Attorney Absolved Of Theft Charges; Majority Cites Pleading Defect

The recommendation of an Illinois Hearing Board is summarized below

The Administrator filed a one-count complaint  against Respondent, alleging that she failed to deposit her client’s settlement  funds into her client trust account and hold these funds separate from her own  property. The Complaint also alleged Respondent failed to promptly deliver these  funds to her client’s medical providers and failed to provide her client with a  written statement regarding the outcome of a contingency matter. In addition, it  was alleged that Respondent dishonestly used her client’s funds for her own  purposes and that her use of these funds constituted the criminal act of theft.  Although Respondent admitted that she improperly handled her client’s funds and  failed to provide her client with the written statement regarding the outcome of  the contingency matter as required by the Rules, she denied engaging in any  fraudulent, deceitful or dishonest conduct.

Although the majority of the Hearing Panel found  the Administrator proved by clear and convincing evidence that Respondent  engaged in the majority of the charged misconduct, it found the Administrator  failed to properly plead and prove that Respondent engaged in the criminal act  of theft. After considering the nature of Respondent’s misconduct, the  mitigating and aggravating evidence, and case law precedent, the majority  recommended Respondent be suspended from the practice of law for one year, with  the last six months stayed by a period of probation for one year, subject to  conditions.

The board majority view on the Administrator’s criminal theft charges

The Administrator bears the burden of proving  Respondent committed the underlying criminal act of theft in order to prove a  violation of Rule 8.4(b). As a result, we are dismayed at the Administrator’s  failure to plead in the Complaint that Respondent intended to permanently  deprive Mr. Akporido and/or Rehab and Pain Management of the use or benefit of  the funds. As stated above, proof of this element is necessary to establish she  engaged in the criminal act of theft. We strongly believe that if the  Administrator chooses to charge such a serious allegation of misconduct that  carries criminal connotations, he should, at the very least, ensure the factual  allegations pled in a complaint support the elements that constitute the  criminal offense at issue. This is especially the case when a respondent has  neither been charged with nor convicted of the offense. This assures that a  respondent receives proper notice of the charges against him/her.

A dissent on that point from committee member Stein

I think that the Administrator adequately pled his  charge that Respondent intended to deprive her client – Ayi Akporido – of some  $2,260 that he entrusted to her to pay his creditors. Disciplinary complaints  must “reasonably inform the attorney of the acts of misconduct he is alleged to  have committed.” Ill. Sup. Ct. R. 753(b). While no discipline can result from  uncharged misconduct, a disciplinary complaint “need not have the same  specificity as a criminal charge, and the Administrator need not plead every  fact []he intends to introduce in evidence.” In re Rice, 95 CH 210, M.R.  13391 (Mar. 21, 1997) (Review Bd. at 7) (citing In re Harris, 93 Ill. 2d  285, 292, 443 N.E.2d 557 (1982)).

The Complaint alleges that Respondent used the  balance of Mr. Akporido’s money “to pay her own personal and business expenses,  without authority” and without telling Mr. Akporido that she used his money “for  her own purposes” (Compl. at pars. 9-10). The Complaint also alleges that  Respondent’s actions consummated “the criminal offense of theft, in violation of  720 ILCS 5/16-1(a)(1)(A) and Rule 8.4(b) of the Illinois Rules of Professional  Conduct. . . .” (Compl. at par. 11(e)). These allegations gave Respondent  reasonable notice that she stood charged with theft.

In addition to adequately pleading theft, I believe  the Administrator proved this charge even though Respondent paid one of Mr.  Akporido’s creditors $500 of the $2,260 that her client owed. Returning some or all of another’s ill-gotten  property does not undo the intent to steal it.

I find it an uncomfortable result (at best) to see an accused attorney go free from discipline on what at most is a minor pleading defect.

Charges should be resolved on their merits, not on pleading technicalities, if we are to support the profession’s privilege of self regulation. (Mike Frisch)