Tuesday, March 17, 2009
An attorney whose previous disciplinary case made him famous--James Himmel--is the subject of fresh findings of misconduct by an Illinois hearing board. Unlike the groundbreaking case imposing discipline for failure to report the misconduct of his client's prior counsel, the present case involves garden variety neglect:
Based on the evidence and Respondent’s admissions, we find by clear and convincing evidence that Respondent failed to act with reasonable diligence and promptness in representing the Magers in violation of Rule 1.3 of the Illinois Rules of Professional Conduct. Respondent admitted that he failed to perform any legal services on behalf of the Magers. Respondent failed to open and review correspondence between himself and the Magers. Respondent admitted that he failed to respond to the Magers’ many requests for information. Respondent admitted that he allowed the statute of limitations pass on the Magers’ claim without diligent representation. We also find by clear and convincing evidence that Respondent failed to keep the Magers reasonably informed as to the status of their matter. Therefore, we find that Respondent violated Rules 1.3 and 1.4(a) of the Illinois Rules of Professional Conduct.
We find that the Administrator failed to meet his burden of proof by clear and convincing evidence that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. The evidence shows that Mr. Mager believed that Respondent had filed a lawsuit on his behalf. We believe that Mr. Mager believed that a lawsuit was filed. Mr. Mager stated that Respondent told him that the "Will County Sheriff was not doing his job and had not served the defendant." He also stated that Respondent told him that he had to "be patient because the wheels of justice turn slowly." Mr. Mager did not state that he believed his complaint was filed based on these statements. Therefore, based on the way the allegation of misrepresentation is written and the evidence failing to show that Respondent actually told Mr. Mager that he filed a complaint of his behalf, we find that the evidence is insufficient to prove that Respondent engaged in misrepresentation. Further, we recommend that the allegation that Respondent violated Rule 8.4(a)(5) of the Illinois Rules of Professional Responsibility be dismissed.
The hearing board recommends a 30 day suspension. (Mike Frisch)