Disbarment Proposed For Misconduct In Three Probate Matters
The Illinois Review Board proposes disbarment of an attorney who has been in solo practice since 1991
The Administrator charged Respondent with violating multiple Rules of Professional Conduct based upon his conduct in three trust or probate matters.
In one matter, Respondent served as both trustee and trust counsel to trusts created by two elderly sisters. After both sisters died, Respondent took years to notify or pay any of the beneficiaries, still has not paid one of the beneficiaries, and did not provide required accountings to any of the beneficiaries. His inaction spurred a lawsuit by the Illinois Attorney General. Notwithstanding his inaction, between the last sister’s death and his hearing, Respondent paid himself over $244,000 in fees from the trusts, including over $63,000 in fees for his defense in his disciplinary proceeding.
The two other matters involved probate proceedings in which Respondent represented the estates. In one, Respondent failed to notify the heirs or take the actions necessary to close the estate until sixteen years after he opened the estate. In the other, seventeen years after Respondent was retained to complete work on the matter, he had done very little work, and the estate remained open.
In all three matters, the Administrator charged Respondent with failing to provide competent representation and failing to act with reasonable diligence. In the matter involving the elderly sisters’ trusts, he also charged Respondent with taking an unreasonable fee, failing to promptly deliver funds that others were entitled to receive, and engaging in dishonesty.
Following a hearing at which Respondent appeared pro se, the Hearing Board found that Respondent had committed all of the charged misconduct. It recommended that he be disbarred, based on the seriousness of his misconduct and the many aggravating factors present.
Respondent appealed, arguing that the Administrator had no authority to charge him with misconduct based on his actions as trustee, and that the Hearing Board’s findings were against the manifest weight of the evidence.
The Review Board affirmed the Hearing Board’s misconduct findings. It found that the Administrator charged Respondent with misconduct because of his actions as attorney for the trusts, and therefore that his disciplinary proceeding was properly before the Hearing Board. It also found that the manifest weight of the evidence supported the Hearing Board’s misconduct findings.
The Review Board recommended that Respondent be disbarred for his misconduct. Among other things, it found that Respondent’s failure to acknowledge any wrongdoing indicated that there was a significant risk that he would engage in similar misconduct in the future.
One member of the review panel dissented, finding insufficient evidence of dishonesty and disagreeing with the recommendation of disbarment. Instead, he recommended a suspension of two years, commencing on the date of the Court’s order imposing an interim suspension.
The board described his handling of the estate of two sisters
From Helen’s death in September 2010 through October 2014, Respondent took $244,320 in purported fees from the trusts. Thus, even though we do not know the amount of assets in the trusts upon Helen’s death in 2010 – because Respondent has refused to provide an accounting – we can deduce that it was almost a quarter of a million dollars more in 2010 than in late 2014, when Respondent made his first distributions to the beneficiaries. We are particularly concerned that, as of the time of his hearing, Respondent still had made no distribution whatsoever to Mr. Larsen, who should have received $9,000 per year after Marie’s death and $18,000 per year after Helen’s death.
Respondent’s conduct throughout his disciplinary proceeding gives us no confidence that he will be able to conform his future conduct to ethical norms. The Hearing Board found especially troubling, as do we, Respondent’s total failure to take the slightest responsibility for his wrongdoing or even understand its wrongfulness. Respondent has even questioned the legitimate authority of agencies acting within their jurisdiction, such as the ARDC and the Illinois Attorney General, to investigate his conduct. As the Hearing Board noted, he seems to consider himself “above the law.” (Hearing Bd. Report at 37.)
He has yet to express any remorse for the harm he caused the trusts and trust beneficiaries. He has yet to take any responsibility for his misconduct or acknowledge that he has engaged in any wrongdoing. The Hearing Board correctly concluded that, based on its observations at hearing, Respondent did not acknowledge any responsibility for his own behavior, demonstrated a pattern of shifting blame to others, and did not seem to recognize “even the slightest possibility of an error on his part or of any need to change his behavior.” (Id.) Even at oral argument, he continued to insist that he did nothing wrong with respect to the Carstensen trusts. Indeed, Respondent stated in his brief to this Board:
There can be no dispute that appellant’s conduct throughout the case as a whole reveals no misconduct, dishonesty, or neglect.
There was a dissent from James T. Eaton
Here, Respondent has no prior record of any disciplinary action. His conduct in the handling of these matters may have been incompetent, dilatory, and presumptuous, but in my opinion, it does not rise to a level justifying disbarment, because there is insufficient evidence as to corrupt motives or moral turpitude other than “deductions” based upon evidence that I believe are unwarranted. Suspension is a proper punishment where corrupt motives and moral turpitude are not clearly shown. Id. Most of the opinions cited by the majority opinion and relied upon by the Hearing Board in this matter are inapposite because they had clear findings that the respondents in those cases were using the monies for their own personal benefit, in contrast to this case where the overcharging for services was based on a purported assumption that the client would allow Respondent to bill her trust similarly after her death…
I agree with the conclusion that he was not remorseful and that he had an attitude at the hearings. But, as I have observed in other matters before this Board, where Respondents are pro se, they fail to act adequately remorseful presumably for fear of how that might be an admission of the underlying charges; they fail to put on adequate evidence of mitigation again because these proceedings cover both liability and sanctions and one might legitimately be concerned that mitigation evidence suggests guilt; and, more importantly, without the guidance of experienced disciplinary defense counsel, they are not counseled that defiance of the ARDC and, in this case, also the Illinois Attorney General, is not helpful…
Respondent is 78 years old. He failed his clients in these matters and overcharged in one of them. Based on this record, I would recommend a suspension of two years. I do not believe if he returns to practice in two years after this suspension that he would pose a serious danger to future clients. I would also time the suspension from the date that he was suspended by the Court, June 15, 2016.
(Mike Frisch)