Monday, November 15, 2010
An Illinois Hearing Board has recommended a stayed six-month suspension with one year of probation in a matter involving the misuse of entrusted funds. The board found that the absence of a dishonest intent was a mitigating factor:
There is considerable mitigation in this case. The fact that the Respondent did not act with a dishonest intent or invidious motive is a significant mitigating factor. Also, the Respondent admitted the facts underlying his misconduct, acknowledged he misappropriated [the client's] funds, and accepted responsibility for the misconduct. His misconduct occurred in regard to only one client matter. The Respondent has been licensed to practice law since 1993 and has not been previously disciplined. Additionally, a judge and four attorneys gave favorable character testimony on behalf of the Respondent. The misconduct was not committed at a time when the Respondent was having financial difficulties. Instead, the Respondent showed that he had adequate funds in other accounts to repay the amount converted. See Mayster, 99 CH 59 (Review Bd. at 9-10). Finally, the Respondent attended a course presented by the ARDC, and he testified that he has implemented record keeping procedures in his office.
Although the Respondent acted without a dishonest intent, it is apparent that his misconduct was the direct result of his continuing failure to maintain adequate records for his trust account and for his client matters. The Respondent became a solo practitioner and opened a client trust account in the year 2000. However, he never reconciled his trust account for more than eight years. He began reconciling the account only after he became aware of the ARDC investigation of him in July 2008. Even though he received monthly bank statements for his trust account, he did not review them. He kept no ledger for his trust account. Rather, the Respondent testified that his "system" for keeping track of the funds in his trust account was "in [his] head," his "memory" or a "note or something."(Tr. 55-56, 63). He had no records that would enable him to subsequently determine to which case or client transfers from his trust account were attributable. The Respondent did not attend any course or obtain any information in regard to properly maintaining trust account records until after the Complaint was filed in this matter. Furthermore, the Respondent did not have adequate records of client matters, as shown by the fact that [the client's] case, including the court order to deposit her funds with the Circuit Clerk, "just slipped off [his] radar." (Tr. 48).