Adam Tracy Suspended

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DECISION FROM DISCIPLINARY REPORTS AND DECISIONS SEARCH
Filed March 22, 2018
In re Adam Samuel Tracy

Attorney-Respondent
Commission No. 2017PR00014
Synopsis of Hearing Board Report and Recommendation

(March 2018)
The Administrator's five-count Complaint alleged that Respondent engaged in multiple instances of misconduct in
connection with his representation of five clients, primarily in foreclosure and loan modification matters. Each count charged
that he failed to act with reasonable diligence and engaged in dishonest conduct. In various other counts he was charged with
failing to properly communicate with clients; failing to expedite litigation; asserting frivolous proceedings or issues; failing
to properly withdraw from a matter after being terminated; failing to protect his clients' interests after being terminated;
making a false statement or offering false evidence to a tribunal; using means with no substantial purpose other than to
embarrass, delay, or burden a third person; and engaging in conduct prejudicial to the administration of justice.
The Hearing Board found that Respondent failed to act with reasonable diligence with respect to all five clients and engaged
in dishonest conduct with respect to four clients. As to three counts he failed to properly communicate with his clients and
brought frivolous proceedings or motions. Respondent also failed to properly withdraw from litigation matters, failed to take
steps to protect one client after he was terminated, made false statements to a tribunal, failed to expedite litigation, asserted
issues to embarrass, delay or burden a third party, and engaged in conduct prejudicial to the administration of justice.
After considering the mitigating and aggravating factors and relevant case law, the Hearing Board recommended that
Respondent be suspended for one year, with the last six months stayed by a one-year period of probation with conditions.
BEFORE THE HEARING BOARD

OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION
In the Matter of:
ADAM SAMUEL TRACY,

Commission No. 2017PR00014
Attorney-Respondent,
No. 6287552.
REPORT AND RECOMMENDATION OF THE HEARING BOARD
SUMMARY OF THE REPORT
The Administrator's five-count Complaint charged Respondent with engaging in multiple instances of misconduct in
connection with his representation of one client in a bankruptcy matter and four clients in foreclosure and loan modification
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matters. The charges included failing to act with diligence, failing to properly communicate with clients, asserting frivolous
proceedings or issues, failing to protect his clients' interests after termination, failing to properly withdraw after being
discharged, failing to expedite litigation, using means with no substantial purpose other than to embarrass, delay, or burden a
third person, and acting dishonestly. The Hearing Board found that many, but not all, of the charges were proved. As to the
rules that were violated, not every instance of misconduct cited in support of each charge was proved.
After considering the mitigating and aggravating factors, the Hearing Board recommended a suspension of one year, with
the last six months stayed by a one-year period of probation with conditions.
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INTRODUCTION
The hearing in this matter was held on October 2 and 3, 2017 at the offices of the Attorney Registration and Disciplinary
Commission ("ARDC") before a hearing panel consisting of James B. Pritikin, Gregory E. Rogus and Joseph C. Vallez.
Roona N. Shah and Scott Renfroe represented the Administrator. Respondent appeared and was represented by James A.
Doppke, Jr.
PLEADINGS
On February 24, 2017 the Administrator filed a 42-page, five-count Complaint against Respondent charging him with
misconduct in relation to a bankruptcy matter and several foreclosure and loan modification matters. At the hearing, the
Administrator moved, and was allowed, to amend Count I to delete certain language in the charging paragraphs. (Tr.
374-76).
On March 28, 2017 Respondent filed an Answer in which he admitted some allegations, denied others, and denied all
charges of professional misconduct.
