The ARDC review board has recommended a 90-day suspension for Scott Thomas Kamin, 2016 PR 97. Kamin was the main tenant in a shared law office. He fell behind on the rent. When he was served with the eviction lawsuit he took service for the subtenants but failed to notify them of the existence of the eviction lawsuit.
The facts are described as follows:
The Administrator brought a one-count complaint against Respondent, charging him with engaging in dishonest conduct in connection with an eviction matter, in violation of 2010 Illinois Rule of Professional Conduct 8.4(c). Following a hearing at which Respondent was represented by counsel, the Hearing Board found that Respondent had committed the charged misconduct and recommended that he be suspended for 90 days.
Respondent filed exceptions to the Hearing Board’s dishonesty finding as well as its sanction recommendation. He asks this Board to reverse the Hearing Board’s misconduct finding and to dismiss the complaint against him. In the alternative, he argues that, if this Board affirms the misconduct finding, he should be reprimanded or censured instead of suspended.
For the reasons that follow, we affirm the Hearing Board’s dishonesty finding and agree with its recommendation that Respondent be suspended for 90 days for his misconduct.
Respondent was admitted to practice in Illinois in 1995, and has been a solo practitioner since 1997, focusing his practice on criminal and civil rights matters. He has no prior misconduct.
In 2015 and early 2016, Respondent leased office space at 55 East Jackson Boulevard in Chicago. He, in turn, sublet office space to other attorneys, including Carla Buterman, Eric Rakoczy, Phillip Brigham, Jason Epstein, and a few others. In March 2015, Respondent fell behind in his rent payments, and in September 2015, he stopped paying rent entirely. During that time, however, he continued accepting rent payments from his subtenants, who did not know that he had fallen behind in his own rent payments, and was struggling to pay his other bills.
On November 5, 2015, attorney Allen B. Glass filed an eviction lawsuit on behalf of the landlord against Respondent personally, his law office, and the law offices of Brigham, Epstein, Rakoczy, and “unknown occupants.” Glass testified at Respondent’s hearing that the subtenants had to be named in the lawsuit for possession purposes.
On November 6, Cook County Sheriff’s Deputy Tony R. Lampkin went to Respondent’s office and served the summons on him. He asked Respondent if he was authorized to accept service for the others on the service list, and Respondent said that he was. Lampkin thus indicated on the affidavit of service that he had left copies of the summonses and complaint with authorized persons. The subtenants were not in the office at the time Respondent accepted service. Respondent thinks he put the complaint and summonses in his desk drawer.
Buterman (who was not named in the complaint), Epstein, Brigham, and Rakoczy all testified that they did not authorize Respondent to accept service of process for them, and that Respondent did not tell them about the lawsuit or that they were named as defendants.
Respondent acknowledged that he accepted service on behalf of his subtenants; that he did not seek their authority to accept service on their behalf; and that he did not tell any of them that he had accepted service on their behalf.
On at least three occasions, Glass and Respondent appeared in court on the eviction lawsuit. Respondent did not tell the judge that the subtenants were not properly served. Glass testified that Respondent represented to the court that he was appearing on behalf of himself and the other named defendants. Respondent denied making any such representation and testified that the issue of who represented the subtenants never came up. The Hearing Board credited Glass’s testimony, not Respondent’s.
Respondent told Glass that he would be able to pay his back rent when he received a settlement from the City of Chicago. Glass agreed to continue the matter a few times to give Respondent a chance to present a payment plan. But the settlement that Respondent expected did not come through, and Respondent did not present a payment plan or pay any of his back rent.
Respondent told Glass that he would be able to pay his back rent when he received a settlement from the City of Chicago. Glass agreed to continue the matter a few times to give Respondent a chance to present a payment plan. The settlement that Respondent expected did not materialize and Respondent never presented a payment plan or paid any of his back rent.
Consequently, on January 21, 2016, the court entered an order of eviction and a judgment of $43,468.48 against Respondent and his law office subtenants. Respondent’s subtenants learned of the order of eviction around the time it was entered, or shortly thereafter.
