ARDC Review Board Recommends 90 day Suspension for Shared Law Office Fiasco

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
Misconduct Findings 

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).

ARDC Hearing Board Recommends 90-day suspension for Revealing Confidences and Seeking Client’s Agreement Not to Make Disciplinary Complaint

The case is In re Laura Lee Robinson, 2016 PR 000126.

The facts are reported as follows:

“In May 2015, Respondent began representing John Quincy Adams IV in some criminal and traffic matters. She and Adams entered into a retainer agreement, which she prepared and presented to him and which provided, in part:
Client agrees to make all matters of said representation confidential between client(s), his/her agents, assigns and principals and to refrain from reporting any phase of said representation to any external agency, including but not limited to the Missouri Bar, ARDC etc.
(Hearing Bd. Report at 4 (citing Admin. Ex. 1).)
Respondent represented Adams until March 2016. On March 2, Adams filed with the court a handwritten motion stating that he would like to fire Respondent and hire different counsel. That same night, Respondent and Adams had a phone conversation. Respondent testified that he told her he had made up his mind to fire her, that he was going to get her in trouble, and that he had filed a complaint against her. He did not tell her that he had already filed a motion to dismiss her as his counsel.
Following their phone conversation, Respondent drafted a letter to Adams in which she referred to his “horrible criminal past” and a “violent criminal past;” stated that he has been “arrested and/or convicted in Missouri at least fourteen times;” stated that he “wanted to bribe the court in some manner;” and called him a “paranoid ingrate and miserable con man who
PAGE 3:
tries to blame everyone else but yourself for YOUR misdeeds TO WHICH YOU CONFESSED.” (Hearing Bd. Report at 11 (emphasis in original).)
A hearing on Adam’s motion was set for March 10, and notice of the hearing was sent to Respondent on March 3. On March 9, Respondent filed an answer to Adam’s motion with the Circuit Court of Monroe County, and attached the above-quoted letter to her answer. It thus became a matter of public record.
Respondent testified at her hearing that she was “in a blur” and “upset” when she wrote the letter because of Adams’ rant during their conversation. She further testified that she included the letter with her filed answer out of “just frustration,” because she was “enraged” and in a “rage of emotion,” and “reacted on ? [her] own personal hurt.” She acknowledged that the letter contained confidential information that she should not have disclosed without her client’s consent; that the filing of the letter was “wrong;” and that she “was not justified” in filing it. (Hearing Bd. Report at 17.)”
The ARDC Hearing Board and the Review Board ordered a 90-day suspension of the attorney.
Rule 8.4(h) provides that “It is professional misconduct for a lawyer to “
enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before the Illinois Attorney Registration and Disciplinary Commission.”

In my opinion, there is no doubt that the lawyer violated that rule by inserting the provision in her engagement letter.
Rule 1.6(a) provides that: “ (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).

Again, revealing the draft letter in which the lawyer noted that the client had “confessed” was obviously (in my opinion) evealing confidential information to the detriment of the client.

The Board also found that the respondent did not fully accept responsibility for her actions.

Edward X. Clinton, Jr.

ARDC Hearing Board Orders Suspension For Failure To Pay Income Taxes And Related Misconduct

The case is captioned Robert Kent Gray, 2016 PR 00045. This case is an example of carelessness magnified into an ARDC proceeding because an attorney did not file his income tax returns for several years and then was put in a terrible jam when his wife sought a divorce from him.

The Hearing Board found that Gray did not file income tax returns from 2010-14 and then lied about it when the issue arose in his divorce proceeding. The respondent took the Fifth Amendment in response to each question asked in his deposition.  The Hearing Board voted a one-year suspension. The Review Board also voted for a one-year suspension. The dissenting member of the panel would have given Gray a six-month suspension.