ALLEGED MISCONDUCT
The Complaint charged Respondent with engaging in the following misconduct: 1) failing to act with reasonable diligence
and promptness in representing a client in violation of Rule 1.3 (Counts I, II, III, IV, V); 2) failing to keep clients reasonably
informed about the status of their matters in violation of Rule 1.4(a)(3) (Counts I, II, III, IV); 3) failing to comply with
reasonable requests for information in violation of Rule 1.4(a)(4) (Counts III, IV);1 4) where representation has
com0menced, not withdrawing from the representation of a client if the lawyer is discharged in violation of Rule 1.16(a)(3)
(Count IV); 5) not complying with applicable law requiring notice to or permission of a tribunal when terminating a
representation in violation of Rule 1.16(c) (Counts IV, V); 6) failing to refund any advance payment of fee or
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expense that has not been earned or incurred, or failing to take steps, upon termination, to protect a client's interests in
violation of Rule 1.16(d) (Counts III, IV, V); 7) bringing or defending a proceeding, or asserting or controverting an issue
therein, when there was no basis in law or fact for doing so that was not frivolous in violation of Rule 3.1 (Counts II, III, IV,
V); 8) failing to make reasonable efforts to expedite litigation consistent with the interests of the client in violation of Rule
3.2 (Counts I, III, IV, V); 9) making a false statement of fact to a tribunal in violation of Rule 3.3(a)(1) (Counts II, V); 10)
knowingly offering false evidence in violation of Rule 3.3(a)(3) (Count I); 11) using means that have no substantial purpose
other than to embarrass, delay, or burden a third person in violation of Rule 4.4(a) (Counts II, III, V); 12) engaging in
conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) (Counts I, II, III, IV, V); and 13)
engaging in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d) (Count I).
EVIDENCE
The Administrator called Shaugn Davenport, Melissa Davenport, Cynthia Beata, Laura Wolowiec, Renee Fajutrao,
Diacovonne Flowers and Respondent as witnesses. Respondent testified on his own behalf and presented Megan Ruettiger as
a witness. Administrator's exhibits 1-45 and Respondent's exhibits 1-27 were admitted into evidence.
FINDINGS AND CONCLUSIONS
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In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and
convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). Clear and convincing evidence
constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a
reasonable
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doubt. People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991). All of our findings are made in accordance with these
standards.
Many of the rules at issue are involved in more than one count of the Complaint. The legal principles cited with respect to a
particular rule in one count are incorporated into the reasoning of our findings in other counts.
Background and General Evidence
Respondent was admitted to practice law in 2005. After working at a firm for nearly a year, he became co-owner and general
counsel of a technology company. In 2008 or 2009 he opened the Tracy law firm in Wheaton, Illinois and practiced as a sole
practitioner until 2015, concentrating on foreclosure defense, bankruptcy, debt settlement, collections and litigation. He
developed his client base by advertising his practice online, making presentations, and purchasing lists of newly filed
foreclosures. (Tr. 19-21, 316-18).
Respondent had his highest volume of foreclosure cases in 2012 and continued working in that area until 2013, at which
point the foreclosure glut was waning and he was branching out in other areas. Although he still has two pending foreclosure
cases, he currently focuses on corporate securities and commercial litigation. (Tr. 320-23).
With respect to foreclosure defense, Respondent believed he came up with unique defenses as well as strategies for
providing extra time to his clients, including delaying filing an appearance until it became necessary and propounding
burdensome discovery on the opposing party. He noted that defendants who appeared on the default date and asked for more
time to respond were routinely given additional time. His goal was to provide his clients with time to seek loan
modifications. He responded to summary judgment motions filed by the opposing party only if he had a bona fide response.
(Tr. 34, 319, 352-53, 356).
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Respondent has consistently employed a receptionist and at least one paralegal. He and his employees used the Abicus Law
software program to record activity on each case and generate "Matter Notes." The entries were not always made
contemporaneously with the activity recorded. (Tr. 228-29, 317, 345, 350-51).
I. In Count I Respondent is charged with failing to act with reasonable diligence (Rule 1.3); failing to keep his
clients reasonably informed (Rule 1.4(a)(3)); failing to expedite litigation (Rule 3.2); knowingly presenting false
evidence (Rule 3.3(a)(3)); engaging in dishonest conduct (Rule 8.4(c)); and engaging in conduct prejudicial to the
administration of justice (Rule 8.4(d)).
A. Summary
The Administrator charged Respondent with misconduct in connection with his representation of Shaugn and Melissa
Davenport in a bankruptcy proceeding. We find Respondent failed to act with reasonable diligence, knowingly presented
false evidence, engaged in dishonest conduct, and engaged in conduct prejudicial to the administration of justice. We do not
find that Respondent failed to keep his clients reasonably informed or failed to expedite litigation.
B. Evidence Considered
In 2008 Shaugn and Melissa Davenport filed for Chapter 13 bankruptcy as a result of debt relating to medical issues, and
thereafter made monthly payments as part of their repayment plan. In August 2011 Shaugn Davenport was out of work and
struggling to pay his mortgage. (Tr. 71, 74-75).
