Tuesday, June 16, 2009

"Each Case Is Unique"

The Illinois Supreme Court imposed a two-year suspension of an attorney on review of the Review Board's proposed six-month suspension. The attorney had engaged in a number of violations included neglect of an estate for 17 years. The court rejected the Administrator's exception to the board's failure to find dishonesty in the lawyer's review of a judge's tax returns while appearing before the judge and his failure to so advise opposing attorneys:

... in a case where the respondent was initially charged with violating Rule 8.4(a)(4), and a violation was not found, this court came to that conclusion after determining there was no evidence the misconduct in that case was intentional. See In re Witt, 145 Ill. 2d 380 (1991) (where the court found that there was no violation of Rule 8.4(a)(4), because it was not persuaded that the respondent's silence was intended to perpetrate a fraud).

Thus, we cannot say that the Hearing Board's finding that Cutright did not violate Rule 8.4(a)(4) is against the manifest weight of the evidence. Cutright acknowledges that he should have made certain disclosures to opposing counsel on those cases in which he appeared before Judge Cochonour. However, there is no evidence that Cutright ever received any money or favorable treatment in exchange for his preparation of Judge Cochonour's tax returns. Nor did he make any false statements or misrepresentations regarding his preparation of the tax returns. Cutright's initial decision to review the tax forms was based on his belief that he was reviewing the returns in conjunction with his work on the estate of Clark Cochonour.

There is essentially no way to define every act or form of conduct that would be considered a violation of Rule 8.4(a)(4). Each case is unique and the circumstances surrounding the respondent's conduct must be taken into consideration. That being said, based on the circumstances in this case, we decline to reverse the findings of the Hearing Board and the Review Board to conclude that Cutright violated Rule 8.4 (a)(4).

The court weighed the aggravating and mitigating evidence in accepting the argument that the six-month suspension was insufficient:

In mitigation, Cutright had no disciplinary record prior to the complaint filed in this case. Cutright testified as to his previous community involvement and his pro bono work with the Land of Lincoln Legal Assistance Foundation. He also presented six character witnesses at his hearing: three judges, two lawyers and a member of his community, all of whom testified that Cutright had a good reputation for honesty and integrity in the legal community. He also completed a professionalism seminar at the Illinois Professional Responsibility Institute and cooperated in the disciplinary proceeding.

However, in aggravation, we recognize that Cutright's misconduct was ongoing and arose out of three separate acts involving multiple clients. Cutright also did not appear to realize the wrongfulness of his actions. In regard to the Hayden estate, Cutright believed that he was merely doing what his client asked him to do. In the Carpenter estate, although there was no activity in the case for several years, Cutright believed that he was doing what was best for the estate. Additionally, Cutright's misconduct caused financial harm to the estates of both Hayden and Carpenter.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/06/the-illinois-supreme-court-imposed-a-two-year-suspension-of-an-attorney-on-review-of-the-review-boards-proposed-six-month-sus.html

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