Filed October 18, 2017

In re Ronald Lee Boorstein
Respondent-Appellee

Commission No. 2016PR00047

Synopsis of Review Board Report and Recommendation
(October 2017)

During the course of representing his clients in a mechanic's-lien action, Respondent directed the creation of a fictitious corporation and drafted a letter containing false statements and attached it to a motion to dismiss that was based, in part, upon the letter. About a year later, while the mechanic's-lien action was still pending, Respondent directed the creation of another fictitious corporation and had his employees sign and notarize two fraudulent releases of the mechanic's lien in order to help his clients get bank financing.

Based upon these actions, the Administrator charged Respondent in a four-count complaint with, among other things, knowingly making a false statement of fact or law to a tribunal, knowingly making a false statement of material fact or law to a third person, knowingly ordering a non-lawyer to commit misconduct, and engaging in dishonesty, in violation of 2010 Illinois Rules of Professional Conduct 3.3(a), 4.1(a), 5.3(c), and 8.4(c), respectively.

After a hearing at which Respondent was represented by counsel, the Hearing Board found that Respondent had committed most of the charged misconduct and recommended that he be suspended for 30 days. The Administrator filed exceptions, challenging the sanction recommendation and arguing that Respondent should be suspended for 90 days.

The Review Board found that the 30-day suspension recommended by the Hearing Board was not commensurate with the seriousness of Respondent's misconduct or consistent with relevant authority, but that the 90-day suspension requested by the Administrator did not give enough weight to the substantial mitigation in the matter. It recommended that Respondent be suspended for 60 days.

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

In the Matter of:

RONALD LEE BOORSTEIN,

Respondent-Appellee,

No. 253332.

Commission No. 2016PR00047

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

SUMMARY

During the course of representing his clients in a mechanic's-lien action, Respondent directed the creation of a fictitious corporation and drafted a letter containing false statements and attached it to a motion to dismiss that was based, in part, upon the letter. About a year later, while the mechanic's-lien action was still pending, Respondent directed the creation of another fictitious corporation and had his employees sign and notarize two fraudulent releases of the mechanic's lien in order to help his clients get bank financing.

Based upon these actions, the Administrator charged Respondent in a four-count complaint with, among other things, knowingly making a false statement of fact or law to a tribunal, knowingly making a false statement of material fact or law to a third person, knowingly ordering a non-lawyer to commit misconduct, and engaging in dishonesty, in violation of 2010 Illinois Rules of Professional Conduct 3.3(a), 4.1(a), 5.3(c), and 8.4(c), respectively. After a hearing at which Respondent was represented by counsel, the Hearing Board found that Respondent had committed most of the charged misconduct and recommended that he be suspended for 30 days.

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The Administrator filed exceptions, challenging only the sanction recommendation, and arguing that Respondent should be suspended for 90 days.

For the reasons that follow, we recommend that Respondent be suspended for 60 days for his misconduct.

FACTS

Respondent

Respondent was admitted to practice in Illinois in 1960. Since the late 1990s, he has worked as a solo practitioner. He concentrated in transactional law for most of his career, but in the past five years, has begun to focus on commercial litigation. He also has started and run businesses, and testified that half or more of his time is devoted to his business activities. He has no prior discipline.

Respondent's Misconduct

In July 2011, Respondent began representing David and Jody Bilstrom in a mechanic's-lien action that was filed against them in 2006 by Artisan Design Build, LLC, a Wisconsin limited liability company. Respondent took over the case after the Bilstroms' prior counsel withdrew. Respondent believed that he would not have difficulty resolving the matter, because it was his opinion that the mechanic's lien was invalid.

In the initial complaint, as well as in an amended complaint filed in 2008, the plaintiff was incorrectly named "Artisan Design Build, Inc." Soon after filing his appearance in the matter, Respondent prepared articles of incorporation for an Illinois entity named "Artisan Design Build, Inc." - the exact name of the plaintiff as captioned in the complaint and amended complaint. Respondent designated his employee, Steven Schwartz, as the registered agent for Artisan Design Build, Inc. He listed the company's registered business address as 2101 St. John's Avenue in Highland Park, Illinois, which was Mr. Schwartz's home address at the time.