The Davenports found Respondent through a website and hired him in August 2011 to represent them with respect to their
mortgage loan. Their home went into foreclosure in September 2011. (Tr. 22, 72-74, 93; Adm. Ex. 1).
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Shaugn and Melissa both recalled Respondent advising them that their Chapter 13 bankruptcy plan was not beneficial and
they should re-file for bankruptcy under Chapter 7. In
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accordance with that advice, they stopped making payments under their Chapter 13 plan, and in July 2013 asked Respondent
to go forward with a Chapter 7 bankruptcy. At that time Shaugn expected the filing would occur fairly soon. When nothing
was filed and he had trouble communicating with Respondent, he sent a strongly worded letter to Respondent stating the
matter needed to go forward. (Tr. 75-79, 106).
Respondent testified the Davenports wanted their Chapter 13 bankruptcy dismissed and their mortgage payment reduced.
While he cautioned them that filing a Chapter 7 immediately could impact their ability to get a loan modification, their stated
goal was to maximize their stay in their home, rather than to obtain a loan modification. Respondent typically advised his
clients that a loan modification was worth trying because it affects the pace of the litigation, and he did apply for a loan
modification on behalf of the Davenports. He recalled that when he communicated with the Davenports about the loan
modification, they were slow in their response and not overly concerned, and were more interested in fighting the
foreclosure to lengthen their stay in their home. (Tr. 208-11, 326).
In anticipation of filing a Chapter 7 bankruptcy on behalf of the Davenports, in January 2014 Respondent requested
information and documents from them, as well their signatures on a Declaration regarding Electronic Filing of Petition ("the
declaration") stating the information they provided was correct. Shaugn testified they promptly complied with the requests,
signed the declaration on January 10, 2014, and returned it within 24 hours. (Tr. 23-24, 76-78, 105; Adm. Ex. 2).
On January 21, 2014 the Davenports were sued for defaulting on a loan relating to the purchase of a special van for
transporting their son and a service dog. At that point Respondent had not filed the Chapter 7 bankruptcy petition. Shaugn
testified he was stressed by the
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complaint, which was pending in Springfield, and did not know how it would impact the bankruptcy or foreclosure
proceedings. He advised Respondent he did not want to travel to defend the case as he was dealing with serious back issues,
and therefore wanted the bankruptcy petition to be filed. Shaugn recalled that Respondent indicated he would take care of it.
(Tr. 79-81, 98, 106; Adm. Ex. 3).
Shaugn thought a bankruptcy filing would stay the Springfield case and was surprised to learn in February 2014 that a
default judgment was entered against him for $19,600. He testified whenever he reached out to Respondent he had great
difficulty obtaining a response and when he did, it was terse. In May 2014 Shaugn received a citation to discover assets in
the Springfield case, and was worried about having to appear on June 6, 2014. He sent multiple emails to Respondent asking
whether he had to appear and for the status of the bankruptcy case. In an email of May 27, 2014, he inquired about the
impact of the Springfield case on the bankruptcy, and vice versa. Respondent replied by email that same day, stating the
bankruptcy would not save the van but he intended to file the petition the next day, unless Shaugn preferred that he not do
so. Shaugn responded that he did not care about keeping the van, and he wanted Respondent to keep the mortgage company
"chasing their tails." (Tr. 82-86, 93; Adm. Exs. 3-4, Resp. Ex. 1).
Shaugn testified after days of calling Respondent without receiving a response, he left a message for him on June 5, 2014,
threatening to involve the ARDC if Respondent did not return his phone calls. On that same date, he sent Respondent an
email requesting the status, case number, and filing date of the bankruptcy, and called the clerk of the court to check if
anything had been filed. Shaugn and Melissa both testified they had wanted the bankruptcy filed since June 2013. (Tr. 86, 94,
97, 103; Resp. Ex. 2).
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Respondent testified he was contacted by Shaugn in May 2014 regarding a citation to discover assets, and advised him he
could be held in contempt of court for failure to appear. Respondent testified the Davenports knew at that point that a
bankruptcy petition had not been filed since they had not completed a financial questionnaire Respondent had given them in
January. According to Respondent, he verbally advised Shaugn the questionnaire had to be returned for the bankruptcy to be
filed, but Shaugn ignored his requests. Respondent interpreted Shaugn's comment in the May 27, 2014 email about keeping
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the mortgage company "chasing their tails" as referring to the continued use of discovery and litigation tactics to keep the
foreclosure action at bay. (Tr. 25-26, 214, 217-20, 328; Adm. Ex. 4; Resp. Ex. 1).
