August 1, 2011
The Ostrich Approach
An Illinois attorney faces a proposed suspension of a year and until further order ("UFO") as a result of findings that he assisted a suspended and later disbarred lawyer in continuing to practice:
The admitted facts and additional evidence presented in this case demonstrate that Respondent engaged in serious misconduct. Respondent entered into a working relationship with an attorney who was suspended from the practice of law and then continued that relationship after the attorney was subsequently disbarred. The facts indicate that the disbarred lawyer, Mr. Mattes, continued to hold himself out as an attorney notwithstanding his disbarment and continued to engage in activities that constituted the practice of law. They also show that, for a period of about six months, Respondent continued to work out of the same offices as Mr. Mattes, to draw his salary from Mr. Mattes, and to receive client referrals from Mr. Mattes. Respondent's conduct was clearly improper and violated well-established ethical prohibitions on assisting a disciplined attorney in the unauthorized practice of law. See In re Kuta, 86 Ill. 2d 154, 161-62, 427 N.E.2d 136 (1981); In re Discipio, 163 Ill. 2d 515, 525-26, 645 N.E.2d 906, 911 (1994).
The facts also show that Respondent improperly shared fees with Mr. Mattes during the course of this arrangement by making various payments to him. The Court has harshly condemned such working arrangements, especially where they include improper fee sharing, noting that "[i]mproper fee-splitting is a serious transgression that harms both the public and the legal profession." Discipio, 163 Ill. 2d at 529. Respondent's activities not only violated the Rules of Professional Conduct, but also the specific provisions of Supreme Court Rule 764 which sets forth in detail the "Duties of Disciplined Attorneys and Attorneys Affiliated with Disciplined Attorneys."
There are also several factors in this case that add to the seriousness of Respondent's misconduct. First, the admitted facts show that Respondent continued to participate in this working arrangement after he clearly knew or should have known that it was improper. While it is possible that Respondent was not aware of Mr. Mattes' disciplinary status when he was initially hired, the facts indicate that he learned about his subsequent disbarment shortly after it became effective. Nonetheless, he continued the improper working arrangement for another six to eight months. Second, the admitted facts demonstrate that Respondent attempted to disguise his improper fee sharing by falsely designating payments that he made to Mr. Mattes as "rent" or "back rent." As a result, his misconduct also included an element of dishonesty and deceit in violation of Rule 8.4(a)(4).
In aggravation, we note Respondent's lack of participation in his own disciplinary proceeding...
No matter what the alleged misconduct, it only makes matters worse to fail to participate in the bar proceedings. (Mike Frisch)
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