Censure Proposed For Trust Account Misuse

The Illinois Review Board took a rather sympathetic approach to the case of an attorney who had admitted dishonest use of advanced retainers in five matters

The Hearing Board clearly and thoroughly set out the few aggravating and myriad mitigating circumstances involved in this case. We summarized them above, and need not repeat them here. We wish to emphasize, however, its findings regarding Respondent’s acceptance of responsibility and remorse for her misconduct. The Hearing Board found that Respondent was “particularly candid and contrite” throughout the hearing about her misconduct. (Hearing Bd. Report at 23.) It noted that she “acknowledged her misconduct and did not attempt to justify, excuse, or minimize her actions.” (Id.) It found it “evident from her testimony and demeanor [that] she recognizes the seriousness of her misconduct, regrets her actions, and was extremely ashamed and remorseful.” (Id.) It also found it evident that “she has been deeply affected by these proceedings and has used this process as an opportunity to learn from her mistakes.” (Id.)

While we by no means condone Respondent’s misconduct, which was serious and unacceptable, we believe, as did the Hearing Board, that Respondent made a mistake that she will not repeat. We find compelling that Respondent has taken responsibility for her actions and expressed deep and sincere remorse for her conduct. We believe that, but for her mistake, which we acknowledge was a grave one, Respondent appears to be an exemplary young lawyer.

Under the circumstances of this matter, then, we believe that a suspension – even a short one – is not necessary to achieve the goals of attorney discipline. Rather, taking into account that the purpose of a sanction is not to punish the attorney but to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach, Timpone, 157 Ill. 2d at 197, we believe that the sanction of censure is sufficient to serve the goals of attorney discipline.

The misconduct

 Between April and August 2014, Respondent received security retainers from five clients in separate matters and deposited them into her client trust account. During the time when she should have been holding all or part of the retainers because she had not yet earned fees equal to the retainers, she drew funds from her client trust account for her own business or personal expenses, thereby using without authorization a portion of the funds she should have been holding on behalf of her clients.

Respondent used a total of $4,354.07 of her clients’ funds. Her clients were not aware that she used portions of their security retainers before she earned them. She restored the funds she had taken before the Administrator commenced his investigation into her conduct. Clients who requested that she return the unearned portion of their retainers received their funds without delay.

No client had been harmed or complained.

Richard Green dissented

I agree with my colleagues, and therefore join in their majority opinion, in all respects except their ultimate sanction recommendation. I believe that a 30-day suspension, as recommended by the Hearing Board, would be a more appropriate sanction for Respondent’s misconduct under the facts involved here.

I find that Peters provides a useful parallel to this case, in circumstances as well as reasoning. Here, as in Peters, Respondent’s misconduct appears to be an aberration in what we hope will be a long and unblemished career. But, because Respondent knowingly violated her obligations and used client funds, “protection of the integrity of the legal profession demands that Respondent receive a sanction greater than ? censure.” Peters, 2012PR00048 (Review Bd.) at 4. As in Peters, I believe a 30-day suspension “is consistent with the purposes of discipline while making it clear to attorneys that they will face sanctions if they misuse their clients’ funds.” Id. at 5.

Absolute honesty in an attorney’s handling of clients’ money is essential. Therefore, any dishonest taking of a client’s money should merit some suspension, even in a matter like this one where there is extensive mitigation. For this reason, I would recommend that Respondent be suspended for 30 days for her misconduct.

The Administrator sought a six-month suspension. (Mike Frisch)