Buterman testified that she learned about the impending eviction around January 19, when another subtenant, who was not named in the complaint, told her he thought they were being evicted. Respondent told Buterman about the eviction about a day later. He showed her a copy of the eviction complaint, after she asked to see it, but did not give her a copy. According to Buterman, Respondent said he had accepted service of the complaint on behalf of everyone in the office and then put the complaint in his drawer because he did not want anyone to know he had been served with the complaint. He told her that he did not notify her about the eviction because he feared the subtenants would leave before he had a chance to work things out with the landlord.
Rakoczy testified that Respondent told him about the eviction at the end of January. Respondent did not tell him that an order of possession had been entered or show him the complaint or summons. Rakoczy did not learn about the lawsuit or that he had been named as a defendant until after he had moved out in February. He learned about the lawsuit from either Brigham or Buterman.
Brigham testified that he learned of the eviction from Rakoczy, and that Respondent came to talk with him later that day or the next day. Respondent told Brigham he made a business decision not to notify anyone and that he thought he would be able to resolve the eviction lawsuit because he had expected some cases to settle. Respondent did not show or give Brigham a copy of the complaint, or tell Brigham that he was named as a defendant.
Epstein testified that he learned of the eviction when Respondent and another male subtenant came into his office and told him they had to move in ten to fourteen days. He did not recall Respondent saying that a lawsuit had been filed and that he had been named as a defendant. Respondent did not give Epstein a copy of the complaint or summons, or tell Epstein that he had accepted service on Epstein’s behalf. Epstein learned about the judgment after his conversation with Respondent.
After all of the tenants had moved out of 55 East Jackson, Rakoczy, Brigham, and Epstein filed motions to vacate the judgment against them, on the ground that service was improper because Respondent was not authorized to accept service for them. Glass agreed to vacate the judgment against the subtenants, and the court issued an order vacating the judgment against them.
HEARING BOARD’S FINDINGS AND RECOMMENDATION
The Hearing Board found that Respondent had committed the misconduct with which he was charged – engaging in dishonest conduct in violation of Rule 8.4(c) by stating to Deputy Lampkin that he was authorized to accept service on behalf of the subtenants when he was not; 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.
Regarding the misrepresentation to Lampkin, the Hearing Board inferred dishonesty from the circumstances. It found that, contrary to Respondent’s assertion to Lampkin, he did not have authority to accept service on behalf of the subtenants nor did he have reason to believe that he had such authority. It reasoned that, given his experience as an attorney, his financial troubles, and his subsequent concealment of the lawsuit from his subtenants, it did not believe that his representation to Lampkin was an innocent mistake.
The Hearing Board also found that Respondent had concealed the lawsuit from his subtenants, noting that he kept the complaint and summonses in his desk drawer and decided not to tell the subtenants about the lawsuit or that they were named defendants in it. It found not credible Respondent’s explanation that not telling the subtenants about the lawsuit was a business decision, finding it more likely that he did not want the subtenants to learn that he had not been remitting their payments to the landlord and wanted to continue receiving their payments in order to pay his expenses. It found credible the subtenants’ testimony that Respondent did not provide them with a copy of the complaint after informing them of the impending eviction, which it found to be further evidence of his intent to conceal their status as defendants. It found it apparent that Respondent did not want the subtenants to know they were parties to the lawsuit or that he had taken action on their behalf without their knowledge and consent.
And last, the Hearing Board found that Respondent’s failure to inform the court that he had accepted service on behalf of the subtenant defendants without their authority was dishonest. It found that he knew he had accepted service without authority and that the subtenants had no knowledge of the lawsuit and were not properly before the court, and yet he made no effort to advise the court of the improper service, even after the subtenants were named in the order of possession. It found that, as an officer of the court and the only party who knew of the improper service, he had an obligation to inform the court of the facts of the case. It thus concluded that Respondent intentionally concealed information about service from the court, and from opposing counsel, because he did not want anyone involved in the lawsuit to know he was acting without the subtenants’ authority.
The Review Board upheld the finding of a violation of Rule 8.4(c).