Friday, December 26, 2008

Charges Not Proven

In a case where the Administrator had charged an attorney with ethics violations for failure to disclose a material fact in representing a client in a real estate transaction, the Illinois Review Board agreed with a hearing board conclusion that the charges had not been proven and set out its standard of review of such a no-misconduct finding:

...in seeking to have the Review Board overturn the Hearing Board’s factual findings of no misconduct, the Administrator faces an extremely high two-pronged burden. First, the Administrator must convince the Review Board that, in its opinion, he proved the misconduct charged by clear and convincing evidence. Second, he must establish that, despite the Hearing Board’s determination that such a burden was not met, the opposite conclusion is clearly evident.

This two-fold difficult burden should be contrasted to that of a respondent who challenges Hearing Board findings of misconduct. A respondent has no burden to prove anything, let alone by a clear and convincing standard. A respondent who challenges factual findings on review must establish only that the Hearing Board’s factual findings are against the manifest weight of the evidence.

In this case, the Administrator’s arguments at best demonstrate that certain circumstances raise suspicion. However, suspicious circumstances are not sufficient to meet the Administrator’s burden of proof. Winthrop, 219 Ill. 2d at 550, 848 N.E.2d 961, 302 Ill. Dec. 397. That an opposite conclusion is possible, but not clearly evident, does not allow for a reversal of the Hearing Board’s factual findings. Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397.

Based on the facts presented in this case, the Hearing Board found that the Administrator did not prove, by clear and convincing evidence, that [the attorney]acted with an intent to deceive or that his conduct rose to the level of an ethical violation. That finding is not against the manifest weight of the evidence. As the Hearing Board noted, this decision should not be taken as approval of a failure to highlight significant changes in documents sent to opposing counsel. However, as this case demonstrates, every failure of counsel to highlight significant document changes does not involve the violation of a rule of professional conduct.

(Mike Frisch)

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