Tuesday, March 6, 2018
An Illinois Hearing Board has made the following findings and recommendation
Respondent was charged in a one-count complaint with misconduct arising out of his continued receipt of medical, dental and other insurance benefits through the employer of his former domestic partner, Donna Masterson. Although Respondent was previously living with Ms. Masterson and met the eligibility requirements to receive those benefits as her domestic partner, the couple's relationship ended in 2006 and Respondent was no longer eligible for coverage. Despite his written agreement to notify Ms. Masterson's employer of any such change in their relationship, Respondent failed to do so. Instead, he remained silent and continued to submit claims and receive insurance benefits until 2014, when her employer learned of the situation and terminated his coverage. Respondent was charged with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, engaging in constructive fraud, and committing the criminal offense of insurance fraud.
The Hearing Board found that Respondent engaged in conduct involving fraud and dishonesty and engaged in constructive fraud by failing to notify the employer of his former domestic partner that the couple's relationship had ended, and continuing to submit claims and accept health and other insurance benefits for eight years after he knew he was no longer eligible to receive those benefits. It also found that he committed the criminal offense of insurance fraud charged in the complaint during some, but not all, of this time.
After considering the nature of the misconduct and the aggravating and mitigating factors, the Hearing Board recommended that Respondent be suspended for six months.
The attorney was admitted in 1975 and had been without his own medical insurance
Between 1993 and 2004, Respondent's then-wife, Barbara Lewis (Barbara), was employed. Barbara's employer provided medical coverage for Barbara and Respondent through its group insurance plan. Respondent was eligible to receive this coverage because he was Barbara's spouse. (Jt. Stip. at par. 2; Tr. 190).
In 2002, Barbara filed a petition for dissolution of her marriage to Respondent. The couple's divorce was finalized several years later, on August 16, 2004. After that, Respondent was no longer eligible for medical insurance coverage through Barbara's insurance. (Jt. Stip. at par. 2; Tr. 190-91).
In 2002, while Barbara's petition for dissolution was pending, Respondent met and began a romantic relationship with Donna Masterson. In April 2003, Ms. Masterson and Respondent moved in together and began sharing a residence. They later moved into a home in Chicago, which was owned by Respondent. They continued to live together in Respondent's home until January of 2006. During that time, they were in a committed relationship similar to a marriage. (Jt. Stip. at par. 3; Tr. 186-87; Evid. Dep. at 13, 47-49).
In that relationship, the attorney was covered as Masterson's domestic partner but the relationship ended.
Between January 2006 and December 2014, IEA continued to cover Respondent for insurance purposes. Respondent had no other medical or dental insurance during this time, and he continued to submit claims, personally or through his providers. Respondent's use of IEA's insurance coverage during this period included submission of at least 92 claims for medical services, pharmacy services, and laboratory services on Respondent's behalf, which were paid by BCBS and totaled at least $16,000. Respondent also used IEA's insurance coverage for his dental insurance needs, resulting in the payment of an additional $3,597.40 in claims. (Jt. Stip. at pars. 8, 9; Tr. 109-10; Adm. Exs. 5, 5A, 6, 7).
Between January 2006 and December 2014, IEA incurred $112,514.76 in additional medical insurance premiums and the equivalent of $6,266.56 more in dental insurance premiums attributable to Respondent's coverage beyond what it would have incurred for a single plan for Ms. Masterson.3 The amount paid by IEA for dependent life insurance for Respondent during this time was $73.44. Respondent never paid any money towards IEA's group insurance premiums while he was covered under IEA's plan. (Jt. Stip. at par. 10; Tr. 108-111, 207-208; Adm. Ex. 7).
From 2006 to 2014, new insurance identification cards were mailed to Ms. Masterson in February 2011 and in December 2013. According to Ms. Knox, new insurance cards were sent out in December 2013 because the policy number changed after IEA implemented changes to the plan. During this time, all explanation of benefits statements (EOBs) were also sent to Ms. Masterson at the addresses she had on file with IEA. (Jt. Stip. at par. 8; Tr. 82-83, 262; Evid. Dep. at 18, 42-43, 73; Resp. Ex. 13).
Ms. Masterson admitted receiving new insurance cards after she and Respondent stopped living together, but denied giving any new cards to Respondent. She also acknowledged she received two cards each time, even though she had no other dependents. She further testified that she did not know if any EOBs for Respondent came to her new address after she moved out of Respondent's home. Because all the statements were addressed to her, she said she assumed they were hers and never opened any of them. (Evid. Dep. at 39, 73-75).
An investigation led to the termination of benefits.
Here, the attorney sought dismissal
Contrary to Respondent's position, Karavidas does not place the personal conduct of attorneys entirely outside the reach of the disciplinary process. Rather, it limits the imposition of profession discipline to such situations where the conduct at issue also violates one or more of the Rules. Therefore, while purely common law theories of wrongdoing are no longer viable as stand-alone charges, attorneys are still subject to discipline for personal misconduct which violates one or more of the Rules. See, e.g., In re Hamid, 2016PR00118, M.R. 28351 (Jan. 13, 2017) (attorney disbarred on consent following criminal conviction for mail fraud and currency structuring related to ownership of a rooftop baseball viewing business in violation of Rules 8.4(b) and 8.4(c)); In re Bless, 2013PR00122, M.R. 28275 (Nov. 21, 2016) (attorney suspended one year for dishonest conduct in connection with collection of disability benefits in violation of Rules 8.4(a)(4) (1990) and 8.4(c) (2010)); In re Crowley, 2016PR00063, M.R. 28285 (Nov. 21, 2016) (attorney disbarred on consent following criminal conviction for child pornography in violation of Rule 8.4(b)); In re Weiss, 08 CH 116, M.R. 27547 (Nov. 17, 2015) (attorney disbarred for sexual misconduct toward employees and incidents of public indecency and disorderly conduct in violation of Rule 8.4(a)(3) (1990) and 8.4(b) (2010)).
Unlike Karavidas, none of the disciplinary charges at issue here is based on purely common law theories of wrongdoing. Rather, consistent with the Court's direction in that case, each charge alleges a violation of a specific Rule of Professional Conduct. Therefore, Karavidas poses no bar to imposing discipline in this matter, as long as the Rule violations charged are established by clear and convincing evidence.
The committee found rule violations
Based upon the facts and circumstances in this case, we believe that a significant suspension is warranted, particularly in light of the magnitude of Respondent's misconduct and its lengthy duration. After considering applicable precedent along with the aggravating and mitigating factors established here, we conclude that a six-month suspension is appropriate and will serve the purposes of the disciplinary process in this case.