The facts are described as follows:

Respondent’s Conduct During His Divorce Proceedings
Per the allegations and charges in Count I of the amended complaint, during his divorce proceedings, Respondent repeatedly ignored the court’s order to produce his tax returns for 2010, 2011, and 2012, and to obtain transcripts of his tax returns for those years from the IRS. Moreover, he did not file federal or state tax returns or pay taxes for the years 2010 through 2014. He thus knowingly made three false statements – one in a pleading, one in a letter to opposing counsel, and one during a hearing – regarding his efforts to obtain transcripts of his tax returns, because he knew that no transcripts of his returns existed.

Respondent’s Unauthorized Practice of Law
Andrew Oliva, Registrar for the ARDC, testified by evidence deposition that Respondent did not timely register by January 1, 2015, and that, on March 10, 2015, he was removed from the Master Roll. Mr. Oliva testified that Respondent was sent multiple registration notices, by both mail and e-mail, and none of them was returned as undeliverable. Respondent became registered again on April 17, 2015. Between March 10 and April 17, while he was removed from the Master Roll, Respondent performed legal work for the Villages of Southern View and Illiopolis.

The Review Board rejected the challenge that Gray made to the Hearing Board’s finding. It held that (a) the Administrator was not required to obtain a judicial determination when Gray asserted the Fifth Amendment privilege; (b) the admission of an evidence deposition of the ARDC clerk was not an error, and (c) the Hearing Board was correct in finding that there ware aggravating factors.

The most interesting issue raised in the appeal is whether or not the Hearing Board was correct to sanction Gray for failing to sign an IRS form to release his tax returns. The Panel Discussion:

Respondent argues that the sanction that the Hearing Panel Chair imposed on him for not signing IRS Form 8821 – deeming the allegations and charges in Count I admitted – is not permitted by the ARDC Rules. He contends that the language of the sanction was “pulled” from Rule 236, regarding a failure to answer. He has not fully articulated his reasoning, but seems to argue that the sanction relieved the Administrator of the burden of proving his case and deprived Respondent of presenting exculpatory evidence, including his own testimony and the IRS transcripts, which would have defeated the Administrator’s burden of proof. Supreme Court Rule 219(c) and Commission Rule 260(e) provide that the Hearing Board may sanction a party’s unreasonable refusal to comply with requests for discovery or with orders entered by the Hearing Board. In re Spiezer, 00 SH 49 (Review Board, March 28, 2002), at 5, petition for leave to file exceptions allowed, M.R. 18161 (Sept. 19, 2002). This Board reviews the Hearing Board’s sanction decisions for abuse of discretion. Id.
A hearing panel chair can deem allegations admitted as a discovery sanction for an attorney’s willful failure to comply with a discovery order. See Id. (hearing panel chair struck respondent’s answer, deemed allegations of the complaint admitted, and barred respondent from testifying at hearing after respondent failed to comply with discovery orders); In re Duval, 2012PR00018 (Hearing Bd., June 12, 2014), approved and confirmed, M.R. 26849 (Sept. 12, 2014) (hearing panel chair entered order deeming allegations of complaint admitted after respondent refused to provide signed medical releases and other information to the Administrator).
Because Respondent did not comply with the order to sign the IRS form, and did not respond to the Administrator’s motion for sanctions, the Hearing Panel Chair did not abuse his discretion in granting the motion for sanctions and sanctioning Respondent for his willful failure to comply with the discovery order.
Respondent links the Hearing Panel Chair’s sanction order with the Administrator’s purported failure to follow the Zisook procedure, contending that the Administrator ignored the Zisook procedure but then filed a motion for sanctions against Respondent because he had not signed and produced IRS Form 8821, as to which he also asserted his Fifth-Amendment privilege. Respondent claims that, by deviating from the Zisook procedure but then “sidestepping” the required burden of proof by having the allegations deemed admitted, the Administrator avoided having to actually prove his case. For this reason, Respondent argues, the charges in Count I should be dismissed.
As noted above, the Administrator was not required to follow the procedure set forth in Zisook. Moreover, Respondent was not sanctioned for his invocation of the Fifth Amendment, but for his failure to comply with a discovery order. While he contends that he had a right under the Fifth Amendment not to sign IRS Form 8821, signing an authorization form that would allow a third party to produce documents is not the type of testimonial communication that the Fifth Amendment is intended to protect. See Fisher v. United States, 425 U.S. 391, 408, 96 S. Ct. 1569 (1976) (holding that defendants could not assert Fifth Amendment privilege to stop production of tax records in possession of attorneys and accountants because production of documents by a third party is not a testimonial communication). Consequently, Respondent could not avoid complying with the order to sign and produce Form 8821 by invoking the Fifth Amendment to [sic].

