May 17, 2011
"Deliberate Avoidance" No Substitute For Intent
The Illinois Review Board has recommended a three-year suspension with the last year stayed in a case where it reversed some of the Hearing Board's conclusions and rejected its proposed sanction.
The Review Board summarized its determinations:
The Administrator charged [the attorney] with conversion and dishonesty related to his mishandling of funds deposited in his client trust account purportedly for the use of one of his clients who, unbeknownst to [him], was engaged in a fraudulent investment scheme. [He] was also charged with employing a disbarred attorney. [He] denied that he committed any misconduct.
The Hearing Board found that [the attorney] converted funds, engaged in dishonest conduct by acting with deliberate indifference to his client's fraudulent activities, assisted a non-attorney in the unauthorized practice of law, and engaged in conduct that prejudiced the administration of justice or tended to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Hearing Board recommended that [the attorney], who has been disciplined previously, be suspended for three years and until further order of the court.
On review, [the attorney] argued that the evidence did not support the findings of dishonesty, conversion, or conduct that tends to bring the legal profession into disrepute. He further argued that the Hearing Board's recommended sanction is too harsh. The Administrator contended that [he] should be disbarred.
The Review Board recommended that the Hearing Board's finding of dishonest conduct be reversed. In so doing, the Review Board declined to apply the "deliberate avoidance" standard when considering [the attorney's] intent. The Review Board recommended that the Hearing Board's remaining findings of misconduct be affirmed and that [his] license be suspended for three years, with the last year of suspension stayed by one year of probation. One member of the Review Board Panel, specially concurring, expressed that misconduct implicating client trust accounts should not be charged as "conversion," which is not defined in the Rules of Professional Conduct, but should be prosecuted under the specific provisions of Rule 1.15.
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