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At Respondent's direction, Mr. Schwartz signed the Articles of Incorporation and filed them with the Illinois Secretary of State. Respondent paid the filing fee. Respondent admitted in his answer to the disciplinary complaint against him that Artisan Design Build, Inc. never undertook any work or transacted any business in Illinois or anywhere else.

On or about July 26, 2011, Respondent drafted a letter to himself purportedly from Mr. Schwartz as the sole shareholder of Artisan Design Build, Inc. Respondent directed his secretary to type the letter and Mr. Schwartz to sign it. The letter stated, among other things, that Mr. Schwartz knew nothing about the lawsuit involving a corporation with the name Artisan Design Build, Inc.; was concerned that the pending lawsuit could have a negative impact on his corporation; and wanted the lawsuit terminated. Respondent admitted at his disciplinary hearing that these statements purportedly by Mr. Schwartz were false, in that Mr. Schwartz knew all about the lawsuit because he was working for Respondent, and was not concerned about the effect of the lawsuit on his corporation.

About nine days after drafting the letter, Respondent drafted and filed a motion to dismiss the complaint against the Bilstroms. In the motion, he argued that the only corporation with the name "Artisan Design Build, Inc." that has ever been qualified to do business in Illinois was the corporation for which articles of incorporation were filed in July 2011. He attached the July 26 letter signed by Mr. Schwartz and claimed that it was from the individual who filed those articles of incorporation and who is its sole shareholder. He further argued that the plaintiff in the lawsuit had not obtained authority to conduct business in Illinois, never existed in Illinois, and had not paid a franchise tax or license fee, and that its authority to conduct business in Illinois had been revoked, so that it could not maintain a civil action in an Illinois court.

At his disciplinary hearing, Respondent admitted that he did not inform the court that Mr. Schwartz was his employee and had formed the corporation at Respondent's direction.

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He testified that he believed Artisan Design Build, LLC's original lien was invalid, and that the company was being sneaky in creating a lien under a different name and foreclosing on that lien, and he wanted the court to understand that that was something that should not be done. He acknowledged that he should have made his points in a straightforward manner rather than by drafting and attaching the letter. He testified that his intent in preparing and attaching the letter was to make sure that Artisan Design Build, LLC could not proceed under the name Artisan Design Build, Inc., and that his goal was to have the plaintiff proceed as Artisan Design Build, LLC. He denied that he was trying to deceive anyone with the letter.

On November 29, 2011, the court granted Artisan Design Build, LLC leave to file a second amended complaint to correct its captioned name, and denied as moot Respondent's motion to dismiss.

In August 2012, while the mechanic's-lien lawsuit was still pending, the Bilstroms sought to get a mortgage from a bank. The bank was concerned about the litigation and wanted to make sure that the mechanic's lien did not exist. Respondent provided a title report that did not show the lien and offered to provide his professional opinion that the lien was invalid, but that was not sufficient to assuage the bank's concern about the litigation. According to Respondent, the bank wanted "external documentation."

Respondent thus drafted a "Release of Mechanic's Lien" using the same lien number as the one that Artisan Design Build, LLC had recorded in 2006. The purported release listed the lienholder's name as "Artisan Design Build, Inc." and stated that Artisan Design Build, Inc. released the claim for lien against the Bilstroms and authorized the DuPage County Recorder of Deeds to enter satisfaction and release of the lien.

Respondent directed his employee Mr. Schwartz, as registered agent for Artisan Design Build, Inc., to sign the release, and directed his secretary to notarize it. Respondent or

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someone acting at his direction presented the purported release to the DuPage County Recorder of Deeds and caused it to be recorded. Respondent paid the filing fee.

At his hearing, Respondent admitted he knew that Artisan Design Build, Inc. did not file a lien; that, at no time on or after the date the lien was filed, had the mechanic's lien been satisfied or released; that, at no time did he have the authority of Artisan Design Build, LLC to release the mechanic's lien; and that Mr. Schwartz did not have authority to release the lien.

