden's lawsuit. That was clearly material to issues and outcome of the lawsuit, in which a lien holder was seeking to locate and recover the funds from Respondent and/or Breeden to pay, in part, the amount due for a litigation loan to Breeden. (Adm. Ex. 13 at 6-16).

We further find that Respondent's false statements at his deposition were made to a tribunal. Comment [1] to Rule 3.3 states:

This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal" and " [i]t also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition.

Respondent was representing a client in the above case, himself, and filed an Entry of Appearance to that effect (Adm. Ex. 13 at 24), and his false statements were made during the ancillary proceeding of a deposition. (Adm. Ex. 14).

Based upon the above, we find that the Administrator proved by clear and convincing evidence that Respondent knowingly made a false statement of fact or law to a tribunal, in violation of Rule 3.3(a) of the Illinois Rules of Professional Conduct (2010).

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2.    The Administrator also charges in Count II that by testifying at his discovery deposition on February 27, 2015, that he did not know what happened to the Breeden settlement funds, Respondent engaged in dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

Dishonesty, fraud, deceit or misrepresentation includes "anything calculated to deceive, including the suppression of truth and the suggestion of falsity." Edmonds, 2014 IL 117696, par. 53. See also Gerard, 132 Ill. 2d at 528; Elder, 2014PR00019 (Hearing Bd. at 25-27).

As discussed in section (1), above, we found that Respondent knowingly testified falsely under oath that he did not know what happened to the Breeden settlement funds. Clearly, Respondent did know what happened to the missing settlement funds because he took and used more than $32,000 of the settlement funds for his own purposes, knowing he had no authority to do so. Clearly, the Respondent deliberately and purposefully sought to deceive by his false testimony, and thereby engaged in dishonesty. See Thomas, 2012 IL 113035, pars. 87-90.

Based upon the above, we find that the Administrator proved by clear and convincing evidence that Respondent engaged in dishonesty, fraud, deceit, or misrepresentation by knowingly giving false testimony at his deposition, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

III.    In Count III, Respondent is charged with knowingly making a false statement of material fact in connection with a disciplinary matter, and engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation.

A. Summary of Count III

We find that the Administrator proved Respondent engaged in all of the misconduct charged in Count III. Specifically, Respondent knowingly made a false statement in a disciplinary matter when he created and submitted false receipts and made false statement to his client to get his client to sign the receipts, and falsely testified in a sworn statement.

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B. Admitted Facts and Evidence Considered

We considered the admitted facts and evidence set out in section (1) of Count I, and the following evidence. In April, 2015, LawCash moved for voluntary dismissal of its lawsuit against Respondent and Breeden, case number 13-MR-225, and the circuit court allowed the motion on April 16, 2015. LawCash was granted leave to re-file. (Adm. Ex. 13 at 5, 266, 269).

On July 7, 2015, Administrator's counsel sent a letter to Respondent regarding Administrator's investigation number 2014IN02844. (Adm. Ex. 15). The letter informed Respondent that the ARDC had received a copy of Respondent's deposition of February 27, 2015 (Adm. Ex. 14) and requested Respondent to provide relevant documents and copies of records, since August 1, 2008, pertaining to his trust account that he was required to maintain by Rule 1.15.

Respondent acknowledged that he prepared 19 receipts, dated from 2008 to 2013, for Breeden to sign. (Adm. Ex. 22). The receipts purported to show that Breeden had received cash from Respondent in the amount stated on each receipt. Respondent also acknowledged that all of the receipts were signed by Breeden on the same day in August 2015, which was very soon before Respondent sent them to the ARDC. However, Respondent's also testified that he gave Breeden the amounts of money referred to on the receipts, even though the receipts were signed years after the dates on them. (Tr. 142-44, 150).

Breeden testified that he signed all 19 of the receipts (Adm. Ex. 22) prepared by Respondent at Respondent's office on the same day, August 27, 2015. Breeden claimed the receipts were false and that he did not receive the money set out in the receipts. Breeden explained that he signed the receipts because he was "getting tired" of receiving telephone calls, "three and four times a day," from Respondent trying to get Breeden to sign the receipts. Also Respondent told Breeden that after the LawCash's lawsuit was "dropped" in April 2015, it could

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be re-filed within one year, but that after the "year was up, he'd give me my money." However, Breeden did not receive any of the money from Respondent. (Tr. 68-70, 92-93).

