Tuesday, April 26, 2011

Aggravating Factors

An Illinois Hearing Board has recommended a one-year suspension of an attorney who engaged in a wide array of serious ethics violations that included conflicts of interest and dishonesty to courts. The board summarized its findings:

The misconduct charged and proved in this case was extremely serious. On various occasions between December 2003 and June 2008, the Respondent engaged in misconduct involving several clients. He had a conflict of interest in client matters (Counts I, II, IV, V, VI, VII, IX). In fact, he took affirmative steps directly adverse to the interests of his clients by recording the memorandums of judgment without his clients' knowledge or consent. He breached his fiduciary duty to his clients (Counts I, IV, V, VI, VII, IX). He failed to explain matters so that his clients could make informed decisions (Counts I, III). Additionally, the Respondent engaged in dishonest and deceitful conduct toward clients and courts (Counts II, III, IV, V, VI, VII, VIII, IX).

The board found significant mitigation. A number of judges had testified favorably about the attorney's character.

But there were aggravating factors as well:

The Respondent did not voice nor show any remorse for the impact his actions have had on his clients or on the legal profession. The lack of remorse is an aggravating factor....

The Respondent was previously disciplined. In 1994 he received a censure for misconduct that occurred in the 1970s. The misconduct in the Respondent's current disciplinary case began in 2003, about 9 years after he had been previously disciplined. In determining whether prior discipline is a significant aggravating factor, the nature of the prior misconduct, that is whether it was similar to the current misconduct, and the length of time between the prior discipline and the current misconduct, are to be considered...

Although there was about 9 years between the Respondent's prior discipline and the time his current misconduct commenced, there are significant similarities between the Respondent's prior misconduct and his current misconduct. The Respondent's prior misconduct arose from his preparing wills and a codicil for a client in which the Respondent received bequests. By doing so, he represented a client while he had a conflict of interest, without the client's consent following full disclosure. The Respondent failed to advise his client of the conflict of interest or of the possible effects of the conflict. Additionally, the Respondent acknowledged that he did not recognize that a conflict of interest existed. The Respondent's current misconduct also involved conflicts of interest and failing to advise clients of the conflict or the nature thereof. Additionally, the Respondent has again failed to recognize he had conflicts of interest with his clients. Based upon the similarity between the nature the Respondent's prior misconduct and his current misconduct, we find that the Respondent's prior discipline is an aggravating factor for us to consider.

Another aggravating factor is the harm or reasonable risk of harm an attorney's misconduct caused.

All in all, a lot of misconduct for a one year suspension. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/04/an-illinois-hearing-board-has-recommended-a-one-year-suspension-of-an-attorney-who-engaged-in-a-wide-array-of-serious-ethics.html

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