Opinion at 9-10.

This is a case where the lawyer was careless and then, due to the aggressive and contentious nature of his divorce, was placed in a terrible position.

I understand why he took the Fifth Amendment, but there may have been a better way to resolve this mess. There is no question that Gray was a competent attorney and was able to do his work. His carelessness and lack of attention to detail (in my opinion) was the reason for the harsh punishment.

Edward X. Clinton, Jr.

ARDC Review Board Recommends 90-day suspension for lawyer who communicated with another party represented by counsel

The respondent represented one of two men (Murray) who was indicted for the murder of Murray’s wife. The other defendant was represented by a public defender. The respondent asked the public defender for permission to interview his client, but the public defender refused. The Hearing Board and the Review Board found a violation of Rule 4.2.

The Panel explains the facts in this way:

In January 2013, James Murray and Travon McDonald were indicted for the murder of Murray’s wife. They were named as co-defendants in a single indictment. Respondent represented Murray, and Assistant Public Defender David McMahon represented McDonald.In December 2014, while McMahon was meeting with McDonald at the jail, Respondent and Gonzalez showed up to talk with McDonald. McMahon told Respondent that he represented McDonald and that Respondent could not speak with McDonald. McMahon gave Respondent his name and phone number so that Respondent could contact McMahon if he wanted to discuss the case. Respondent left without speaking to McDonald, and McMahon thought his position – that Respondent was not permitted to speak with McDonald – was clear.Respondent returned to the jail two days later and met with McDonald. Respondent spoke with McDonald about Respondent’s strategy in defending Murray, and McDonald told Respondent that his attorney wanted him to plead guilty and testify against McDonald.

The respondent argued that Rule 4.2 did not apply to his conduct. The Panel disagreed and explained its reasoning:

Rule 4.2 provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Ill. R. Prof. Cond. 4.2 (2010) (emphasis added). Respondent argues that, based upon the language emphasized above, Rule 4.2 did not apply to his communication with McDonald.
Respondent’s challenge raises a question of law about whether Rule 4.2 applies to his conduct. We review questions of law, such as whether circumstances shown by undisputed facts constitute misconduct and what interpretation is to be given to rules, under a de novo standard. In re Morelli, 01 CH 120 (Review Bd., March 2, 2005), at 10, approved and confirmed, M.R. 20136 (May 20, 2005); In re Edmonds, 2014 IL 117696, par. 36.
Respondent first contends that McDonald’s case was different and separate from Murray’s case, in that Murray was not a party to McDonald’s proceeding and McDonald was not a party to Murray’s proceeding. He thus argues that, because McDonald and Murray were not
involved in the same matter, the “in the matter” language in Rule 4.2, and therefore the rule itself, did not apply to this situation.
We disagree with Respondent’s interpretation of Rule 4.2, which was amended in 2010 to bar communication with represented persons, not just parties. The 2010 amendment brought Illinois Rule 4.2 in line with ABA Model Rule 4.2, which is designed to protect a represented person “?whose interests are potentially distinct from those of the client on whose behalf the communicating lawyer is acting.'” Annotated Model Rules of Professional Conduct, at 445 (quoting ABA Formal Ethics Op. 95-396 (1995)).
We believe there is no doubt that Respondent communicated with a person he knew to be represented by another lawyer “in the matter” within the meaning of Rule 4.2. Murray and McDonald were co-defendants in the same criminal case and charged under the same indictment with the murder of the same person during the same event. Moreover, the interests of Murray and McDonald were clearly distinct, as McDonald had purportedly made a statement implicating Murray in the murder. Thus, both the letter and the spirit of Rule 4.2 applied here.
Respondent next argues that the only conversation that Rule 4.2 prohibits is one that is about “the subject of the representation,” and that the Administrator presented insufficient proof that, when he spoke to McDonald, they spoke about “the subject of the representation.” He contends that the Administrator presented no evidence of what he and McDonald talked about, and that the Hearing Board committed error by assuming facts not in evidence.
Again, we disagree. Respondent stated in his answer to the complaint that, when he met with McDonald, he explained his strategy about how he was going to defend Murray, and McDonald told him that his attorney wanted him to plead guilty and testify against Murray.  

