Thursday, January 3, 2019

Health Coverage Dishonesty Draws Proposed Suspension

The Illinois Review Board proposes a five-month suspension of an experienced attorney for misconduct unrelated to the practice of law

The Administrator brought a one-count complaint against Respondent, alleging that he engaged in fraud, constructive fraud, dishonesty, and the crime of insurance fraud based upon his receiving health insurance benefits from his former domestic partner's insurer for eight years after he was no longer covered. Following a hearing at which Respondent was represented by counsel, the Hearing Board found that Respondent had committed the charged misconduct, and recommended that he be suspended for six months.

Respondent filed exceptions. On appeal, he argued that the Hearing Board's findings of misconduct were against the manifest weight of the evidence and contrary to law, and should be reversed. In the alternative, he argued that, if the Review Board were to find that he committed the charged misconduct, he should be reprimanded or censured, but not suspended.

The Review Board affirmed the Hearing Board's finding that Respondent engaged in misconduct by continuing to receive, over an eight-year period, insurance benefits that he knew he was not entitled to. It recommended that Respondent be suspended for five months for his misconduct, emphasizing that Respondent's misconduct, while serious and inexcusable, did not involve or affect any clients.

Findings

Respondent was admitted to practice in Illinois in 1975. Upon graduating from law school, he worked for the Cook County Public Defender's Office for 10 years, and then practiced with several firms, including an insurance defense firm. He opened his own law office in 1993 and has been a solo practitioner concentrating in criminal law since then. He has no prior discipline.

From 1993 through August 2004, Respondent received health insurance coverage through his wife's employer. His wife filed for divorce in 2002, and Respondent continued to be covered under her insurance while the divorce was pending. Later in 2002, he began a romantic relationship with Donna Masterson. Masterson moved into Respondent's home in April 2003.

When Respondent's divorce became final in August 2004, his health insurance benefits through his wife's employer ended. In September 2004, Respondent and Masterson applied for health insurance benefits for Respondent through Masterson's employer, the Illinois Education Association (IEA), because they met the criteria for a domestic partnership under IEA's health insurance plan and therefore Respondent was eligible for coverage under the plan.

In support of their application for insurance for Respondent, Respondent and Masterson signed an affidavit in which they attested that they had resided together since April 2002 and intended to reside together permanently; that they were in a committed and mutually exclusive relationship; and that they agreed to notify IEA in writing if there was any change of circumstances attested to in the affidavit within 30 days of such change.

Respondent testified that he probably read the affidavit before signing it. Masterson submitted the affidavit to IEA. Thereafter, Respondent received medical, prescription drug, dental, vision, and dependent life insurance coverage through IEA's insurers.

In January 2006, about 16 months after applying for insurance coverage for Respondent, their domestic partnership ended when Respondent and Masterson broke up and Masterson moved out of Respondent's home. Respondent did not, at any time, notify IEA that his domestic partnership with Masterson had ended. Masterson testified that she notified IEA in February 2008 that she and Respondent were no longer in a domestic partnership. The Hearing Board, however, found her not credible on this subject.

Respondent continued to receive insurance benefits based up on his domestic partnership with Masterson. Respondent testified that he recognized by 2010, and probably as early as 2008, that he was no longer entitled to insurance benefits from IEA, yet continued using the insurance benefits knowing that he was not entitled to them. It was not until November 2014, however, that IEA ended his insurance coverage, after having discovered through an unrelated investigation that Respondent and Masterson were no longer domestic partners.

Masterson was allowed to retire from IEA, albeit with diminished benefits, in lieu of being fired. Between 2006 and 2014, IEA paid over $132,000 on insurance premiums and claims on Respondent's behalf.

Sanction

The Hearing Board's sanction analysis in this case is well-reasoned and guides our recommendation. However, we believe that, in recommending a six-month suspension, the Hearing Board gave insufficient consideration to the fact that Respondent's conduct did not involve or impact any clients. While any conduct involving personal or professional dishonesty is inexcusable and warrants discipline, in this matter, Respondent's record of representing clients and conducting himself ethically in his profession remains unblemished after over 40 years of practice. Imposing discipline that would trigger the requirements of Supreme Court Rule 764, including the requirement that Respondent notify clients, courts, and others of his discipline, seems unduly harsh and akin to punishment. We thus have strived to reach a sanction recommendation that recognizes the seriousness of Respondent's misconduct and achieves the objectives of discipline but does not seek to punish Respondent.

Accordingly, taking into account Respondent's misconduct as well as the aggravating and mitigating factors present here, and giving particular consideration to the fact that Respondent's misconduct did not involve or affect any clients, we recommend that Respondent be suspended for five months. We believe that this sanction is commensurate with Respondent's misconduct, consistent with discipline that has been imposed for comparable misconduct, and sufficient to serve the goals of attorney discipline and deter others from committing similar misconduct.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/01/the-illinois-review-board-proposes-a-five-month-suspension-the-administrator-brought-a-one-count-complaint-against-responden.html

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