A few weeks after filing the purported release, Respondent realized the release referred to "Artisan Design Build, Inc." instead of "Artisan Design Build, LLC," so he drafted a second release for the same lien number, but under the name of "Artisan Design Build, LLC." Respondent directed Mr. Schwartz to sign, and his secretary to notarize, the second release. He presented the second release to the DuPage County Recorder of Deeds and caused the release to be recorded. He paid the filing fee.

Respondent admitted that Artisan Design Build, LLC did not satisfy or release the mechanic's lien; that he knew that Mr. Schwartz was not authorized to release the lien; that Artisan Design Build, LLC did not authorize him to release the lien; and that he had no rights in the Artisan Design Build, LLC name.

In September 2012, Respondent or someone acting at his direction filed an application to cancel the assumed corporate name of Artisan Design Build, Inc. At Respondent's direction, Mr. Schwartz signed the application as the company's president. On the same day, to comport with the information in the second purported release, Respondent drafted and caused to be filed with the Illinois Secretary of State articles of incorporation for an entity named "Artisan Design Build, LLC," with the same registered business address as Artisan Design Build, Inc. - Mr. Schwartz's home address. Respondent directed Mr. Schwartz to sign the articles of incorporation for Artisan Design Build, LLC as its manager. Respondent paid the filing fee.

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Respondent admitted that Artisan Design Build, LLC, the Illinois company that he organized, never transacted business in Illinois, and that neither he nor Mr. Schwartz transacted business on behalf of Artisan Design Build, LLC in Illinois.

At his hearing, Respondent testified that he created the purported releases because the bank wanted outside documentation. He testified that he knew the liens "were gone" and "invalid to begin with." He testified that he did not think he was doing anything wrong because he "was filing a release of something that didn't exist," so "wasn't releasing anything." He testified that he had planned to use the releases, but did not use them outside of recording them.

HEARING BOARD'S FINDINGS AND RECOMMENDATION

The Hearing Board found that Respondent had committed most of the misconduct with which he was charged. With respect to the July 2011 letter that Respondent drafted to himself from Mr. Schwartz, the Hearing Board found that Respondent "purposely orchestrated a false situation and then presented that situation to the Court through the letter signed by Schwartz;" that his actions "were not done innocently or inadvertently, but were done with full knowledge of the illusion he was creating;" and that "he used the letter to further his client's position in pending litigation." (Hearing Bd. Report at 9-10.) The Hearing Board thus found that Respondent had knowingly made a false statement to a tribunal in violation of Rule 3.3(a), and engaged in dishonesty in violation of Rule 8.4(c). However, because there was no evidence that the court had relied on the letter or was persuaded by the false statements, it found that Respondent had not engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).

The Hearing Board further found that Respondent's actions in creating the false mechanic's-lien releases and causing them to be filed were "purposeful and blatantly deceitful." (Id. at 18.) It found that, by recording the false releases, he represented to the Recorder of Deeds

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that Mr. Schwartz had the authority to release the lien and that the lien was satisfied and released. It thus found that Respondent knowingly made a false statement of material fact to a third person in violation of Rule 4.1(a) and engaged in dishonesty in violation of Rule 8.4(c). It also found that, by directing Mr. Schwartz to sign the false releases and directing his secretary to notarize the false releases, Respondent knowingly ordered non-lawyers to commit misconduct, in violation of Rule 5.3(c).

Finding significant mitigation but also some aggravation, the Hearing Board recommended that Respondent be suspended for 30 days.

ANALYSIS AND RECOMMENDATION

On appeal, the Administrator argues that the 30-day suspension recommended by the Hearing Board does not accurately reflect the seriousness or totality of Respondent's misconduct, and does not comport with applicable case law. He urges us to recommend, instead, a suspension of 90 days.

We agree that a 30-day suspension is not sufficiently in line with applicable case law or commensurate with the seriousness of the misconduct, but we also believe that a 90-day suspension does not give enough weight to the substantial mitigation shown. Rather, we believe that a 60-day suspension is consistent with precedent and comports with the purposes of discipline, including the need for deterrence.