Respondent left twenty-one telephone messages on Breeden's answering machine from August 3 through August 26, 2015. (Adm. Ex. 21). The telephone messages are set out in the Admitted Facts and Evidence Considered for section (1) of Count I, above. In summary, Respondent specifically told Breeden in the telephone messages that the receipts were "fake paper" and were for "something" that "you [Breeden] don't have yet." Respondent also said in the messages "we got to keep it hid until the statute runs so they don't know" and that he would give Breeden the money after the "statute of limitations runs, which is a year from the date they [LawCash] dismissed" the lawsuit against Breeden and Respondent. Respondent further stated in his messages that "we need to get [the] stuff signed off on and send it . . . to [the ARDC in] Springfield" and "I really need to get this done tomorrow, that guy [Administrator's counsel] in Springfield is bugging me about it."

On December 8, 2015, Respondent appeared and gave a statement under oath at the ARDC office in Springfield. The transcript of the sworn statement (Adm. Ex. 23) shows that Respondent was asked the following questions and gave the following answers

Q:     So if you do the math, and I think you've been through this before, after the disbursements to Mr. Breeden or to persons that he directed you to pay, and payment of a few medical liens, and allowing $54,000 for your fee and costs, there remained about $27,000 of the settlement funds in your trust account, correct?

A:    Yes, which were paid out to Mr. Breeden.

(Adm. Ex. 23 at 34).

* * *

Q:    They [LawCash] ended up filing a lawsuit?

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A:    Yeah, and then --well, first they didn't, and then it went for a few years and then they filed a lawsuit, and then they asked for some discovery. Well, I had paid out the money to Breeden over a period of time in cash, and I have receipts that Mark Breeden signed.

(Adm. Ex. 23 at 35).

* * *

Q:    Okay. Mr. Meacham, I had asked you for receipts to which you had alluded --

A:    Yes.

Q:    --for cash disbursements to Mark Breeden of the balance on -of his settlement funds.

A:    Yes.

Q:    And today you've produced to me a number of receipts, and these were all signed by Mark Breeden?

A:    Yes.

Q:    On or about the dates indicated?

A:    Yes.

Q:    And --and many of these receipts for cash also refer to check numbers.

A:    Yes.

Q:    And I think you explained, we figured out that what, you would write a check to yourself on the trust account?

A:    Yes.

Q:    Cash it?

A:    Cashed them at his direction.

Q:    And there was no notation on the check that that was for Mark Breeden?

A:    No, there wasn't. It would have just been cash, check cashed and cash in hand is what he wanted

(Adm. Ex. 23 at 38-39)

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C. Analysis and Conclusions

1.    The Administrator first charges in Count III that Respondent knowingly made false statements of material fact in connection with a disciplinary matter by knowingly creating and submitting false receipts to the ARDC, knowingly making false statements to Breeden in order to get Breeden to sign the 19 receipts; and knowingly testifying falsely at his sworn statement to the ARDC, in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct (2010).

Rule 8.1(a) specifically provides that a lawyer, "in connection with a disciplinary matter, shall not knowingly make a false statement of material fact." Comment [1] to Rule 8.1 states that "it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct."

The letter sent to Respondent by Administrator's counsel on July 7, 2015, expressly informed Respondent that there was an active disciplinary investigation into his conduct. (Adm. Ex. 15). Additionally, the voice messages Respondent left on Breeden's telephone answering machine show that Respondent was fully aware of the disciplinary investigation and that he was preparing 19 receipts to be signed by Breeden for the purpose of documenting to Administrator's counsel that Respondent paid Breeden the money set out on the receipts. (Adm. Ex. 21 at 14, 16, 20, 22, 24). Also, the Respondent's testimony at the hearing and in his sworn statement on December 8, 2015, show that he did submit the 19 receipts to the ARDC and claimed them to be truthful. (Tr. 142-43; Adm. Ex. 23 at 35, 38-39). Consequently, the Respondent's creation and submission of the receipts to the ARDC; his statements to Breeden in August 2015 to get Breeden to sign the 19 receipts; and his testimony in his sworn statement pertained to material facts in connection with a disciplinary matter.

In our Analysis and Conclusions in section (1) of Count I, above, we found that the Respondent intentionally took and used (converted) more than $32,000 in settlement funds from his client Mark Breeden's personal injury case, knowing that he had no authority to do so. We

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also found that the Respondent did not distribute to Breeden any of the funds set out on the 19 receipts he prepared and which Breeden signed in August 2015. (Adm. Ex. 22). Additionally, we found that Respondent made false representations to Breeden to get Breeden to sign the 19 fraudulent receipts. We further found that Respondent prepared the 19 receipts knowing they were false and with the intent to present false evidence to the ARDC.