Comment: I can understand why the public defender was upset that the respondent ignored his instructions and interviewed his client. The public defender was involved in plea negotiations and did not want those negotiations to be disturbed. The panel’s conclusion that the respondent had a “sincere” but “patently wrong” belief that he could interview the other defendant is correct but impossible to reconcile with the Rules of Professional Conduct.

Ed Clinton, Jr.

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False Invoices Lead to a One-Year Suspension

A lawyer claimed that she was having a difficult time caring for relatives, submitted false invoices to an assigned counsel program. Respondent was convicted of attempted falsifying business records. The panel’s summary is quoted below:

Respondent was admitted to the practice of law by this Court on June 21, 2010, and she formerly maintained an office in Steuben County. On July 28, 2016, she was convicted upon her plea of guilty in Steuben County Court of attempted falsifying business records in the first degree (Penal Law §§ 110.00, 175.10). During the plea colloquy, respondent admitted that, in December 2015, she submitted to an assigned counsel program a voucher wherein she overstated the time she had spent meeting with certain clients and the expenses she had incurred in relation to three client matters. On October 12, 2016, the court sentenced respondent to a one-year conditional discharge and 200 hours of community service. In August 2017, respondent notified the Grievance Committee of the conviction, at which time she asserted various matters in mitigation, including that her conduct underlying the conviction occurred while she was caring for seriously ill relatives and that the false voucher was primarily attributable to inadvertence and inexperience with assigned counsel billing procedures.

At the disciplinary proceeding, the lawyer attempted to argue that she was not, in fact, guilty, but the panel disregarded that argument.   It explained:

By virtue of her guilty plea, respondent admitted that she filed a false assigned counsel voucher with the requisite fraudulent intent. It is well settled that respondent is precluded from relitigating that issue in this proceeding (see Matter of Levy, 37 NY2d 279, 281 [1975]). ‘via Blog this’

Lawyer Charged with Misrepresentation to the Court About HIs Client’s Age

The ARDC has filed a complaint against a lawyer who filed a petition to vacate a 2001 battery conviction of a client. In the motion, the lawyer stated that the client was 17, but, in fact, she was 18 when she pleaded guilty.  The case illustrates the enormous effect that an old conviction can have on a young person. The client was denied admission to nursing school because of a 2001 conviction, where she had no attorney present.  For the lawyer, the difference between 17 (a minor) and 18 (an adult) was very significant.

The complaint alleges violations of Rule 3.1 (frivolous allegation), Rule 3.3(a)(1) (false allegation in a pleading) and 4.1(a) (false statement of fact to a third party).