The Hearing Board's sanction recommendation is advisory. In re Ingersoll, 186 Ill. 2d 163, 178, 710 N.E.2d 390 (1999). In making our own recommendation, we consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence, In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003), while keeping in mind that the purpose of discipline is not to punish the attorney but rather to protect the public, maintain the integrity of the legal profession, and protect the administration of

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justice from reproach. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). We also consider the deterrent value of attorney discipline and "the need to impress upon others the significant repercussions of errors such as those committed by" Respondent. In re Discipio, 163 Ill.2d 515, 528, 645 N.E.2d 906 (1994) (citing In re Imming, 131 Ill.2d 239, 261, 545 N.E.2d 715 (1989)). Finally, we seek to recommend a sanction that is consistent with sanctions imposed in similar cases. Timpone, 157 Ill. 2d at 197.

The Administrator contends that the two cases relied upon by the Hearing Board in support of its recommendation, In re Fiandaca and In re Pigato (discussed below), are distinguishable from this case because they involve less egregious misconduct. He cites, instead, a variety of cases (In re Jacobs, In re McLaughlin, In re Grosky, and In re Heilgeist, also discussed below, among others) in which the Court imposed suspensions of 60 or 90 days on respondents who created false documents and submitted them to tribunals. He argues that the misconduct in those cases is much closer to Respondent's misconduct than the cases cited by the Hearing Board. This matter appears to fall somewhere between the cases cited by the Hearing Board and the cases cited by the Administrator.

The Hearing Board's cases imposing 30-day suspensions involve less egregious misconduct than this matter. In In re Fiandaca, 2010PR00006, petition to impose discipline on consent allowed, M.R. 24563 (May 18, 2011), the respondent notarized the purported signature of his client's wife on an affidavit, even though he did not witness her signature and took no steps to determine whether she actually signed it. He later filed it with the court. In fact, the wife had not signed the affidavit. The petition for discipline on consent stated that the respondent had no actual knowledge that the signature was false and had relied on the statements of another with whom he had a long-standing personal and professional relationship.

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Similarly, in In re Pigato, 2012PR00034, petition for discipline on consent allowed, M.R. 25672 (Jan. 18, 2013), the respondent signed a will as a purported witness, and directed his secretary to do the same, even though the will had not yet been signed by the testator. He later filed the falsely witnessed will with the probate court. He also improperly notarized a trust without having witnessed a party's signature. The petition for discipline on consent stated that the respondent was attempting to achieve a client's objective and accommodate a client with whom he had a long-standing relationship.

The scope and pattern of dishonesty in this matter distinguish it from Fiandaca and Pigato. In both of those cases, the crux of the attorneys' misconduct was that they misrepresented that they had witnessed signatures that they had not actually witnessed, without knowing that their clients would later forge signatures on the documents. Those single instances of poor judgment differ considerably from the deliberate, premeditated, elaborate, and multiple misrepresentations that Respondent made by creating false evidence and submitting it to the court, and creating false releases and filing them with the Du Page County Recorder of Deeds.

The Administrator's cases, which entail the creation of false documents, are similar in circumstance to this matter. In In re Jacobs, 2013PR00064, petition to impose discipline on consent allowed, M.R. 26759 (Sept. 12, 2014), the respondent was suspended for 60 days for creating a false letter and affidavit and attaching them to a motion that she filed with the court. She did so to cover up a mistake she had made. After learning that her secretary had reported her conduct to the ARDC, the respondent withdrew her motion before the court ruled on it. Her client was not harmed by her actions.

In In re McLaughlin, 2012PR00053 (Hearing Bd., May 14, 2013), approved and confirmed, M.R. 26136 (Sept. 25, 2013, the respondent was suspended for 90 days for redacting a date on a letter and attaching the falsified letter to a motion that he filed with the court. In

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making its recommendation, the Hearing Board noted that the respondent had drafted and deliberately filed with the court a pleading that he knew contained an exhibit that he had altered, and that his purpose was to mislead the court on a material fact in order to obtain a favorable ruling on his motion. It also found that his misconduct was not a "single, quick and unreasoned failure of judgment, but rather was a deliberate course of conduct." Id. at 21 (citing In re Thebeau, 111 Ill. 2d 251, 489 N.E.2d 877 (1986)). It further found that he acted, in part, with a self-serving motive, in that he wanted to cover up a mistake that he had made.

