Monday, January 29, 2018

Where There's A Will There May Be A Due Process Violation, Says Illinois Review Board

The Illinois Review Board recommends a two-year suspension of an attorney

The Administrator charged Respondent in a two-count second amended complaint with preparing a will that named Respondent's two children as beneficiaries, and with mishandling and dishonestly misappropriating client funds. Following a hearing at which Respondent was represented by counsel, the Hearing Board found that the Administrator had proven some but not all of the charged misconduct. It recommended that, for his misconduct, Respondent be suspended for two years.

Respondent filed exceptions. On appeal, he contends that Count I of the Administrator's complaint failed to give him fair notice of the charges against him, and that the Hearing Board's findings of misconduct in connection with both counts were against the manifest weight of the evidence. He also challenges its sanction recommendation. He asks this Board to dismiss the charges against him, or, in the alternative, to recommend a less severe sanction.

For the reasons that follow, we reverse the Hearing Board's finding of misconduct as to Count I. A majority of this Review Board panel affirms the Hearing Board's findings of misconduct as to Count II and agrees with its recommendation that, for his misconduct, Respondent should be suspended for two years. One member of this panel dissents, finding that the Hearing Board's findings of fact and of misconduct in connection with Count II are against the manifest weight of the evidence, and recommending that the entire complaint against Respondent be dismissed.

The attorney was admitted in 1981 and has been in solo practice since 1999 focused on family law.

All of the misconduct with which Respondent was charged arose out of his relationship and dealings with Glenn Burren, who died in 2007. The Hearing Board's report describes their relationship in detail; we summarize it here.

Respondent met Mr. Burren in 1976 when Respondent began dating Mr. Burren's daughter, Marion. After Respondent and Marion stopped dating a few years later, Respondent and Mr. Burren maintained their close relationship. It is undisputed that, for three decades, Mr. Burren was essentially a member of Respondent's family - long-term partner to Respondent's mother, and like a father to Respondent and grandfather to Respondent's two children. Mr. Burren also had three children of his own from an earlier marriage - a son, Glenn Jr., who died in 2006; daughter Marion; and another daughter, Linda.

In addition to his close personal relationship with Mr. Burren, Respondent represented Mr. Burren in three real estate transactions. The first was in 2000, when Respondent represented Mr. Burren in the closing of the sale of property in Chicago on Winona. Also in 2000, Respondent represented Mr. Burren in the closing of the purchase of a house in Des Plaines, which Mr. Burren bought in joint tenancy with his daughter Linda. The last one occurred in 2003 when Respondent, who was hired by Mr. Burren's sister, Pearl, to handle the sale of a house that she and Mr. Burren owned in joint tenancy, completed the closing after Pearl died, leaving Mr. Burren as sole owner.

In 2006, at Mr. Burren's request, Respondent filled out three power of attorney forms for Mr. Burren. The forms named Respondent as Mr. Burren's agent for health care and property. Respondent testified that he did not consider filling out the power of attorney forms as legal work because he only filled out the blanks on the forms.

Respondent also assisted Mr. Burren with his finances...

The will

In November 2003, Mr. Burren's sister Pearl died, and Mr. Burren, who was of modest means until then, received over $600,000 from Pearl's estate. Mr. Burren asked Respondent to help him with a will in which he planned to name Respondent's mother as a beneficiary. Respondent declined, telling Mr. Burren that he could not do that, and suggested Mr. Burren contact another attorney. Mr. Burren contacted attorney Ross Miller, with whom Respondent had previously worked. Mr. Miller drafted a will for Mr. Burren, and sent it to Mr. Burren with a cover letter dated December 31, 2003 that instructed Mr. Burren to contact Respondent "to do the execution." Respondent was copied on this letter.

On January 6, 2004, during a joint birthday party at Respondent's house for Respondent's son and Mr. Burren, Mr. Burren executed the will, with Respondent's mother, Nancy Miner, and another party guest, Walter Hladko, as witnesses. According to the testimony of both Respondent and Mr. Hladko, Respondent did nothing more than tell the witnesses where to sign the will and notarize a trust.

The will bequeathed 40 percent of Mr. Burren's estate to Respondent's children, Steven and Katy. It bequeathed the remaining 60 percent of Mr. Burren's estate to his own three children. It also contained a provision stating: "I appoint my attorney, Steven A. Miner, executor of this will."