Respondent recalled having a phone conversation with Shaugn on the morning of June 6, 2014, during which Shaugn was
frenetic and wanted the bankruptcy petition filed because the citation hearing was scheduled for one o'clock that afternoon.
Respondent testified he agreed to file the petition with Shaugn's confirmation that Respondent could update the declaration
and sign it on behalf of the Davenports. He recalled Shaugn giving his authorization, as did Melissa, who was near the
phone or on a speaker phone. Respondent acknowledged affixing the Davenports' purported signatures to a new, one-page
bankruptcy declaration dated June 4, 2014 and misspelling Shaugn Davenport's name as "Shaug." Respondent did not initial
the signatures and his name does not appear anywhere on the document. He testified he lost track of the fact the Davenports
had signed a declaration in January 2014 and if he had remembered, he would have used the earlier document. Respondent
denied ever signing declarations on behalf of other clients. (Ans. at par. 17; Tr. 26-27, 222-24, 351).
Respondent filed the bankruptcy petition and other documents on June 6, 2014, and faxed a copy of the notice of bankruptcy
to counsel for the creditor in the Springfield case. He testified
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that immediately after filing the petition, he sent an updated declaration to the Davenports via email and requested they sign
it, but they did not do so. (Ans. at par. 14; Tr. 94, 223-25, 329; Adm. Ex. 6).
Shaugn testified he did not attend the June 6, 2014 hearing in Springfield, and was not arrested for failing to appear. He was
not able to reach Respondent and did not learn the bankruptcy petition had been filed until later in the month when he called
the clerk of the court. He acknowledged he was on a retreat with his family during the second week in June and had no
access to phones or emails during that time. (Tr. 86-87, 95-96).
On June 9, 2014, the bankruptcy court clerk sent Respondent a deficiency notice advising that the Davenports' bankruptcy
petition was incomplete as it was missing the declaration of electronic filing, a statement of social security numbers, and a
list of names and addresses of creditors. In his answer to the Complaint Respondent admitted he filed the declaration bearing
the Davenports' purported signatures on June 12, 2014, although at hearing he testified he filed that declaration on June 5,
2014. The docket sheet from the bankruptcy litigation indicates he submitted a statement of social security numbers and
certain schedules by the end of June 2014. (Ans. at pars. 15, 18; Tr. 27; Adm. Exs. 7, 11).
At a meeting of creditors on August 28, 2014, the Davenports confirmed that they authorized the filing of the bankruptcy
petition, but advised the trustee that their purported signatures on the declaration shown to them were not genuine and, in
fact, Shaugn's first name was misspelled. They provided copies of the declaration bearing their genuine signatures. They
denied giving Respondent authority to sign their names on the declaration, and denied that Respondent told them he signed
any document on their behalf. Respondent was not present at
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the creditors' meeting, but testified he sent substitute counsel with a file that contained both versions of the declaration. (Tr.
28, 87-90, 96-97, 105-106, 224; Adm. Ex. 8).
Shaugn testified he and his wife left the meeting bewildered and had lost confidence in Respondent's ability to handle the
foreclosure case due to his lack of honesty and competence in handling the bankruptcy. They sought other counsel and on
September 17, 2014 notified Respondent they wanted him to withdraw. Respondent received and responded to the email,
agreeing to no longer represent the Davenports and to return their files. Shaugn testified Respondent had no more
involvement with his bankruptcy case. (Ans. at par. 24; Tr. 28, 90-91).
On September 24, 2014, the bankruptcy trustee filed a motion for sanctions against Respondent for signing the Davenports'
names on a declaration, and attached a copy of the declaration filed by Respondent. Respondent testified he had no intention
of misrepresenting anything to the trustee and wanted to resolve the matter as quickly as he could. Between September 24
and October 30, 2014, he contacted the trustee's office, admitted he signed the Davenports' names on the declaration - albeit
with their authorization - and negotiated a sanction. On October 30, 2014, the trustee's motion was granted and Respondent
was required to (a) complete 10 hours of continuing legal education, (b) pay a fine of $1,000, (c) serve a one-year
suspension from practice before the bankruptcy court, and (d) self-report his conduct to the ARDC. (Ans. at pars. 25-27; Tr.