In In re Grosky, 96 CH 624 (Review Bd., May 13, 1998), petition for leave to file exceptions denied, M.R. 15043 (Sept. 28, 1998), the respondent was suspended for three months for creating a false letter and sending it to his opposing counsel in an attempt to avoid paying court reporter fees that opposing counsel was seeking.

Finally, in In re Heilgeist, 103 Ill. 2d 453, 469 N.E.2d 1109 (1984), the Court suspended the respondent for three months for creating false evidence and filing it with the court as part of answers to interrogatories. In reaching its sanction, the Court noted that the respondent's clients were not harmed, and that the respondent was not motivated by personal gain. It also noted mitigating factors, including that the respondent had an unblemished record after 28 years of practice.

In terms of misconduct, the foregoing cases are more analogous to this matter than the cases cited by either Respondent or the Hearing Board. Respondent deliberately created false evidence and submitted it to the court, as well as created false documents and filed them with the Du Page County Recorder of Deeds. While he did not act purely out of self-interest, and caused no harm to his clients, his misconduct is otherwise at least as serious as, if not more serious than, the misconduct in the foregoing cases, based on the number of false documents he created and the complex and premeditated nature of his plan.

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The mitigation here, however, is more extensive than in the cases cited by the Administrator, especially the fact that Respondent has practiced for 56 years with no prior misconduct. In addition, Respondent cooperated in his proceedings, expressed regret for his actions, acknowledged using poor judgment, did not harm his clients, presented multiple witnesses who attested to his character and integrity, and provided evidence of community activities and good works.

The Hearing Board also found that, around the time of his misconduct, Respondent was devoting much of his time and attention to caring for his wife of over 50 years, who had suffered a debilitating stroke in 2009 and died in 2012. The Hearing Board noted that, while it found no direct link between Respondent's caring for his wife and his misconduct, it recognized that emotional turmoil and anxiety are distractions that can interfere with an attorney's focus and attention to his obligations. We agree, and consider the personal difficulties that Respondent was experiencing during the time of his misconduct to be mitigating.

The Hearing Board found, and we agree, that, given the "number and strength of the mitigating circumstances, . . . along with the insight Respondent has demonstrated in these proceedings," (Hearing Bd. Report at 27), Respondent does not pose a future risk to the public.

Respondent's misconduct is aggravated by the fact that it was not an isolated lapse of judgment but rather was a pattern of wrongdoing that involved his preparation of several false documents over the course of more than a year.

Even considering the significant mitigation in this matter, however, we do not believe that a 30-day suspension comports with the purposes of attorney discipline, one aspect of which is to deter other attorneys from committing similar misconduct. The Hearing Board found it mitigating that Respondent was not acting for personal gain but only to help his clients. It is not uncommon, in the heat of battle, for a lawyer to believe the other side is dishonest or

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completely wrong, and all lawyers want to win their clients' cases. But that does not justify engaging in misconduct to do so. We would venture that many lawyers, at some point in their careers, face temptation to engage in untoward and unethical acts to achieve their clients' goals. Only each lawyer's own moral compass and, more relevant to our analysis here, the Rules of Professional Responsibility keep the lawyer from crossing the line between zealous advocacy and unethical behavior.

Here, Respondent crossed far beyond that line. We believe a 30-day suspension denigrates the seriousness of his choice to engage in unethical behavior in order to achieve his clients' aims, and would inadequately deter other attorneys from engaging in similar misconduct. Were it not for the substantial mitigation present here, we would recommend a longer suspension than we do.

But, taking into account the substantial mitigation and some aggravation, we find that a suspension of 60 days is commensurate with Respondent's misconduct, falls within the range of discipline that has been imposed for comparable misconduct, and is sufficient to serve the goals of attorney discipline.

CONCLUSION

For the foregoing reasons, we recommend that Respondent be suspended for 60 days.

Respectfully Submitted,

Richard A. Green
Robert M. Henderson
Jill W. Landsberg

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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 Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on October 18, 2017.

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