Friday, January 23, 2009

Upward Adjustment In Sanction

The Illinois Review Board concluded, contrary to the finding of a hearing board, that a lawyer had made a material misrepresentation to a tribunal in addition to instances of neglect, failure to withdraw and other misconduct. The attorney had undertaken representation of injured plaintiffs who had been robbed of the proceeds of thier structured settlements in the failure to withdraw case. The hearing board had proposed a suspension for one year.

As a result of the misrepresentation, the review board recommended the sanction sought by the Administrator of a two year suspension:

Ducey has no significant factors in mitigation, as the positive testimony that he presented about his character was contradicted by the testimony of two of the Administrator's witnesses that his reputation for truth and veracity in the legal community was "extremely poor" and "extremely negative."

Based on the serious nature of Ducey's misconduct and the significant factors in aggravation, we conclude that a two-year suspension is warranted. Recently, in In re Kearns, No. 04 CH 80 (Hearing Board, Dec. 13, 2006), petition for leave to file exceptions allowed, No. M.R. 22495 (Sept. 17, 2008)) the supreme court suspended an attorney for two years and until further order of the court for employing an alien not authorized to be employed in the United States, counseling or assisting a client in engaging in illegal conduct, making false statements in an immigration application on behalf of a client, engaging in a conflict of interest, improperly using confidential client information, engaging in the unauthorized practice of law, neglecting two client matters, and failing to promptly turn over a client's file.

Unlike Ducey, Kearns engaged in criminal conduct. Kearns is relevant, however, because of the Hearing Board's focus on Kearns' false statements as well as the fact that Kearns involved numerous types of misconduct and several client matters. See also In re Vickers, 00 SH 77, M.R. 18384 (November 26, 2002) (two-year suspension until further order of court for neglecting two matters, engaging in the unauthorized practice of law, and failing to communicate with clients); In re Thebeau, 111 Ill.2d, 251, 489 N.E.2d 877 (1986) (two-year suspension for notarizing signatures that were not witnessed, misrepresenting facts to a court, and knowingly permitting client to commit forgery). Considering the nature and totality of Ducey's conduct, we conclude that a suspension of two years is necessary to protect the public, maintain the integrity of the legal profession, and caution other attorneys against engaging in similar misconduct.

We further determine that, like Kearns and Vickers, Ducey's suspension should run until further order of the court. The Hearing Board declined to recommend a suspension until further order of the court, concluding that Ducey is capable of understanding and following the rules of ethics if he chooses to do so. However, at the time the Hearing Board made its recommendation, Ducey was not under suspension for other misconduct as he is now. Additionally, based on the record and Ducey's conduct in these disciplinary proceedings, it is evident he does not appreciate the seriousness of his misconduct. Unlike the Hearing Board, we are not confident that Ducey will choose to conform his conduct to the rules of ethics. For these reasons, we are left with the firm conviction that Ducey should not be allowed to return to practice until he has demonstrated to the supreme court that he is capable of and committed to practicing law in an ethical manner.

As we have seen in prior bar discipline cases, the "conduct in [the] disciplinary proceeding" can play a major role in the bottom line sanction. (Mike Frisch)

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