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28-29, 226-27; Adm. Exs. 9, 10).
Shaugn Davenport testified he had no reason not to cooperate with Respondent, who he was paying, and had given
Respondent all the documents requested. In the future, he will be more careful, and less trusting, in dealing with attorneys.
(Tr. 91).
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C. Analysis and Conclusions
1. Rule 1.3 - failing to act with reasonable diligence
The Administrator charged Respondent with violating Rule 1.3 by conduct including "delaying filing the Davenports'
Chapter 7 bankruptcy petition."
An attorney is obligated to represent a client with zeal and diligence within the bounds of the law. In re Ring, 141 Ill. 2d 128,
140, 565 N.E.2d 983 (1990). Not every delay or failure of action, however, constitutes professional misconduct. In re
Mason, 122 Ill. 2d 163, 169-70, 522 N.E.2d 1233 (1988). The circumstances as a whole must be considered in determining
whether charges of neglect or failure to expedite litigation have been proved. In re Fish, 2013PR00065, M.R. 27987 (May
18, 2016) (Hearing Bd. at 12).
We find the Administrator proved a violation of Rule 1.3. Shaugn Davenport testified credibly that he directed Respondent to
go forward with the Chapter 7 bankruptcy petition in July 2013, reiterated his request in January 2014 in order to stay a
collection action filed against him, and promptly completed all the necessary documents given to him by Respondent. It is
undisputed that Respondent obtained the Davenports' signed declaration in January 2014, but did not go forward with the
filing at that time. In fact, he did not file the petition until June 2014, and even then it was not a complete package.
2. Rule 1. 4(a)(3) - failing to keep clients reasonably informed about the status of a matter
The Administrator charged Respondent with violating Rule 1.4(a)(3) by conduct including "not disclosing to the Davenports
when Respondent actually filed the Davenports' Chapter 7 bankruptcy petition."
In Ring, 141 Ill. 2d at 140, the Court stated: "[w]hen a client places his or her trust in an attorney to pursue a legal matter on
the client's behalf, it is essential that the attorney keep the
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client reasonably informed about the progress and status of the matter. In this way, the client can make an intelligent decision
to proceed further with the matter, to terminate pursuit of the matter, or to exercise some other option such as seeking the
advice of other counsel." Among the factors we can consider in determining whether the Administrator proved a violation of
Rule 1.4 is whether there was information the client was lacking or developments the attorney should have reported to the
client. In re Herrmann, 2010PR00103 (Hearing Bd. at 14-15). We can also consider the evidence as to the level of
communication overall. In re Kirby, 2010PR00098, M.R. 26679 (May 16, 2014).
We find the Administrator did not prove a violation of Rule 1.4(a)(3) by clear and convincing evidence. Davenport testified
he tried to reach Respondent in May 2014 to inquire about the filing of the Chapter 7 bankruptcy. In a May 27, 2014 email
he repeated the inquiry, as he was concerned that he may have to appear in a case in Springfield on June 6, 2014 if that
litigation was not stayed by the bankruptcy petition. Respondent replied that he would file the petition the next day unless
Davenport did not want him to do so. In a response email, Davenport discussed the difficulties of traveling to Springfield but
did not address Respondent's inquiry about filing the bankruptcy the next day. We saw no indication in the emails that
Davenport believed the matter had already been filed at that point.
On June 5, 2014 Davenport again asked for the status of the bankruptcy filing. Respondent testified, and the court docket
indicates, that the Chapter 7 petition was filed the next day. Although Davenport testified he did not learn of the filing until
he called the clerk of the court towards the end of that month, he also acknowledged he was out of town during the second
week in June and had no access to any method of communication.
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Davenport knew at the end of May that the bankruptcy filing was imminent and, in fact, pushed for the filing to occur by his
court date in Springfield. The filing did occur on that date, and Respondent faxed a notice of it to counsel for the creditor in
the Springfield litigation. The fact Davenport may not have learned the exact date of filing for several weeks does not, in our
view, constitute misconduct by Respondent.