Based upon our findings in Count I, we find that, in connection with a disciplinary investigation, Respondent knowingly made false statements of material fact by knowingly creating and submitting false receipts to the ARDC. He also made false statements to Breeden that he (Respondent) was holding money for and would distribute it to Breeden. The purpose of the foregoing statements was to convince Breeden to sign the fraudulent receipts. In fact, Respondent had already taken and used the funds in question.

We also find that Respondent knowingly testified falsely during his sworn statement on December 8, 2015. He falsely testified that "I had paid out the money to Breeden over a period of time in cash;" that the 19 receipts signed by Breeden accurately showed the "cash disbursements to Mark Breeden;" and that all the receipts were signed by Breeden "on or about the dates indicated" on the receipts. (Adm. Ex. 23 at 35, 38).

Based upon the above, we find that the Administrator proved by clear and convincing evidence that Respondent knowingly made false statements of material fact in connection with a disciplinary matter, in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct (2010).

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2.    The Administrator also charges in Count III that Respondent engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation by making false statements to Mark Breeden; by knowingly creating and submitting false receipts to the ARDC; and by testifying falsely at his sworn statement to the ARDC on December 8, 2015, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

Based on our findings in section (1), above, we also find that Respondent engaged in fraud, dishonesty, deceit, or misrepresentation. By knowingly and purposefully making false statements to Mark Breeden, creating and submitting false receipts to the ARDC, and testifying falsely at his sworn statement Respondent engaged in conduct calculated to deceive his client and the ARDC. See Thomas, 2012 IL 113035, pars. 89-90. Therefore, we find that the Administrator proved by clear and convincing evidence that Respondent engaged in dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

IV.    In Count IV, Respondent is charged with failing to prepare and maintain records of his client trust account 

A. Summary of Count IV

We find that the Administrator proved Respondent engaged in the misconduct charged in Count IV. Specifically Respondent failed to prepare and maintain records of his client trust account.

B. Facts Considered

On June 7, 2016, the Administrator field a Motion to Strike Respondent's Amended Answer to Counts IV, V, and VI and Deem those Counts Admitted. On July 14, 2016, the Chair granted the Administrator's Motion and ordered that "Counts IV, V, and VI of the Administrator's Complaint are deemed admitted." Thus, we consider following facts alleged in Count IV to be admitted.

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At all times referenced in the Complaint, Rule 1.15(a)(1) through (a)(4) and (a)(7) of the Illinois Rules of Professional Conduct (2010) required Respondent to prepare and maintain records relating to his client trust account number 89501, including that he:

(1)    prepare and maintain receipt and disbursement journals for all client trust accounts required by this Rule containing a record of deposits and withdrawals from client trust accounts specifically identifying the date, source, and description of each item deposited, and the date, payee and purpose of each disbursement;

(2)    prepare and maintain contemporaneous ledger records for all client trust accounts showing, for each separate trust client or beneficiary, the source of all funds deposited, the date of each deposit, the names of all persons for whom the funds are or were held, the amount of such funds, the dates, descriptions and amounts of charges or withdrawals, and the names of all persons to whom such funds were disbursed;

(3)    maintain copies of all accountings to clients or third persons showing the disbursement of funds to them or on their behalf, along with copies of those portions of clients' files that are reasonably necessary for a complete understanding of the financial transactions pertaining to them;

(4)    maintain all client trust account checkbook registers, check stubs, bank statements, records of deposit, and checks or other records of debits; and

* * *

(7)    prepare and maintain reconciliation reports of all client trust accounts, on at least a quarterly basis, including reconciliations of ledger balances with client trust account balances.

C. Analysis and Conclusions

At no time between January 2010 and December 8, 2015, did Respondent prepare and maintain journals, ledgers, accountings, registers, reconciliation reports and other records of his client trust account number 89501 as required by the above-quoted provisions of Rule 1.15(a).Based upon the above, we find that Respondent engaged in the misconduct of.failing to prepare and maintain records of his client trust account, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010).

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V.    In Count V, Respondent is charged with failing to act with reasonable diligence and promptness in representing a client; failing to keep the client reasonably informed about the status of the matter; and engaging in conduct that is prejudicial to the administration of justice.

A. Summary of Count V

We find that the Administrator proved Respondent engaged in all of the misconduct charged in Count V. Specifically, we find that Respondent failed to act with reasonable diligence and promptness in representing a client; failed to keep the client reasonably informed about the status of the matter; and engaged in conduct that is prejudicial to the administration of justice.

