Thursday, February 1, 2018

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The Illinois Review Board has confirmed that a misappropriation was not dishonest and warrants a suspension

The Administrator charged Respondent in a one-count complaint with dishonestly misappropriating $16,805 in settlement funds that he should have been holding pending determination of his attorney's lien.

Following a hearing at which Respondent was represented by counsel, the Hearing Board found that Respondent had misappropriated the funds in question, but that he had not engaged in dishonesty with respect to the misappropriation. It recommended that Respondent be suspended for five months and until he deposits $16,805.60 into his IOLTA account, resolves the issue involving distribution of the funds, and successfully completes a professional responsibility seminar.

The Administrator filed exceptions, challenging the Hearing Board's finding of no dishonesty as well as its sanction recommendation.

The Review Board concluded that the Hearing Board's finding of no dishonesty was against the manifest weight of the evidence. It found that uncontroverted evidence established that Respondent knew his client had not authorized him to withdraw her funds from his IOLTA account but withdrew them anyway, which was dishonest. It thus reversed the Hearing Board's finding of no dishonesty and found that Respondent violated Rule 8.4(c) as well as Rule 1.15(e).

The Review Board recommended that, for his misconduct, Respondent be suspended for six months and until he deposits $16,805.60 into his IOLTA account, resolves the issue involving distribution of his client's funds, and successfully completes the ARDC Professionalism seminar.

A concurrence

Richard A. Green, specially concurring:

While I agree with my colleagues in the disposition of this matter, I write separately because I believe the time has come to clarify the rule in regard to attorneys taking funds from their trust accounts.

The funds in an attorney's trust account do not belong to the attorney! They belong to the client. An attorney may take funds only on two conditions: (1) The client authorizes the attorney to take the funds; or (2) a court order so authorizes the taking. Absent either of those two conditions, the taking is dishonest! No further proof of dishonesty is required.

The often-heard excuse that the lawyer has an interest in the funds because he or she is owed fees is a red herring. That claim does not change the fact that the funds still belong to the client. Even if the attorney is owed fees, the client must still authorize their payment. If (as here) there is a dispute regarding the fees, then the funds must be safeguarded until a court authorizes the withdrawal.

There should be nothing more sacred to the profession than the absolute safety of funds entrusted to lawyers.

Final discipline is imposed by the Illinois Supreme Court. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/02/the-illinois-review-board-has-confirmed-that-a-misappropriation-was-not-dishonest-and-warranted-a-suspension-a-concurrence.html

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