Mr. Burren kept the will after it was executed but gave it to Respondent in June 2007, when he was in the hospital. After Mr. Burren died in July 2007, Respondent initiated probate proceedings in Cook County Circuit Court. Mr. Burren's children contested the validity of the will and sought to recover assets that they claimed Respondent had taken. The judge found the will to be null and void on grounds of undue influence, and ordered Respondent to pay the estate almost $500,000 plus $217,000 in interest. Respondent appealed. The circuit court's judgment was affirmed in July 2013. Respondent paid the judgment and the estate was closed.

The Review Board also sets out Respondent's involvement in Burren's financial affairs and finds dishonest conduct.

The will charges violated his due process notice rights

Count I of the second amended complaint was entitled "Preparation of an instrument of substantial gift from a client," and the charges in that count were based on the allegations that Respondent "prepared a last will and testament" and "devise[d] and prepare[d] a personal estate plan" for Mr. Burren. (2d Am. Complt. pars. 1, 3 (emphasis added).) Based on those allegations, the Administrator charged Respondent with violating Rule 1.7(b) by "representing a client when the representation may be materially limited by the lawyer's own interests, because Respondent's estate planning advice to Burren was materially limited by his interest in providing bequests to his own children." (Id. par. 10(b).)

The Hearing Board found that the Administrator failed to prove that Respondent had prepared Mr. Burren's will, but nonetheless found that he violated Rule 1.7(b) because of his "active involvement" in the execution of the will and because he functioned as the "attorney supervising execution of the will." (Hearing Bd. Report at 12, 14.) Respondent contends that he should not be disciplined for his role in the will's execution when the complaint alleged that he prepared the will and prepared and devised an estate plan for Mr. Burren. We agree...

The Hearing Board's labeling of Respondent's actions as "active involvement" in or "supervision over" the will's execution does not justify disciplining him for those actions when they were not alleged in the complaint. Respondent's role during the execution of the will - which, based on the evidence of record, appears to be limited to hosting the party at which the will was executed, pointing out the signature lines on the will, and notarizing a trust - does not equate to "preparing" the will or "devising and preparing" an estate plan.

The Administrator argues that the complaint alleged that the will was executed, and that the Administrator's counsel, in her opening statement, stated that Respondent drafted and executed a will for Mr. Burren. The Administrator thus contends that "a fair reading" of the complaint indicates that the conflict-of-interest charge against Respondent included not just drafting the will but also presiding over its execution.

We disagree. There is nothing in the complaint that would have notified Respondent that he was being accused of engaging in a conflict of interest by being present during the execution of the will. It seems to us that a reasonable person in Respondent's position would have believed that he was being charged with misconduct arising out of preparing the will, and would have defended himself against those charges by showing that he did not prepare the will. This, in fact, appears to be what Respondent did. To then discipline him for conduct that was not alleged and against which he could not defend violates the principles set forth in RuffaloChandlerDoyle, and the other due-process cases cited above.

At oral argument, counsel for the Administrator posited that this due-process issue is a "close call" that depends on whether we see this matter as more similar to In re Harris, 93 Ill. 2d 285, 443 N.E.2d 557 (1982), or In re Doyle, 144 Ill. 2d 451, 581 N.E.2d 669 (1991). The Administrator argues that, under Harris, Respondent was not prejudiced by having to respond to evidence adduced at trial that he engaged in a conflict of interest by arranging and presiding over the execution of Mr. Burren's will. While we respect counsel's candor, we do not see the call as particularly close. We believe this matter is analogous to Doyle, according to which we cannot discipline Respondent for conduct that came to light only after he and other witnesses testified about it at his hearing.

There was misconduct proven in the financial dealings

The Hearing Board engaged in a thorough and painstakingly detailed analysis of Respondent's check-cashing for Mr. Burren, including the amount of each check that Respondent cashed and the date on which he cashed it. (See Hearing Bd. Report at 21-31, incorporated herein by reference.) We believe that its analysis as a whole makes clear that it found sufficient evidence to establish that Respondent was not entirely forthright with Mr. Burren about his funds. We also have reviewed the record, and agree that it contains evidence to support the Hearing Board's finding of dishonesty.

In all, Respondent cashed 34 checks totaling almost $466,000. Based on the exorbitant amount of cash that Respondent handled on Mr. Burren's behalf, the Hearing Board found it incredible that Respondent would not have kept records to document what had happened to the cash, and would not have asked Mr. Burren why he needed that amount of cash or what he was doing with it. It thus inferred that Respondent was not completely candid with Mr. Burren about how that cash was being handled.