B. Facts Considered

On July 14, 2016, the Chair ordered that Count V of the Administrator's Complaint was deemed admitted. Thus, we consider the following facts alleged in Count V to be admitted.On March 20, 2012, Carolyn S. Cawvey ("Cawvey") tripped and fell while walking on an uneven sidewalk in South Roxana, Illinois. Cawvey suffered injuries as a result of the fall. Subsequently, Respondent and Cawvey agreed that Respondent would represent her in a legal action against South Roxana to recover damages as a result of Cawvey's fall and injuries. They agreed that Respondent's fee would be contingent upon recovery, in the amount of one-third of any recovery.

On March 19, 2013, Respondent filed a lawsuit for Cawvey. The matter was titled Carolyn S. Cawvey, Plaintiff, v. Village of South Roxana, Illinois, Defendant, and docketed as case number 13-AR-121 in the Circuit Court for Madison County, Illinois. On May 12, 2013, South Roxana filed a motion to dismiss Cawvey's complaint, under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/3-102(a), because the complaint did not allege that South Roxana had notice of the unsafe condition of its sidewalk

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prior to Cawvey's fall and injuries. On May 31, 2013, neither Respondent nor Cawvey appeared for a hearing on South Roxana's motion to dismiss, and the court allowed the motion.

On July 1, 2013, Respondent filed a motion to reinstate case number 13-AR-121, alleging that he had missed the hearing on May 31, 2013, because of a calendaring omission. On August 2, 2013, at a hearing on the motion to reinstate, Respondent conceded that the complaint was defective and requested leave to file an amended complaint. On that date, the court entered an order that allowed the reinstatement of Cawvey's case and granted 21 days in which to file an amended complaint. At no time did Respondent file an amended complaint in case number 13-AR-121. After August 2, 2013, Respondent took no further action in Cawvey's case.

On November 18, 2013, South Roxana filed a motion to dismiss case number 13-AR-121 for want of prosecution. Respondent filed no response to the motion and did not appear December 13, 2013, for the hearing on the motion. On that date, the court entered an order that again dismissed Cawvey's case.

As of December 13, 2014, Cawvey's claims against South Roxana became time-barred. At no time did Respondent inform Cawvey that her case had been dismissed for want of prosecution or that her case had become time-barred.

C. Analysis and Conclusions

Based upon the above facts, we find that the Respondent failed to act with reasonable diligence and promptness, in that he did not file an amended complaint in case number 13-AR-121, did not respond to the defendant's motion to dismiss for want of prosecution, and did not take action to reinstate the case after it was dismissed. Thus, we find that Respondent engaged in the misconduct of failing to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010).

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Based upon the above facts, we find that the Respondent did not inform Carolyn Cawvey that her case had been dismissed for want of prosecution and had become time-barred. Thus, we find that Respondent engaged in the misconduct of failing to keep the client reasonably informed about the status of the matter, in violation of Rule 1.4(a)(3) of the Illinois Rules of Professional Conduct (2010).

Based upon the above facts, we find that the Respondent did not file an amended complaint on behalf of his client Carolyn Cawvey in case number 13-AR-121; did not respond to the defendant's motion to dismiss for want of prosecution; and did not take action to reinstate the case after it was dismissed. As a result Cawvey's case became time-barred. Thus, we find that Respondent engaged in the misconduct of engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

VI.    In Count VI, Respondent is charged with failing to act with reasonable diligence and promptness in representing a client 

A. Summary of Count VI

We find that the Administrator proved Respondent engaged in the misconduct charged in Count VI. Specifically, Respondent failed to timely file a lawsuit on behalf of his client.

B. Facts Considered

On July 14, 2016, the Chair ordered that Count VI of the Administrator's Complaint was deemed admitted. Thus, we consider that the following facts alleged in Count VI to be admitted.

On July 22, 2013, Mary Breeden ("Mary") slipped and fell while trying to avoid mud on the sidewalk on which she was jogging in Granite City, Illinois. Mary suffered injuries as a result of the fall. Respondent and Mary agreed that Respondent would represent her in a legal action

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against Granite City to recover damages as a result of Mary's fall and injuries. They agreed that Respondent's fee would be contingent upon recovery, in the amount of one-third of any recovery.

On August 23, 2013, Respondent and Mary participated in a telephone interview with Kimberly Stoff, who was an adjuster for Gallagher Bassett Services, Inc., which managed Granite City's insurance coverage in relation to Mary's fall and injuries. After August 23, 2013, Respondent took no further action in relation to Mary Breeden's claim against Granite City. At no time did Respondent file a lawsuit for Mary. At no time did Mary agree to a settlement of her claim.

