Simple Negligence Becomes Deception = Discipline

Filed March 25:

This is a decision of the ARDC Review Board recommending a 30 day suspension for a lawyer who unfortunately neglected a case he filed in DuPage county and then, when the case was dismissed for want of prosecution, failed to have the case reinstated and then created a phony paper trial which implied that he had settled the case.

The summary of the events is set forth here:

Respondent testified that he may have talked to Toscas in 2007 and must have talked to her in 2008. He did not tell her the lawsuit had been dismissed and agreed he fraudulently led her to believe it was still pending. In 2009, Toscas or her husband telephoned Respondent to inquire about the status of the case because Toscas had been receiving many calls and notices from medical providers seeking payment of the outstanding bills arising out of the care Toscas received following the accident. Respondent did not tell Toscas that the case had been dismissed but stated he would try to negotiate the “liens, with the medical providers. He was able to negotiate a reduction in the bills of two out of three of the medical providers. Respondent then falsely told Toscas he had received an offer to settle the claims against Williams for $25,200. After Toscas accepted this “offer”, Respondent drafted a document entitled “Release” purporting to release Williams and her insurance company and he instructed Toscas to sign it. He also drafted a phony settlement statement and gave it to Toscas. He then gave her a check for $14,491.47 drawn on his client fund account, representing Tosca’s share of the phony settlement proceeds. Respondent also paid two of the lienholders from his own funds after negotiating a reduction in the amounts Toscas owed to them. He told Toscas he was “waiving” his fees and costs because it took so long to obtain a settlement.

One medical provider with an outstanding bill of $6,791.00 was not paid at this time. The phony settlement statement indicated that Respondent was withholding $6791.00 for that medical provider’s benefit. Respondent testified he deliberately delayed paying the doctor in an attempt to negotiate the amount. He testified he then forgot about the matter again. In 2012, Toscas accused Respondent of converting the amount “withheld” as this doctor had not been paid by Respondent and was seeking payment from Toscas. Respondent then paid the doctor, but did not tell the client what had occurred. In fact, Respondent never told Toscas that her lawsuit had been dismissed. The client reported the matter to the ARDC. Toscas then learned what had occurred.
The Hearing Board found that Respondent violated Rules 1.3(a)(1990), 3.2 (1990), and 1.3(a)(2010) by neglecting the lawsuit he filed on behalf of Toscas, by failing to reinstate that lawsuit and by failing to resolve the outstanding medical bill after telling Toscas he would do so. The Hearing Board found that Respondent violated Rules 1.4(a)(1990) and (2010) and 1.4(b)(1990) and (2010) by never informing Toscas that her case was time-barred and by failing to adequately communicate with her. Finally, the Hearing Board concluded that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rules 8.4(a)(4)(1990) and 8.4(c)(2010) by intentionally misrepresenting the status of the case, by purposefully concealing his neglect, by fabricating a settlement and concocting phony settlement documents, by falsely representing he was waiving his fee, and by representing he would pay the doctor and then attempting to limit his liability by delaying the payment to the doctor.
The Review Board upheld the Hearing Board’s recommendation of a 30 day suspension. 
Edward X. Clinton, Jr.

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