The allegations of fact:

1. On April 6, 2001, the state’s attorney for Winnebago County charged Courtney A. Chester (“Chester”) with the offense of battery, allegedly occurring on March 29, 2001, a misdemeanor in violation of 720 ILCS 5/12-3(a)(2) of the Illinois Compiled Statutes. The clerk of the 17th Judicial Circuit Court for Winnebago County docketed the case as People v. Chester, case number 2001-CM-0002559.
2. In March and April of 2001, Chester was 17 years old.
3. On April 16, 2001, Chester appeared in court pro se and pled not guilty to the charge against her in case number 2001-CM-0002559.
4. On June 13, 2001, Chester appeared in court pro se, and the judge continued case number 2001-CM-0002559 to August 30, 2001, a date after Chester’s 18th birthday.
5. On August 30, 2001, Chester appeared pro se in court before the Honorable Brian Shore and pled guilty to, and was found guilty of, the battery charge. At that time, Judge Shore, pursuant to the conviction for the battery offense, entered an order sentencing Chester to conditional discharge for a period of 12 months.
6. On or about February 24, 2017, Chester applied to become a student in the nursing program at Rasmussen College. As part of her application, Chester consented to an independent background check. That background check identified Chester’s 2001 criminal conviction, and she was denied admission to the nursing program.
7. On or about March 1, 2017, Respondent and Chester agreed that Respondent would represent Chester in connection with her 2001 criminal conviction for battery. Respondent and Chester agreed, and Chester did pay Respondent $750 to represent her in the matter. Chester told Respondent that she had been 18 years old at the time she pled guilty to the battery charge in 2001. At that time, Respondent knew that Chester’s conviction was not eligible for expungement under 20 ILCS 2630/5.2, and so he agreed to request that a judge vacate her conviction.
8. Sometime between March 1, 2017 and May 17, 2017, Respondent spoke with Winnebago County Assistant State’s Attorney Joseph Lesner (“Lesner”) and asked Lesner whether he would consider agreeing to a motion to vacate Chester’s conviction in case number 2001-CM-0002559. At no point in that conversation did Respondent tell Lesner that Chester had been 18 years old at the time of her conviction or that her conviction could not be expunged. At no time before May 17, 2017 did Lesner tell Respondent that he would give favorable consideration to a motion to vacate the conviction.
9. On May 17, 2017, Respondent filed a motion to vacate Chester’s guilty plea and conviction in case number 2001-CM-0002559. In the motion, Respondent made the statement that “[Chester] was 17 years of age at the time of charging and sentencing.” Respondent also made the statement that because “[Chester] was only 17 at the time of the plea and conviction her plea and conviction should be properly voided.”
10. Respondent’s statements in the motion to vacate that Chester was only 17 years old at the time of her conviction were false because she was then 18 years old.
11. Respondent knew when he signed and filed the motion that the statements in paragraph 9 of this complaint were false because he knew that Chester had been 18 years old when she pled guilty to the battery charge and was sentenced.
12. Respondent sent a copy of the motion to vacate to Lesner and included a cover letter that repeated the statement that Chester had been 17 years old at the time of her battery conviction.
13. Respondent’s statement in the letter to Lesner that Chester was only 17 years old at the time of her conviction was false because she was then 18 years old.
14. Respondent knew when he made this statement that it was false because he knew that Chester was 18 years old when she pled guilty and was sentenced to conditional discharge.
15. Respondent appeared in court before Judge Shore in connection with the motion to vacate on May 23, 2017, and Judge Shore continued the matter until June 27, 2017.
16. Respondent and Lesner appeared in court before Judge Shore on June 27, 2017 in case number 2001-CM-0002559. When Judge Shore (referred to as “THE COURT”) called the case, he questioned Respondent about the motion to vacate:
THE COURT: Okay. The basis of the motion was the birthdate, but that’s not an issue anymore, is it?
RESPONDENT: Well, she was 17.
LESNER: She was 17.
THE COURT: Not at the time of the plea?
RESPONDENT: Yeah. I don’t know. I’ve still – –
17. At the June 27, 2017 hearing, Judge Shore also questioned Respondent regarding his statement in the motion to vacate that Chester was 17 years old when she pled guilty to battery:
THE COURT: Well, but you pled that she was 17 at the time she pled.
RESPONDENT: That’s what I believed when I wrote the motion, but subsequently I determined that she was, in fact, over that age, but – –
* * *
THE COURT: You did not research the pleading?
RESPONDENT: I did not research the date. I was researching other issues because that was my first option.
18. The statements Respondent made in open court relating to Chester’s age on June 27, 2017, as alleged in paragraphs 16 and 17 of this complaint, were false. Respondent knew that the statements were false because he knew that Chester had been 18 years old when she pled guilty and was sentenced.
19. In denying the motion on June 27, 2017, Judge Shore admonished Respondent for filing a “blatantly false allegation” that would have been “simply verifiable.”