On July 22, 2014, Mary's claim against Granite City arising from her fall and injuries on July 22, 2013, became time-barred under the provisions of the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/8-101.

C. Analysis and Conclusions

Based upon the above facts, we find that the Respondent failed to file a lawsuit on behalf of Mary Breeden within the one-year limitations period. Thus, we find that Respondent engaged in the misconduct of failing to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010).

EVIDENCE OFFERED IN AGGRAVATION AND MITIGATION

Witness Testimony

Larry Calvo, a lawyer licensed in both Illinois and Missouri, testified that Carolyn Cawvey asked him if it was normal for an attorney not to work on client files and for clients not to be able to get in touch with an attorney. Calvo told her that such conduct was "very unusual." Cawvey told him that she was talking about her own case (Count V) and that Respondent was her attorney. Calvo then attempted to contact Respondent by phone and left several messages for him. Respondent did not return any calls. Calvo then sent a letter to Respondent on November 5,

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2014, requesting Respondent to contact him and to forward Cawvey's file to Calvo. (Adm. Ex. 39). Calvo never received any response form Respondent. (Tr. 36-39). Calvo said that because of the above matter with the Respondent, Cawvey has a negative attitude toward the legal profession. (Tr. 39).

Respondent's Letter to the ARDC

On December 3, 2010, Respondent sent a letter to Myrrha B. Gutzman, Senior Counsel at the ARDC. (Resp. Ex. 12). In that letter, Respondent stated "I have held the sum of $37,019.62 in the above referenced [trust] account pending resolution of the outstanding Medicare lien, which is paramount." (Resp. Ex. 12 at 2). On cross-examination, Administrator's counsel called Respondent's attention to a bank statement for his trust account, dated December 1, 2010, which showed a balance of $14,084.62. (Adm. Ex. 5 at 29). Respondent was then asked why he stated in his letter of December 3, 2010, that he maintained a balance of more than $37,000, when a statement two days earlier showed a balance of about $14,000. Respondent replied "I don't know. Maybe I didn't look at the thing there. I know I had money in there before that. I don't know." (Tr. 149-50). Respondent testified in his sworn statement on December 8, 2015, that he is the only person who has access to his trust account, and that he received and reviewed the monthly statements for that account. (Adm. Ex. 23 at 18, 20).

We find that Respondent either intentionally made a false statement in his letter to Ms. Gutzman or made a statement with reckless disregard for its truth or falsity. The monthly statements for Respondent's trust account show that the balance in every month from August 2009 through December 2010 was less than $37,000. Thus, Respondent could not have possibly believed that "I know I had [$37,000] in there before [December 3, 2010]." If he had reviewed his bank statements, as he claimed he did, he would have known the balance had been less than

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$37,000 for more than year prior to his letter to Ms. Gutzman On the other hand, if he did not review the bank statements, he made the false statement in the letter while knowing he had no reasonable basis for doing so. In either case, his letter was deceitful. See Thomas, 2012 IL 113035, pars. 87-90; In re Nadenbush, 2011PR00077, M.R. 25622 (Jan. 18, 2013) (Hearing Bd. at 33).

Financial Difficulties

The Administrator's exhibits included numerous Federal and Illinois tax liens filed against Respondent from 2005 through 2014. (Adm. Exs. 27-30, 33-37). Even though some of the liens were released (Adm. Exs. 27, 33; Resp. Ex. 19), they demonstrate that Respondent has had ongoing financial difficulties, which is an aggravating factor when an attorney engages in conversion.

Additionally, two memorandums of judgment against Respondent, in the amounts of $32,970.08 and $7,077.00, were recorded in June and July 2010. (Adm. Exs. 31, 32). That is the period in which Respondent was converting the funds at issue in this case. Again, this is evidence of Respondent's financial problems.

Prior Discipline

The Respondent has been licensed to practice law since 1989. The Administrator filed a Report on October 4, 2016, stating that Respondent has not been previously disciplined.

RECOMMENDATION

A. Summary

We recommend that Respondent be disbarred. We base this recommendation on the serious nature of Respondent's misconduct and the substantial aggravating facts presented.

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B. Analysis

The purpose of attorney discipline "is not punishment, but rather to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Edmonds, 2014 IL 117696, par. 90. In determining the appropriate sanction, we must consider the nature and seriousness of the misconduct, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000); Gorecki, 208 Ill. 2d at 361. Although each disciplinary case must be decided on its own unique facts, the Supreme Court strives for "consistency and predictability in the imposition of sanctions. In re Cutright, 233 Ill. 2d 474, 491; 910 N.E.2d 581 (2009); In re Mulroe, 2011 IL 111378, par. 25.

