Ignorance No Excuse

An experienced attorney who collected unreasonable fees and mishandled multiple matters should be suspended for 90 days, according to a hearing board report from Illinois.

The attorney was admitted in 1978 and had no prior discipline.

One matter involved a contingent fee in a workers’ compensation matter

We note that Respondent claimed he was not aware of  the requirement that all contingent fee agreements are to be in writing. (Tr.  572, 676). We find it difficult to believe that an attorney who has practiced  law since 1978 and whose practice has included hundreds of personal injury and  workers’ compensation cases did not know that contingent fee agreements must be  in writing. Nevertheless, it is well established that an attorney’s ignorance of  the ethical rules is not a defense in a disciplinary case. See In re  Gerard, 132 Ill. 2d 507, 537-38, 548 N.E.2d 1051 (1989); In re Cheronis,  114 Ill. 2d 527, 535, 502 N.E.2d 722 (1986). We point out that we are not  finding Respondent engaged in misconduct by violating Rule 1.5(c) because he was  not charged with a violation of that Rule. Rather, we find that Respondent  obtained an unreasonable contingent fee, in violation of Rule 1.5 (a) as charged  in the Second Amended Complaint, based upon the fact that there was no written  contingent fee agreement with Simpson as required by Rule 1.5(c).

As to sanction

The Respondent’s misconduct is serious. He obtained  unreasonable fees from two clients (Counts I, V); he attempted to obtain an  unreasonable fee from another client (Count VI); he failed to adequately communicate with and keep  clients informed in three matters (Counts I, II, III); he acted with dishonesty  and deceit in three matters (Counts I, II, V); and he neglected the cases of two  clients (Counts II, III).

Respondent’s misconduct is aggravated by the fact  that there was a pattern of misconduct, involving five clients and five  different matters, over the course of several years. Also, his misconduct was  harmful to his clients. His misconduct caused the lawsuits of two clients to be  dismissed and their claims to be time-barred. (Counts II, III). Further, he has  denied two clients the use of funds since 2008 and 2010, respectively, when he  obtained unreasonable fees from them (Counts I, V).

 There is also mitigation. Respondent has practiced  law since 1978 without having been previously disciplined. A character witness  testified as to the Respondent’s favorable reputation for truth and veracity. It  also appears that Respondent was cooperative during his disciplinary  proceedings. We further find that the Respondent did not intentionally cheat his  clients by taking unreasonable fees. It appears he actually believed, although  mistakenly, that he was entitled to those fees based upon, what he thought, was  outstanding representation and service to his clients. Other misconduct was  causally connected to his large caseload. He forgot about the cases of two  clients and he seemed to be in the habit of simply assuring clients things were  going well without taking the time to look at their files. He also relied on his  memory as to what occurred or what he said when he spoke with clients, without  having any contemporaneous records. While the foregoing conduct, of course, is  not acceptable and cannot be tolerated in the attorney-client relationship, it  falls short of demonstrating a corrupt or evil motive.

We believe that a suspension coupled with the  payment of restitution is the appropriate sanction in this case. However, we  believe a suspension of one year would be excessive and have a substantial adverse impact on his law practice. A  suspension of 90 days is sufficient to impress upon Respondent the seriousness  of his misconduct and to emphasize that he must not engage in  further misconduct.

(Mike Frisch)