Saturday, October 4, 2014
An attorney who failed to correct his client's false affidavit claiming sole heirship in an estate matter should be suspended for five months, according to a report and recommendation of the Illinois Review Board.
Following the death of James Volgar ("James") in 2008, Respondent agreed to represent James' brother, Paul Volgar ("Paul"), regarding the administration of his brother's estate. Paul was angry that Margaret Madonis ("Margaret"), a great-niece who had cared for James during his life, was named as a joint tenant on one of James' bank accounts. After James' death, Margaret received about $400,000. Paul wanted this money. Paul told Respondent that he was James' only heir. Based upon the information he received from Paul, Respondent drafted and filed in Will County an affidavit of heirship and letters of administration stating that Paul was the only surviving heir. The probate court then appointed Paul as administrator of the estate.
In early 2009, Respondent learned that Paul had lied to him and that James had additional heirs. However, Respondent took no steps over the following seventeen months to correct the false affidavit he had filed with the court or to file an amended affidavit of heirship. At hearing, Respondent asserted he failed to amend the affidavit of heirship because he simply forgot about it and forgot about the existence of other heirs. He testified he was more focused on the issue as to whether Paul could obtain the money received by Margaret. The Hearing Board rejected Respondent's testimony, finding it incredible, and noting that 1) Respondent discussed the existence of additional heirs with various individuals; 2) he conducted research regarding distribution law; and 3) he formulated a potential argument to limit the share of the other heirs. Accordingly, the Hearing Board found that Respondent knowingly failed to correct the false statement in the affidavit. Respondent does not challenge this finding.
Following Paul's appointment as administrator of the estate, Respondent used the false information regarding heirship to obtain information from financial institutions in an attempt to support Paul's claims against Margaret. Respondent also sold James' home in 2009 without notification to the other heirs. Respondent's mother-in-law was the listing real estate agent and Respondent was the title agent. Respondent took over $9,000 in attorney's fees from the sale proceeds, most of which was for fees Paul owed him to pursue the claim against Margaret.
In addition, Respondent repeated the false statement that Paul was an only heir in subsequent statements to the court, including in a motion for waiver of a surety bond filed in December 2009. At a hearing on the motion, the judge asked if Paul was the sole beneficiary to the estate and Respondent indicated to the court in the affirmative. As a result of his misrepresentation, the court granted his motion.
As to sanction
Respondent's misconduct was serious. When he learned his client had lied to him and that he had included those lies in material statements he made to the court, Respondent had an obligation to stand up to his client and to persuade his client to remedy the false statements. Respondent did not do so, and his repeated failure to do so over such an extended period of time warrants a sanction greater then a censure or a very brief suspension.