The Administrator recommended that the Respondent be disbarred. (Tr. 164). The Respondent did not address a sanction in his closing argument.

The misconduct committed by the Respondent was egregious in nature. He failed to protect funds he was holding in trust for the benefit of others. Instead of holding those funds, $32,083.67, in his trust account, Respondent deliberately took and used, converted, the funds for his own purposes. (Count I). The Supreme Court has often pointed out the seriousness of an attorney converting client or third party funds for example, in In re Feldman, 89 Ill. 2d 7, 10, 431 N.E.2d 388 (1982), the Court stated that "the wrongful conversion of funds is an act involving moral turpitude, and, in the absence of mitigating circumstances, such conversion is a gross violation of the attorney's oath, calling for the attorney's disbarment." See also In re Rotman,

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136 Ill. 2d 401, 423, 556 N.E.2d 243 (1990); In In re Polito, 132 Ill. 2d 294, 301, 547 N.E.2d 465 (1989).

In addition, Respondent's misconduct included dishonesty and deceit. He acted with dishonesty by taking and using funds he was holding in trust while knowing he had no authority to do so. (Count I). He acted with dishonesty and deceit by failing to inform a lien holder that he had received settlement funds. (Count I). He knowingly testified falsely at a deposition. (Count II). During the disciplinary investigation, Respondent deliberately made false statements to his client in order to create false documents, 19 receipts; he submitted the 19 false receipts to the ARDC with the intent to deceive; and he testified falsely in a sworn statement to the ARDC. (Count III). The Supreme Court has stated that "honesty is an important factor in assessing a person's moral character" (In re Glenville, 139 Ill. 2d 242, 255-56, 565 N.E.2d 623 (1990)), and "any act which evidences a want of personal honesty or integrity may be sufficient to warrant disbarment" (In re Vavrik, 117 Ill. 2d 408, 413, 507 N.E.2d 1226 (1987); In re March, 71 Ill. 2d 382, 391, 376 N.E.2d 213 (1978)). The Supreme Court has also described an attorney's giving of a "false written response to the Administrator" and then repeating the false response in a "sworn statement to the Administrator" as conduct demonstrating an "unfitness of an attorney to practice law." In re Bell, 147 Ill. 2d 15, 39, 588 N.E.2d 1093 (1992).

The Respondent's misconduct also included the failure to act diligently or promptly on behalf of two clients. (Counts V and VI). The Supreme Court has explained that "unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness," and that a lawyer's "claim that his clients did not suffer from his misconduct ignores the anguish that his inaction necessarily inflicted upon his clients." In re Smith, 168 Ill. 2d 269, 283, 285, 659 N.E.2d 896 (1995). The Court has also stated that "[u]nethical conduct,

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especially in attorneys' relationships with clients, must not and will not be taken lightly by the profession or by this court." In re Gerard, 132 Ill. 2d 507, 541, 548 N.E.2d 1051 (1989).

There is substantial aggravation in this case. The Respondent's misconduct did not involve a single lapse of sound judgment, but rather involved numerous acts of conversion, dishonesty and neglect over a period of years. Thus, Respondent "exhibited a pattern of gross misconduct." In re Lewis, 138 Ill. 2d 310, 342, 562 N.E.2d 198 (1990).

Respondent's acts of misconduct were for his own self-serving purposes. See In re Rinella, 175 Ill. 2d 504, 518, 677 N.E.2d 909 (1997). He deliberately and improperly used funds from his trust account for his own financial gain. His subsequent acts of dishonesty and deceit were intended to hide his misconduct and protect himself.

By wrongfully taking the settlement funds, Respondent placed his client, Mark Breeden, at financial risk for not repaying the litigation loan he obtained from LawCash. Also, Respondent financially harmed LawCash by preventing LawCash from receiving any repayment for the loan to Breeden. The attorney who represented LawCash in a lawsuit against Respondent and Breeden testified that the lawsuit was voluntarily dismissed and LawCash did not collect any money because no money was available to recover.

The Supreme Court has stated that discipline should be "closely linked to the harm caused or the unreasonable risked created by the [attorney's] lack of care." In re Saladino, 71 Ill. 2d 263, 276, 375 N.E.2d 102 (1978). In In re Wisniewski, 2010PR0008, M.R. 24166 (Jan. 9, 2011), the Hearing Board considered in aggravation that the respondent "caused financial harm to his clients and third parties by converting nearly $35,000." (Hearing Bd. at 8).

