ARDC Hearing Board Recommends 90 day suspension for Lawyer who concealed eviction lawsuit from subtenants

This was a decision of the ARDC Hearing Board, which recommended a 90-day suspension for an attorney who concealed an eviction lawsuit from his subtenants.

To understand the case, you have to understand how law offices in Chicago sometimes are set up as a shared law office. One lawyer will sign a lease for the premises and then will sub-lease individual offices to other attorneys. The practice can reduce costs and can create a collegial environment.

In this case the shared office arrangement somehow went awry. The lead tenant, Scott Kamin, allegedly fell behind on the rent and then was sued for eviction. He was disciplined for representing to the Sheriff that he had authority to accept service of process for his sub-tenants. Because Kamin took service of process himself, they were unaware of the eviction lawsuit.

The factual allegations:

On November 5, 2015, attorney Allen B. Glass filed an eviction lawsuit on behalf of 55 E. Jackson LLC against Law Offices of Scott T. Kamin, LLC, Scott T. Kamin, Law Office of Phillip Brigham LLC, Law Office of Jason R. Epstein, The Law Office of Erik Rakoczy LLC and Unknown Occupants. (Tr. 65; Adm. Ex. 5). Glass testified that as part of filing the lawsuit he determined who was in actual possession of the space because those entities had to be named for possession purposes. Consequently, the entities he identified as subtenants were named as defendants in addition to Respondent. (Tr. 64). Glass prepared the service list for the summonses. Some of the people on the service list were registered agents. (Tr. 66).
On November 6, 2015, Cook County Sheriff’s Deputy Tony R. Lampkin served summonses at 55 East Jackson upon Phillip Brigham, Law Offices of Scott Kamin, Scott Kamin, Law Offices of Erik Rakoczy, Law Offices of Jason Epstein and unknown occupants. (Tr. 85). Deputy Lampkin spoke to Respondent in his office. He asked if Respondent was one of the persons on the service list and whether he was authorized to accept service for the others on the list. Respondent said he was authorized to accept service. Based on Respondent’s representation, Lampkin marked on the affidavits of service that he left copies of the summons and complaint with authorized persons. (Tr. 86; Adm. Ex. 5). Deputy Lampkin’s practice is to use the phrase, “Are you authorized to accept for” another person. He completed the affidavits of service on the day he served the summonses. (Tr. 87).
Respondent acknowledged accepting service of the complaint and summonses from Deputy Lampkin. He did not seek authority from his subtenants to accept service on their behalf. (Tr. 133). The subleases did not address how to handle service of process. Respondent testified as follows regarding his thoughts at the time he accepted service:
At first, I didn’t know it was a lawsuit. Then I knew it was a lawsuit. As I was accepting service, I knew it was a lawsuit. I looked at what it was regarding and realized what was happening and realized the severity of it. But I still-to this day, I just don’t see why-what was the problem accepting service. Nothing in the contract said we’re not going to accept service.
(Tr. 149-150). Respondent thinks he put the complaint and summonses in his desk drawer after he received them from Deputy Lampkin. The subtenants were not in the office at the time of service. Respondent acknowledged he did not tell any of the subtenants he had accepted service for them. (Tr. 135).

The finding of misconduct:

The Administrator alleges Respondent acted dishonestly by stating to Deputy Lampkin he was authorized to accept service on behalf of the subtenants when he was not so authorized, failing to inform the court he did not have authority to accept service or appear on behalf of the subtenants, and concealing the eviction lawsuit from the subtenants. Respondent acknowledges he committed misconduct, but he denies it was intentional.
Rule 8.4(c) (formerly Rule 8.4(a)(4)) “is broadly construed to include anything calculated to deceive, including the suppression of truth and the suggestion of falsity.” In re Edmonds, 2014IL 117696, par. 53. “[M]otive and intent are rarely proved by direct evidence, but rather must be inferred from conduct and the surrounding circumstances.” In re Stern, 124 Ill. 2d 310, 315, 529 N.E.2d 562 (1988).
Here, the evidence established Respondent made a misrepresentation to Deputy Lampkin and did not disclose his acceptance of service on the subtenants’ behalf to the subtenants or to the Court. Contrary to Respondent’s assertion to Deputy Lampkin, he did not have authority to accept service on behalf of the subtenants nor did he have reason to believe he had such authority. The subtenants uniformly testified they did not authorize Respondent to accept service of process for them. Further, it is undisputed Respondent was not an officer, agent or registered agent for the corporate defendants, Law Office of Erik Rakoczy, LLC or Law Office of Phillip Brigham, LLC, so there was no legitimate basis upon which Respondent could accept service for those entities. Respondent realized the significance of the lawsuit at the time he was served. Given Respondent’s experience as an attorney, his financial troubles and his subsequent concealment of the eviction lawsuit, we do not believe his representation to Deputy Lampkin was an innocent mistake.
In addition, the evidence clearly established Respondent intentionally concealed the eviction lawsuit from the subtenants. He kept the complaint and summonses in his desk drawer and decided not to tell the subtenants about the lawsuit, much less that they were named defendants. Respondent characterized the concealment as a “business decision,” but we do not find his explanation credible. Rather, we find it more likely he did not want the subtenants to learn he had not been remitting their rent payments to the landlord and wanted to continue receiving their rent payments in order to pay his expenses. We also find the subtenants’ testimony that Respondent did not provide them with a copy of the complaint after informing them of the impending eviction both credible and further evidence of Respondent’s intent to conceal their status as defendants. This conduct cannot be explained as a business decision. Rather, it is apparent Respondent did not want the subtenants to know they were parties to the lawsuit or that Respondent had taken action on their behalf without their knowledge and consent.
We further find Respondent’s failure to inform the court of his acceptance of service without authority was a violation of Rule 8.4(c). Respondent knew he had accepted service without authority and knew the subtenants had no knowledge of the lawsuit and were not properly before the court. Nonetheless, Respondent made no effort to advise the court of the improper service, even after the subtenants were named in the order of possession. As an officer of the court and the only party with knowledge of the improper service, Respondent had an obligation to correctly inform the court of the facts of the case, “to aid it in doing justice and arriving at correct conclusions.” In re Braner, 115 Ill. 2d 384, 392, 504 N.E.2d 102 (1987). Consistent with our findings above, we find Respondent purposely concealed information pertaining to service from the court, and from opposing counsel, because he did not want anyone involved in the lawsuit to learn he was acting without the subtenants’ authority. Accordingly, for all of the foregoing reasons, we find the Administrator proved by clear and convincing evidence Respondent violated Rule 8.4(c).

The Hearing Board recommended a 90-day suspension.

Filed November 29:

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