An Illinois Hearing Board recommends a reprimand of an attorney found in violation of one of three charged rules
The Administrator filed a Complaint alleging that Respondent, in the course of representing as client in a divorce matter, entered into a business transaction with the client on terms that were not fair and reasonable and without obtaining the client’s informed consent; improperly acquired an interest in property that was the subject of the divorce litigation; and communicated with a person represented by counsel. The Hearing Board found that Respondent acquired a proprietary interest in property that was the subject matter of litigation in violation of Rule 1.8(i), but did not engage in any other misconduct. The Hearing Board recommended Respondent be reprimanded.
The alleged unauthorized communication took place at the signing of a quitclaim deed
We do not believe the Administrator established that a “communication” about the subject of the representation occurred. Respondent and Enos were present when Christine appeared at Respondent’s office and gave nearly identical accounts as to Respondent’s very limited interaction with Christine, which consisted only of admonishing her that she should not be at the office. When Christine insisted she was there at her counsel’s direction to sign a quitclaim deed, Respondent removed herself from the area and left the matter in Enos’ hands. Although Respondent knew Enos would provide the deed to Christine for her signature, we consider that act to be nothing more than ministerial in nature, as was the task of taking identification and notarizing Christine’s signature. We saw no evidence that any substantive discussion occurred between Enos and Christine, any advice was given, or any information was disclosed with respect to the deed or any other aspect of the Schaefers’ divorce.
Further, we cannot conclude with certainty that [her counsel] Mehta did not consent to Christine’s being at Respondent’s office to sign a deed. While Mehta denied doing so, the timing of Christine’s visit — a day after Respondent and Mehta appeared in court together — is too coincidental to ignore. Both Respondent and Enos recalled Christine’s insistence that she was there at her counsel’s direction, and we saw no indication that anyone other than Mehta would have directed Christine to Respondent’s office.
We heard conflicting testimony as to Respondent’s interaction with Mehta after Christine signed the deed. Respondent testified she ran into Mehta the following day and confirmed that Mehta had directed Christine to go to Respondent’s office to sign the deed. Mehta did not recall that discussion and denied receiving a copy of the quitclaim deed after the fact. She did, however, acknowledge knowing in August 2016 that Christine had signed the deed.
The burden is on the Administrator to prove the elements of Rule 4.2 by clear and convincing evidence. In this instance that burden was not met. We conclude that neither Respondent’s nor Enos’ minimal interaction with Christine constituted a communication about the subject of the representation. Further, in the face of testimony and circumstances that point to Christine appearing at Respondent’s office at her counsel’s direction, we cannot conclude with certainty that Respondent did not have Mehta’s consent to accomplish a very limited task.
As to the business transaction rule
Respondent, through her company KNSY, entered into a business transaction and obtained an ownership interest in the property of her client Gerald Schaefer by taking title to the Galewood property. The Administrator alleged the terms of the transaction were not fair and reasonable, and were not properly disclosed so Gerald could give hs informed consent.
We find the requirements of Rule 1.8(a) were satisfied. Respondent testified she came up with the idea of having KNSY take title to the Galewood property as a way to aid her client, who had not been able to divest himself of property he did not want and could not afford. The evidence showed that prior to inserting her company’s name on the quitclaim deed signed by Gerald and the other titleholders, she discussed her proposal with him and explained her intent to assume the mortgage and rehab the property for resale.
Rule 1.8(i)
Although we found in the prior section that Respondent did not violate section (a) of Rule 1.8, we find, by clear and convincing evidence, that she violated section (i). The disposition of marital property, such as a marital home, is a primary subject of divorce proceedings. Therefore, when Respondent took title to the Schaefers’ home through her company KNSY, she clearly acquired an interest in the subject matter of the litigation she was handling for Gerald. The rule does not leave room for interpretation. Cf. In re Kesinger, 2015PR00042, M.R.28530 (March 20, 2017) (attorney violated Rule 1.8(i) by purchasing clients’ home that was the subject of foreclosure litigation the attorney was handling).
The attorney presented impressive character evidence, pro bono work and has never been disciplined since her 1999 admission
A Circuit Court judge and three attorneys testified to Respondent’s strong reputation for honesty and truthfulness in the legal community, and confirmed her involvement in charitable and community activities. Several of the witnesses testified to their high personal opinion of Respondent’s character and stated their opinion would not change if she were found to be in violation of the professional rules. Each of the attorneys has referred cases to Respondent.
(Mike Frisch)