In regard to one of the cases he neglected, the client, Ms. Cawvey, asked another attorney, Mr. Calvo, to contact Respondent about her case. Calvo sent a letter to Respondent on

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November 5, 2014, stating that Cawvey requested him to contact Respondent about the representation of her, and requesting Respondent to forward Cawvey's file to Calvo. However, Calvo did not receive any response from Respondent.

Respondent has shown no remorse and has failed to recognize his numerous unethical acts. The only mistake he admitted was for "not keeping the records better on Breeden." (Tr. 38). In In re McCaffery, 2010PR00153, M.R. 27200 (May 14, 2015), the respondent's failure to display any remorse or recognition of his misconduct was found to be "an aggravating factor because it creates serious doubts as to Respondent's ability or willingness to conform his future conduct to ethical norms." (Hearing Bd. at 105).

Respondent made no restitution. The Supreme Court has stated that the failure of an attorney to make restitution "does not enhance the confidence which the public or [the Supreme Court] place in the attorney." In re Fox, 122 Ill. 2d 402, 410, 522 N.E.2d 1229 (1988). See also; In re Houdek, 113 Ill. 2d 323, 327, 467 N.E.2d 1169 (1986).

There is evidence of numerous Federal and Illinois tax liens filed against Respondent from 2005 through 2014, and two memorandums of judgment filed against Respondent in 2010 for the amounts of $32,970.08 and $7,077.00, respectively. Thus, it is clear that Respondent was having financial difficulties during the period of time he was converting the funds from his trust account. An attorney's precarious financial situation at the time he or she converts funds is an aggravating factor. In In re Meriwether, 138 Ill. 2d 191, 199-200, 561 N.E.2d 662 (1990), the Court pointed out that conversion and commingling "present a substantial risk of harm to the client, especially if committed at a time when the attorney is experiencing severe financial difficulties." See also In re Uhler, 126 Ill. 2d 532, 540, 535 N.E.2d 825 (1989).

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The failure of Respondent to fully cooperate with the ARDC is another factor in aggravation. See Smith, 168 Ill. 2d at 296. Respondent did not cooperate when, in December 2010, he sent a letter to an ARDC regarding the investigation, stating falsely "I have held the sum of $37,019.62 in the above referenced [trust] account pending resolution of the outstanding Medicare lien, which is paramount." (Resp. Ex. 12 at 2). Respondent knew or should have known that the balance in his trust account had been less than $37,000 for more than year.

Respondent attempted to shift blame to his client. Respondent claimed that Breeden demanded to be paid in cash and Respondent complied with Breeden's requests. By making such a claim, which we found to be false, Respondent demonstrated that he does not understand ethical requirements. The Respondent admitted he was holding the $32,115.34 in trust in order that a lien holder, LawCash, would be paid. Thus, even if Breeden had requested those funds, Respondent knew Breeden was not entitled to them until the lien was satisfied. Also Rule 1.15(a) (1) requires an attorney to prepare and maintain "a record of all withdrawals from client trust accounts specifically identifying the date, source, and description of each item deposited, and the date, payee and purpose of each disbursement." Thus, even if the funds at issue belonged to Breeden, and Breeden had requested Respondent to disburse the funds from the trust account in cash with no record being made of the transactions, Respondent should have known he would violate Rule 1.15(a) by complying with such a request. The Supreme Court has made it clear that a "lawyer may not chose to circumvent the rules by simply asserting that his client asked him to do so." In re Himmel, 125 Ill. 2d 531, 539, 533 N.E.2d 790 (1989).

Further, and particularly egregious, the Respondent testified untruthfully at his disciplinary hearing. For example, he falsely testified that he notified the lien holder, LawCash, of the settlement in Breeden's case; that a claimant named Cambridge Management Group in an

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arbitration matter was LawCash; that the arbitration decision in that Cambridge matter pertained to LawCash and allowed him to disburse the funds being held for LawCash; that Breeden demanded and received numerous cash payments by Respondent from the trust account; and that the 19 receipts Respondent prepared showed the actual amounts paid in cash to Breeden. The Supreme Court has stated that a "lack of candor before the Hearing Board is a factor that may be considered in aggravation" (Gorecki, 208 Ill. 2d at 366), and that "[a]lthough an attorney can be tried only on the charges filed against him, the giving of false testimony demonstrates a further unfitness of an attorney to practice law" In re Stillo, 68 Ill. 2d 49, 55, 368 N.E.2d 897 (1977).