Furthermore, Respondent was a lawyer with decades of experience under his belt. Because of his professional background, we believe he should have known better than to handle hundreds of thousands of dollars of Mr. Burren's money with no documentation whatsoever regarding what he did with that money. The Hearing Board clearly felt similarly, which contributed to its finding that it did not believe Respondent's explanation regarding what he did with Mr. Burren's funds.

Sanction for the found violation

...taking into account Respondent's misconduct as well as the mitigating and aggravating factors, and keeping in mind that the purpose of discipline is not to punish the errant attorney but to protect the public (Hearing Bd. Report at 51 (citing In re Edmonds, 2014 IL 117696, par. 90)), we find that a suspension of two years, as recommended by the Hearing Board, is commensurate with Respondent's misconduct, falls within the range of discipline that has been imposed for comparable misconduct, and is sufficient to serve the goals of attorney discipline. 

Board member James T. Eaton would dismiss the entire case

I believe the Hearing Board's dishonesty finding suffers from two critical flaws. First, the Hearing Board based its dishonesty finding largely on speculation about what might have happened to Mr. Burren's funds, and what Mr. Burren might have intended with respect to his funds - with no evidence whatsoever to support its surmise. Second, a shifting of the burden of proof from the Administrator to Respondent pervades the Hearing Board's report, and is most notable in its dishonesty analysis. These two errors resulted in a finding that is unreasonable and not supported by the evidence, and therefore against the manifest weight of the evidence.

In its dishonesty analysis, the Hearing Board noted that, over a four-year period, checks totaling over $450,000 were issued on Mr. Burren's accounts and Respondent cashed most of them. It then stated: "There are virtually no records to document what happened to that cash and no testimony, except Respondent's, from anyone with actual knowledge of what happened to the cash. We were convinced that Respondent was not completely candid with Burren about how the cash was being handled." (Hearing Bd. Report at 42.)

It also stated that it "did not fully credit" Respondent's testimony that Mr. Burren wanted cash and that, but for a few bills that Respondent paid for Mr. Burren, Respondent returned the check proceeds to Mr. Burren in cash. It hypothesized: "Respondent probably did give Burren some of the cash; it seems unlikely that Burren would have continued to give Respondent checks to cash in Respondent never returned any cash to him. However, it seems equally unlikely that Burren wanted, or received, all of this cash." (Id. at 43-44.) Pointing to the large amounts and timing of the checks that Respondent cashed, the Hearing Board stated: "Given these circumstances, the concept that Burren just wanted cash is untenable. Something more was going on." (Id. at 44.)

The Hearing Board noted that Respondent was the only person to testify who had actual knowledge of what happened to the cash, given that Mr. Burren was obviously not available. It then noted that, "[i]n attempting to show he did not benefit from Burren's funds," Respondent presented testimony from his attorney in the probate case and a forensic accounting expert. The Hearing Board gave limited weight to the attorney's testimony about what happened to the funds, and did not find the expert's conclusions reliable for the reasons identified by the Administrator's expert, regarding the methodology Respondent's expert used to reach his conclusions. (Id.) The Hearing Board observed that the Administrator's expert "was not asked to, and did not, offer an opinion on what happened to the funds." (Id.)

The Hearing Board's analysis highlights the dearth of evidence regarding what happened to Mr. Burren's funds. The Hearing Board itself noted there were "no records" and "no testimony" other than from Respondent to show what happened to the cash, and that the Administrator's expert offered no opinion regarding what happened to the funds. Thus, other than Respondent's testimony and the checks signed by Mr. Burren, there was no evidence in the record regarding where Mr. Burren's funds went if not to him; how much of the funds Respondent purportedly took; what Respondent did with the funds; whether or not Mr. Burren authorized Respondent to do what he did with the funds; or any other issue that would prove by clear and convincing evidence that Respondent dishonestly took any or all of Mr. Burren's funds.

Consequently, the Hearing Board's conclusions are based largely on suspicion and supposition. The Hearing Board found that Respondent was not "completely candid" with Mr. Burren, but provided no evidentiary basis for why it believed this. It found that he "probably" gave some of the funds to Mr. Burren but that it was "unlikely" that Mr. Burren wanted or received all of the cash at issue, but, again, provided no evidentiary basis for that conclusion. It found it "untenable" that Mr. Burren just wanted cash and that "[s]omething more was going on," but cited no evidence, other than the amount and timing of the checks, for its conjecture.

http://lawprofessors.typepad.com/legal_profession/2018/01/the-illinois-review-board-the-administrator-charged-respondent-in-a-two-count-second-amended-complaint-with-preparing-a-will.html

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