3. Rule 3.2 - failing to make reasonable efforts to expedite litigation
The Administrator charged Respondent with violating Rule 3.2 by conduct including "delaying filing the Davenports'
Chapter 7 bankruptcy petition."
We find this charge was not proved by clear and convincing evidence. We interpret Rule 3.2 as applying to existing
litigation, as opposed to Rule 1.3 which speaks to an attorney's more generalized obligation to act with reasonable diligence
and promptness. The Administrator did not prove that Respondent failed to move forward with the bankruptcy once it was
filed. While he did not file all of the supporting documents with the initial petition, the documents appeared to be submitted
within a few weeks.
To the extent Rule 3.2 might apply to a delay in initiating litigation, it is duplicative of the misconduct we have already
found in the section addressing Rule 1.3.
4. Rule 3.3(a)(3) - knowingly offering false evidence
The Administrator charged Respondent with violating Rule 3.3(a)(3) by conduct including "signing his client's name to the
declaration, without authority do so."
We find this charge was proved by clear and convincing evidence. Respondent did not deny signing the Davenports' names
to the June 2014 declaration, but claimed he had their permission to do so. Both Shaugn and Melissa Davenport testified to
the contrary, stating they did not authorize Respondent to sign their names and were surprised to see their signatures on the
declaration, especially since they had already signed the same document in January 2014.
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We find their testimony to be credible and conclude Respondent knew, at the time he signed their names, that he was not
authorized to do so. His failure to place his initials by the false signatures or to confirm to the Davenports that he had signed
the declaration on their behalf, indicates his intent to pass off the signatures as those of the Davenports.
The fact the Davenports had previously signed a declaration in January does not make Respondent's later action any less
deceitful especially since, by his own admission, he did not even remember they had signed the declaration.
5. Rule 8.4(c) - dishonesty, fraud, deceit or misrepresentation
The Administrator charged Respondent with violating Rule 8.4(c) by conduct including "misrepresenting to Shaugn
Davenport when Respondent filed the Chapter 7 petition, and then by signing his client's name to the declaration without
authority to do so."
In In re Edmonds, 2014 IL 117696, par. 62 the Court stated "there is essentially no way to define every act or form of
conduct that would be considered a violation" of Rule 8.4(c) as "[e]ach case is unique and the circumstances surrounding the
respondent's conduct must be taken into consideration." Rule 8.4(c) "is broadly construed to include anything calculated to
deceive, including the suppression of truth and the suggestion of falsity." Id. at 53.
We do not find that Respondent misrepresented the date the bankruptcy petition was filed. As stated previously, he clearly
indicated to Davenport on May 27, 2014 that the petition had not yet been filed, as well as his intention to file it, which he
did ten days later. As to the latter part of the charge, we find Respondent engaged in dishonesty for the reasons stated in the
prior section. He signed the Davenports' names to the June declaration without their permission or knowledge, and did not
indicate on the declaration that he was signing on their behalf.
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6. Rule 8.4(d) - conduct prejudicial to the administration of justice
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The Administrator charged Respondent with violating Rule 8.4(d) by conduct including "delaying filing the Davenport's
bankruptcy petition which led to additional bankruptcy litigation for the Davenports."
An attorney's misconduct is prejudicial to the administration of justice if it has an impact on the representation of a client or
the outcome of a case, undermines the judicial process or jeopardizes a client's interests. In re Storment, 203 Ill. 2d 378, 399,
786 N.E.2d 963; In re Thomas, 2010 IL113035, pars. 91, 123. In In re Karavidas, 2013 IL 115767, the Court noted that the
rule has been interpreted as requiring "actual" prejudice to the administration of justice.
We do not find that the administration of justice was prejudiced simply by Respondent's delay in filing the bankruptcy
petition. However, we do find that the delay ultimately caused Respondent to file a rushed, and therefore incomplete, petition
which was accompanied by a declaration with forged signatures. His failure to file all the necessary documents caused a
notice of deficiency to be issued, and the false signatures on the declaration caused additional litigation and expenditure of
court time to resolve the trustee's motion for sanctions against Respondent. For those reasons, we find that a violation of
Rule 8.4(d) was proved by clear and convincing evidence.
