Sunday, May 13, 2018

A UFO Is A Big Deal

An attorney who practiced after an administrative suspension should be suspended for six months and until further order ("UFO"), according to a recommendation of the Illinois Review Board.

The suspension

Respondent did not timely register or pay his registration fee to the ARDC for the year beginning on January 1, 2015. After receiving two notices about his failure to register, Respondent was removed from the Master Roll on March 10, 2015. He eventually registered and paid the fees that were due and was restored to the Master Roll on November 17, 2015.

Between March 10 and November 17, however, Respondent represented clients in three matters. Each matter forms the basis of a count in the complaint, and is described fully in the Hearing Board's report. There are no issues raised regarding the Hearing Board's factual findings that Respondent represented three clients between March 10 and November 17, 2015.

Respondent also was removed from the Master Roll in each of the years from 2003 to 2007, 2010, and 2011 for failure to register and/or failure to comply with his MCLE requirements. After receiving notice of those removals, Respondent registered, paid any fees and penalties that were due, and was restored to active status.

Respondent requested and received waivers of his 2016 and 2017 registration fees because of his demonstrated low income.

The attorney had a prior misconduct suspension

...in 2011, Respondent was suspended, on consent, for two years and until further order, with all but the first five months stayed by probation, for converting escrow funds, failing to hold the funds separate from his own property, neglect, failing to communicate, and charging an unreasonable fee. It found that, while his prior misconduct was different from his present misconduct, the prior disciplinary matter should have given Respondent an increased awareness of all of his professional obligations.

Sanction here

The Hearing Board based its UFO recommendation on the fact that Respondent did not fully participate in his disciplinary proceedings. We agree that Respondent's inadequate but partial participation in his disciplinary proceedings is not acceptable and raises some concern about his ability to adhere to his professional obligations. But the most significant factor bearing upon our recommendation of a suspension until further order is that Respondent has utterly failed to recognize or acknowledge that he engaged in misconduct, or to express remorse for his actions.

Moreover, Respondent's arguments in his appellate briefs and during oral argument convince us that he does not understand or accept his ethical obligation to timely register with the ARDC as a precursor to practicing law, which necessitates a suspension until further order. See In re Kesinger, 2014PR00083 and 2015PR00042 (Review Bd., Nov. 29, 2016), at 17, approved and confirmed, M.R. 28530 (March 20, 2017) (imposing suspension until further order where "Respondent's arguments on appeal show that he still does not recognize or understand the nature and seriousness of his misconduct and has no remorse for it"). We are particularly disturbed that, when Respondent was asked at oral argument if he has learned from this disciplinary proceeding, he responded: "Yes - that, according to these two cases, it's no big deal to not pay your attorney fees and continue practicing law." But it is indeed a "big deal," because it is required by the rules of the Illinois Supreme Court and the ARDC.

Accordingly, we do not believe that Respondent, at this time, is able or willing to conform his behavior to the Rules of Professional Conduct. For this reason, we believe his suspension should continue until further order, so that he is required to demonstrate his fitness before he returns to the practice of law. See In re Houdek, 113 Ill.2d 323, 327, 497 N.E.2d 1169 (1986) ("lack of any evidence that [respondent] is willing or able to meet professional standards of conduct in the future warrant suspension until further order of the court").

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/05/an-attorney-who-practiced-after-an-administrative-suspension-should-be-suspended-for-six-months-and-until-further-order-ufo.html

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