Conclusion: Had the lawyer’s representations been more accurate, the client would have been better served.
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ARDC Files Complaint Against Lawyer Who Harassed Women Lawyers

BEFORE THE HEARING BOARD:

The allegations are quite shocking and inappropriate. These are quotations from the ARDC’s complaint:


2. Beginning in 2014, and at all further times alleged in this count, Respondent represented Judith Wyman (“Wyman”) and Kitty Knapp (“Knapp”) in separate employment discrimination cases related to their employment termination from the Olympic Star Restaurant (“Olympic Star”), operated by Evgeros, Inc. (“Evgeros”). Respondent filed the following cases on behalf of each client in the United States District Court for the Northern District of Illinois: Judith Wyman v. Evgeros, Inc. d/b/a Olympic Star Restaurant(“Wyman matter”), case number 1:15-CV-02758, which was assigned to the Hon. Matthew F. Kennelly (“Judge Kennelly”); and Kitty Knapp v. Evgeros Inc., d/b/a Olympic Star Restaurant (“Knapp matter”), case number 1:15-CV-00754, which was assigned to the Hon. Gary Feinerman (“Judge Feinerman”). Attorney Courtney Lindbert (“Lindbert”), from the law firm of Andreou and Casson, Ltd. (“Andreou and Casson”), represented Evgeros in both matters.
3. On September 15, 2016, while both the Wyman and Knapp matters were pending, Respondent and Lindbert appeared before Judge Kennelly in relation to the Wyman matter for a hearing on the Court’s rule to show cause entered on September 12, 2016. The Court had entered the rule to show cause based on Respondent’s alleged failure to file a response to Lindbert’s motion for summary judgment. Judge Kennelly concluded the hearing by allowing Respondent additional time to file the appropriate pleading.
4. Following that hearing, Respondent and Lindbert exited Judge Kennelly’s courtroom, and had a conversation in a hallway outside the courtroom regarding the Wyman case and pleadings which Lindbert intended to file. During that conversation, outside the courtroom, Lindbert informed Respondent of her intention to file pleadings related to sanctions under Federal Rule of Civil Procedure 11. When Lindbert asked Respondent if Respondent heard her, Respondent stated “I did, Cunt-ney.” Lindbert responded “Excuse me,” to which Respondent again stated “I did, Cunt-ney.”
5. On December 3, 2016, while both the Wyman and Knapp cases were pending, Respondent sent an email from his law firm email address to Lindbert at her law firm email address at approximately 10:46 p.m. regarding the parties’ ongoing litigation. In his email, Respondent began his correspondence by addressing Lindbert as “Cuntney Lindbitch.”
6. On December 5, 2016, attorney Luke Casson (“Casson”), a partner with Andreou and Casson, informed the Hon. Ruben Castillo, Chief Judge of the U.S. District Court of the Northern District of Illinois, of Respondent’s conduct towards Lindbert, and requested that the Court taken action against Respondent.
7. On December 13, 2016, the Executive Committee of the U.S. District Court for the Northern District of Illinois issued a rule to show cause by way of a citation, ordering Respondent to show cause why he should not be disciplined for his conduct towards Lindbert, as reported by both Lindbert and Casson.
8. On January 18, 2017, following Respondent’s citation response and the Executive Committee’s review of the allegations and other information, the Executive Committee entered an order finding that Respondent engaged in the misconduct described in paragraphs 4 and 5. In imposing discipline on Respondent for his misconduct, the Executive Committee struck Respondent from the Trial Bar of the Northern District of Illinois and suspended him from the General Bar of the Northern District of Illinois for 12 months. The Order also required that, as part of any reinstatement petition, Respondent must demonstrate having sought professional assistance with both his compliance with the Rules of Professional Conduct as well as his anger management.
9. The statements Respondent made to Lindbert on September 15, 2016, referred to in paragraph 4, above, served no purpose other than to embarrass, intimidate, and burden Lindbert during the course of his representation of Wyman and Knapp. The email Respondent sent to Lindbert on December 3, 2016, referred to in paragraph 5, above, served no purpose other than to embarrass, intimidate, and burden Lindbert during the course of his representation of Wyman and Knapp.
10. By reason of the conduct described above, Respondent has engaged in the following misconduct:
  1. in representing clients in employment discrimination matters, using means that have no substantial purpose other than to embarrass, delay, or burden a third person, by conduct including addressing opposing counsel Courtney Lindbert as “Cunt-ney” following a court proceeding during discussions related to the pending Wyman litigation, and sending Lindbert an email related to the parties’ ongoing litigation addressing Lindbert as “Cuntney Lindbitch,” in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and
  2. conduct that is prejudicial to the administration of justice by conduct including addressing opposing counsel Courtey Lindbert as “Cunt-ney” following a court proceeding during discussions related to the pending Wyman litigation, and sending Lindbert a harassing email to Lindbert’s law firm email address related to the parties’ ongoing litigation addressing Lindbert as “Cuntney Lindbitch,” in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