II. In Count II, Respondent is charged with failing to act with reasonable diligence (Rule 1.3), failing to keep his
client reasonably informed (Rule 1.4(a)(3)), bringing a frivolous proceeding or asserting a frivolous issue (Rule
3.1), making a false statement to a tribunal (Rule 3.3(a)(1), using means that have no substantial purpose other
than to delay and burden a third party (Rule 4.4(a)), and engaging in dishonest conduct (Rule 8.4(c)).
A. Summary
The Administrator charged Respondent with engaging in misconduct in connection with his representation of Cynthia Beata
in a foreclosure case and loan modification. We find
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Respondent failed to act with reasonable diligence, failed to keep his client reasonably informed, initiated frivolous
proceedings, and used means that had no substantial purpose other than to delay and burden a third party. Although we
found Respondent engaged in misconduct that violated the rules, we did not find that every specific instance of alleged
misconduct was proved.
We did not find that Respondent made a false statement to a tribunal or that he engaged in dishonest conduct.
On June 1, 2010 BAC Home Loans Servicing ("BAC") filed a foreclosure action against Cynthia Beata regarding her home
in Wilmington, Illinois. Beata testified she has suffered health problems for about twenty years, has been hospitalized
frequently, is divorced, and receives disability payments as her only income. (Tr. 109-11, 116; Adm. Ex. 13).
Beata contacted Respondent in 2011 after seeing his advertisement for loan modifications. She met with Respondent's
employee, signed an engagement agreement on October 14, 2011, paid an upfront fee, and agreed to have her credit card
charged monthly. She testified her monthly payment was initially $650, but was later reduced to $495. When Beata later met
with Respondent, she advised him of her health issues and financial status, and was clear about not wanting to lose her
house. She testified she had about $200,000 of equity in her home, had no debt other than possibly a small school loan, and
her goal was to lower her monthly payments by about $200 per month. She felt she was in good hands, Respondent
understood her position, and he would take care of everything. (Tr. 111-16; Adm. Ex. 12).
Respondent testified he was hired to defend Beata in foreclosure litigation and file a loan modification application for her.
Regarding the engagement agreement, which he drafted, he included language about the technical nature of foreclosure
defenses so his client would understand that a clear win might not be possible. His goal was to meet Beata's objective of
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obtaining a loan modification or extend her possession of the house, which might involve delaying litigation rather than
expediting it. Pursuant to their agreement, Beata paid $950 upon engagement and then was to pay $495 per month.
Respondent noted she sometimes missed payments or made reduced payments. (Tr. 30, 233, 244-46; Adm. Ex. 12).
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To apply for a loan modification for Beata, Respondent had to submit various forms to Beata's lender, including a loan
modification application, Beata's bank statements, a household liabilities and expenses form, a hardship letter, and a financial
worksheet/borrower information form. Respondent testified the application was necessary to continue, delay or set aside a
judicial sale. (Ans. at par. 31; Tr. 234-37; Resp. Ex. 11).
In November 2011 Respondent filed his appearance and Beata's answer and affirmative defenses in the foreclosure matter.
The affirmative defenses claimed BAC lacked standing to bring a claim because it had not attached documents to the
complaint to demonstrate an interest in the mortgage. After BAC filed a motion to strike the affirmative defenses, Beata was
allowed to withdraw them. On May 11, 2012, BAC filed motions for summary judgment and for a judgment of foreclosure
and sale. On that same day, Respondent filed a second answer and affirmative defenses that raised no new facts and again
argued that BAC lacked standing to bring its claim. He did not respond to BAC's motions, although he knew the summary
judgment motion was dispositive, and on May 16, 2002, the motions were granted. As of that date, Respondent still had not
filed a loan modification application on behalf of Beata. (Ans. at pars. 32, 38; Tr. 31-35; Adm. Ex. 13).
Beata testified Respondent led her to believe he was working on her mortgage foreclosure case, but he provided no written
record of his work or updates on the status of the case, despite her hundreds of requests for that information. Eventually she
received a vague
PAGE 18:
spreadsheet with charges on it, but it was not the itemization she was seeking. She recalled she would hear from Respondent
when she instructed his office to stop charging her credit card, and she regarded that communication as an effort to buy time.
When no progress was made on her case, Beata contacted the mortgage company but they would not talk to her because she
was represented by counsel. (Tr. 116, 121-22; Adm. Ex. 14; Resp. Ex. 6).
