Thursday, January 15, 2009
An Illinois hearing board has recommended that two brothers who practice together as a firm be censured for the negligent conversion of client funds but rejected charges of dishonest conduct:
Regarding all counts, we find that Respondents committed technical conversions. We find that Respondents actions were neither willful nor reckless. We find Respondents' testimony very credible in that they failed to maintain proper bookkeeping practices. However, we also find their testimony credible in that they did not intend to convert client funds. The evidence shows that Respondents had no motive to intentionally commit conversion. The evidence shows that Respondents did not benefit from the technical conversions which took place. The evidence shows that Respondents were engaged in a very profitable law practice as well as access to a credit line if a financial need existed. We also find that issuing the $9,400 check from the client trust account was the appropriate account from which to draw a client check. We find that Respondents fully expected that their client would repay the money they paid on his behalf. We find that the technical conversions occurred due to Respondents' sloppy bookkeeping practices. Therefore, we find that the Administrator failed to meet his burden of proof by clear and convincing evidence that Respondent's engaged in conduct involving dishonesty, fraud deceit or misrepresentation. Therefore, we recommend that all allegations regarding the violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct be dismissed. We find that Respondents' misconduct, committing technical conversions, is conduct which tends to defeat the administration of justice and brings the legal profession into disrepute. Therefore, we find that Respondents violated Supreme Court Rule 770
As to sanction:
Here, we have determined that Respondents have committed conversion. We also have found that Respondents did not have a dishonest motive when they engaged in the misconduct. Given the proven misconduct, we must consider any evidence offered in aggravation and mitigation. There was no evidence offered in aggravation. There was no evidence offered showing that any clients were harmed by Respondents' wrongdoing. There was, however, significant mitigating evidence. Respondents have practiced law in Illinois for almost 20 years and have not been previously disciplined. At the hearing, Respondents admitted wrongdoing and expressed remorse. Respondents have fully cooperated throughout the disciplinary process. Respondents submitted character witnesses that testified to Respondents' good reputation for truth and veracity. Respondents testified to the steps they have taken to improve bookkeeping and accounting practices. Finally, Respondents have completed the ARDC Professional Responsibility course. Based on the foregoing, we recommend that both Respondents be censured.
The administrator had sought a one year suspension with all but 90 days stayed and probation for two years. (Mike Frisch)