The only mitigation in this matter is that Respondent has not been previously disciplined. However, this mitigation is far outweighed by the egregious nature of Respondent's misconduct and the aggravating factors. See Lewis, 138 Ill. 2d at 346); Feldman, 89 Ill 2d at 13.

In determining the appropriate sanction, we found the following cases instructive.

In Feldman, 89 Ill. 2d at 9-10, 13-14, the respondent converted funds from a probate estate. He then converted about $29,000 from a second estate to repay and close the first estate. To obtain the funds from the second estate, he forged a client's name on checks. The Court pointed out that the attorney's misconduct was "a pattern of behavior which clearly tends to bring the legal profession into disrepute." When the client discovered what had occurred, respondent admitted the wrongdoing, obtained a loan, and made full restitution. The respondent had been a sole practitioner for 32 years with no prior misconduct, and he presented witnesses who "attested to his good character and trustworthiness." Even though there was more mitigation in Feldman than in the case before us, i.e. full restitution and favorable character testimony, the Supreme Court ordered the attorney disbarred.

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In Rotman, 136 Ill. 2d at 418-23, the attorney, who had been practicing law for less than two years, converted about $15,000 from an estate to pay his own debts. He admitted the conversion and made restitution after the disciplinary investigation was initiated. The attorney's contention that there were mitigating circumstances was rejected by the Court. For example, the Court stated that "inexperience in the practice of law is no excuse for the intentional conversion of a client's money" and rejected the attorney's self-serving, uncorroborated testimony about volunteer work in the community. Finally, the Court did not find the attorney's payment of restitution to be mitigating, pointing out "restitution came only after an investigation was initiated by the Commission and was not complete until 20 months after Respondent first converted the funds." The respondent was disbarred.

In In re Huebner, 2011PR00129, M.R. 26649 (May 16, 2014), the respondent received $100,000 to hold in escrow relating to a real estate transaction. He then took the funds without authority and used them for his own purposes. After he had used a portion of the funds, he falsely told one of the parties to the real estate transaction "rest assured that your money is safe" and that he "was holding the funds and would only pay them out pursuant to the appropriate agreements." In mitigation, respondent had no prior discipline. In aggravation, the respondent caused financial harm; he was experiencing financial difficulties; he failed to pay any restitution; and his expression of remorse was found "unconvincing." It was specifically noted that the respondent did not present any character testimony or evidence of charitable or bar activities. (Hearing Bd. at 19-21; Review Bd. at 10-11). The respondent was disbarred.

In In re Harris, 97 SH 88, M.R. 16300 (Jan. 24, 2000), the respondent converted client settlement funds in eight personal injury matters. The conversions occurred during a one-year period and the total amount converted was about $28,000. He also made a false statement to a

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lien holder. He admitted "much of the misconduct," including "several instances of conversion." The respondent had practiced law for about 14 years without being previously disciplined and there was testimony that he had a good reputation for honesty and integrity. (Hearing Bd. at 69-70; Review Bd. at 2-3, 13). The Supreme Court ordered the respondent disbarred.

In In re Ess, 04 SH 145, M.R. 20675 (Mar. 20, 2006), the respondent converted funds, totaling about $21,000, of four clients. He initially failed to cooperate in his disciplinary matter and failed to file an answer to the complaint. However, he ultimately appeared and testified at the hearing. The respondent sought to blame his ex-wife, who had been his office secretary and bookkeeper, for the commingling and conversion. However, the Hearing Panel found that his attempt to shift culpability to his ex-wife "was inherently incredible and unbelievable." Some restitution had been made, but the Hearing Panel found that the restitution did not have substantial weight in mitigation because it was "made only after his clients raised questions about his handling of their money." Respondent had been licensed for about 10 years without previous misconduct. However, the Hearing Panel found that the "absence of prior discipline does not sufficiently mitigate his overall misconduct to warrant a suspension, rather than disbarment." (Hearing Bd. at 13-18, 24-26, 28). The respondent was disbarred.

After considering the nature of the Respondent's misconduct, the substantial aggravation, the recommendation of the Administrator, and the cases discussed above, we conclude that the sanction of disbarment is necessary to protect the public, maintain the integrity of the legal profession, safeguard the administration of justice, and serve as a deterrent.

Therefore, we recommend that the Respondent, William James Meacham, be disbarred.

Respectfully Submitted,

Sonni Choi Williams
Robert M. Owen
Ludger Schilling

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CERTIFICATION

I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on February 9, 2017.

Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois