Wednesday, October 19, 2011

Third Times No Charm

An Illinois Hearing Board has recommended the disbarment of an attorney who was the subject of a third disciplinary proceeding.

The board discussed the relationship between the three matters in connection with sanction:

The misconduct at issue here involved misuse of client funds during 2001, extending into 2002 as to one count, Count XX. The misconduct in Milks II occurred primarily in December 2001, post-dating most of the misconduct at issue in these proceedings. However, Respondent is still properly considered a recidivist. This is his third disciplinary proceeding. The misconduct which led to Respondent’s suspension in Milks I predated the misconduct in both this case and Milks II.

In addition, Milks I was pending and discovery and prehearing proceedings were being conducted in 2001. The fact that Respondent engaged in his current misconduct while another disciplinary proceeding was pending against him is a serious aggravating factor. Milks, 05 CH 44 (Review Bd. at 15); In re Davies, 01 CH 60, M.R. 18141 (Sept. 19, 2002).

The misconduct in Milks I primarily involved solicitation and assisting non-lawyers in the unauthorized practice of law. Milks, 99 CH 20. This is serious misconduct, though different from Respondent’s current misconduct. However, Milks I also included misconduct similar to that here, arising out of Respondent’s failure to properly disburse settlement funds.

In addition, since conduct for which Respondent was disciplined in Milks I included failure to maintain records, his current claims that he destroyed files and, therefore, did not have them available for use in his defense are particularly disingenuous. Further, the discipline in Milks I would have required Respondent to maintain these records. S.Ct. R. 764(a).

Most of the misconduct for which Respondent was disciplined in Milks II involved mishandling of funds belonging to two clients. Essentially Respondent paid each client one-third of the proceeds he had received for her and retained most of the balance. Most of the misconduct in this case predated the misconduct in Milks II. However, Respondent should have learned something from Milks II about the proper way to handle client funds. Unfortunately, as demonstrated by his testimony in this matter, it does not appear that Respondent learned anything, as it is clear he still does not understand how an attorney is to handle client funds.

(Mike Frisch)

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