Comment: there is a second count with allegations that the lawyer engaged in conduct “to embarrass and burden a third person in the course of pending litigation,” (another female attorney).



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A Cautionary Tale – Lawyer Reprimanded Where His Partner Converted Client Funds

BEFORE THE HEARING BOARD:

The attorney in this matter did not convert any client funds. He was essentially accused by the ARDC of failing to safeguard client funds because he was a signatory on the trust account and did not prevent his law partner from converting funds.

The Joint Stipulation describes the violation and the mitigation in this way:

30.  By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. failure to hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property, by conduct including transferring settlement proceeds belonging to Flores, Benefits Administration, and Smith-Jenkins from the firm’s client trust account into the firm’s operating account, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010); and,
  2. failure to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct, by conduct including failing to ensure that the firm instituted appropriate safekeeping measures for the firm’s clients’ funds, in violation of Rule 5.1(a) of the Illinois Rules of Professional Conduct (2010).
  1. FACTORS IN MITIGATION

31. Respondent has not been previously disciplined, has acknowledged and expressed remorse for his conduct, has made restitution to Dziedziak’s clients, and has been cooperative throughout the disciplinary proceedings. Respondent was a Captain in the U.S. Army during the Vietnam War and continued his public service over the next 30 years as a U.S. Attorney, Administrative Law Judge, and as an attorney for the Illinois Department of Family Services.  Respondent also previously participated as a member of the Commission’s Hearing and Inquiry Boards and has provided pro bono legal services to indigent defendants in criminal matters.”



Comment: the issue here is that the lawyer failed to stop his partner from converting funds. It is an unusual disciplinary case but one that can happen to any lawyer who fails to stop a dishonest partner from converting funds. The respondent here appears to have used his own personal funds to reimburse all the clients who lost money.



Edward X. Clinton, Jr.



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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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South Carolina Issues Reprimand To Lawyer Who Paid Referral Fees to Nonlawyers

IN THE MATTER OF TAYLOR, SC: Supreme Court 2017 – Google Scholar:

Rule 5.4 prohibits a lawyer from paying a referral fee to a nonlawyer. Indeed, it prohibits sharing any fees with nonlawyers.

The respondent was a personal injury lawyer who paid two nonlawyers substantial referral fees for referring a personal injury case to him. The two checks amounted to $48,500 and $20,000. One of the checks was paid to a local police chief.

Comment: the lawyer was extremely lucky to escape with a reprimand.

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