Beata testified she provided documents requested by Respondent and signed anything that had to be signed. She had no
reason not to cooperate with Respondent to achieve her goal of a loan modification, and recalled sending some items to him
more than once. She identified a completed Home Affordable Modification Program ("HAMP") application dated August 1,
2012, and stated it may have been the third one she provided to Respondent. (Tr. 117, 123, 128-30, 136; Resp. Ex. 11).
Respondent recalled that Beata completed the HAMP application because a sale of her property was pending or about to be
scheduled. His computer-recorded Matter Notes, which list his activity and that of his employees on a particular matter,
reflect that on August 16, 2012 Beata was notified she had not returned all of the documents necessary to complete the loan
modification package. Respondent testified Beata was generally reticent about responding to document requests. Another
entry for August 16, 2012 states "[m]ailed loan modification package to BAC." (Tr. 228-30, 236; Resp. Ex. 4).
Respondent testified he proceeded with submitting Beata's loan modification application in mid-August, 2012 knowing that
the bank would eventually demand production of the missing documents. Subsequent entries in his Matter Notes between
September 20 and October 16, 2012 indicate that three additional requests were mailed to Beata for missing documents.
When asked
PAGE 19:
if he produced any of those requests, Respondent testified he turned over everything in his possession. (Tr. 35-36, 230-31,
334-35, Resp. Ex. 4).
On August 23, 2012 Respondent filed a motion to continue the sale of Beata's home, alleging that Beata had applied, and
was being evaluated, for assistance under HAMP. Respondent attached Beata's HAMP application and an affidavit from
Beata stating she believed she was being considered for a loan modification. On September 5, 2012, Respondent was present
in court when his motion was denied, without prejudice. (Ans. at pars. 44, 47; Tr. 35-36; Adm. Ex. 13).
Respondent testified he received notice that a sale of Beata's property would occur, and on September 19, 2012 her property
was sold to a third-party purchaser at a public sale. Shortly thereafter he received notice of the sale. Respondent explained
that Beata's house proceeded to sale even though the HAMP application had been filed because the lender's foreclosure
attorneys work separately from the loan servicers and would not know of, or would ignore, the fact an application was
pending. He testified he notified Beata of the sale by phone and at a meeting in late September. He recalled they also
discussed the possibility of a Chapter 13 bankruptcy, which Beata wanted him to pursue if it would assist her in keeping her
9 of 39 3/23/18, 7:31 PM
home. (Ans. at par. 48; Tr. 36, 137, 238-40).
Beata testified she was not aware of the sale of her home until she received a call from a man inquiring how to close down
the in-ground swimming pool. She learned he had purchased her house at auction for $95,000, even though it had recently
been appraised at $450,000. At the time of the call, Beata was with her daughter in Indiana and "felt her knees come out
from under" her. She testified she called Respondent but did not receive a response for weeks. When
PAGE 20:
she finally spoke to him, he told her not to worry because he could have the sale reversed or if that did not work, she could
file for bankruptcy to regain her house. (Tr. 119-20, 137).
On October 12, 2012 Respondent filed a motion to set aside the sale of Beata's property, stating that, prior to the sale, Beata
had filed a HAMP application and was being evaluated for relief. In an October 22, 2012 email to Beata, he reminded her
they had discussed the sale of her home at their meeting, as well as his submission of her loan application and the option of
filing bankruptcy. In a series of emails that followed, Beata repeatedly stated she did not want to lose the house and asked for
clarification regarding her options of trying to obtain a loan modification or filing for bankruptcy. (Tr. 36, 129; Adm. Ex. 13;
Resp. Ex. 12).
Respondent testified Beata initially was interested in a substantial reduction in her mortgage payment or walking away from
her house without a deficiency judgment, and only toward the end of the foreclosure case did she become adamant about
keeping her house. He testified he advised her that, given the limited nature of her disability income, she probably would not
be able to obtain the modification she needed to stay in her home. He felt confident that the pendency of the loan
modification would delay the confirmation of the sale, but a Chapter 13 filing with the imposition of an automatic stay would
guarantee her more time. (Tr. 235-36, 240-41).
The motion to set aside the sale of Beata's property was scheduled for October 24, 2012. The court struck the motion from
the call because on that same date Respondent filed a Chapter 13 bankruptcy petition on behalf of Beata. (Ans. at pars. 52,
55; