An Illinois Hearing Board has recommended dismissal of charges of misconduct brought against an attorney in a domestic relations matter.
the Administrator filed a one-count Complaint against Respondent alleging he attempted to defraud a litigation opponent by altering a document after it was signed and then falsely describing the document as reflecting the signatory’s intent. The Complaint further alleged that Respondent attempted to effectuate a transfer of funds in excess of the amount ordered by the court.
The board
The evidence showed that Respondent represented Matthew Molitor in his divorce from Kathy Molitor. As part of the division of marital property, the court ordered that a Pacific Life annuity be divided equally between the two parties. Respondent took measures to accomplish that objective by completing the appropriate Pacific Life withdrawal request form and obtaining Kathy’s signature. Problems arose when he altered the form after she signed it.
Respondent fully acknowledged revising the form after Kathy signed it, but denied any intent to violate the court’s order as to how the funds should be distributed or to deprive Kathy of her share of the funds. He testified he initially sent an unaltered copy of the signed withdrawal request form to Richard Ozols, Kathy’s financial advisor and representative of Pacific Life, and only made the revisions after learning from Ozols that a QDRO might be required. He claimed he spoke to Ozols about the revisions, which were in the nature of a proposal, and expected Ozols to seek Kathy’s approval before submitting the form to Pacific Life.
The Administrator attempted to prove that Respondent never sent the original unaltered request form to Ozols and instead, after receiving the signed form on March 11, 2014, immediately made alterations and sent the revised version to Ozols with the expectation that Ozols would submit it to Pacific Life and Pacific Life would then transfer 100% of the funds to Respondent’s client trust account. The Administrator argued that Respondent engaged in fraud and deceit by attempting to pass off the altered form as the one signed by Kathy.
We found Respondent to be credible and his account of his actions to be supported by other evidence. In particular, the conspicuous manner in which he made revisions to the withdrawal form, including drawing an arrow in the margin to note the change, is consistent withhis contention that he had spoken to Ozols about modifying the document and was trying to direct Ozols’ attention to the changes so Ozols could communicate them to Kathy. Clearly Respondent was not trying to conceal the revisions from Ozols or anyone else who would review the form. Further, it was readily apparent that the changes were not initialed, and that circumstance alone would alert anyone examining the form to the fact it had not been finalized…
We do not find a violation of Rule 8.4(d). The Administrator did not prove, by clear and convincing evidence, that Respondent’s act of submitting the altered form to Ozols had any impact on his representation of his client or on the outcome of the post-judgment proceedings. While Kathy testified that the annuity funds were never distributed, we do not know the cause of the continued delay. What we do know is Respondent made repeated attempts to move the proceedings along and to comply with the court’s order of February 10, 2014.
Likewise, the Administrator’s assertion that Respondent attempted to cause the transfer of funds in excess of what was ordered by the court was not proved, as Respondent testified he had no intention of violating the court’s order to divide the annuity 50/50. Rather, the evidence showed he was attempting to find a way to avoid the cost of a QDRO by having the total amount of the annuity surrendered and transferred to his client trust account. That action does not indicate that the funds would then have been distributed in a manner inconsistent with the court’s order.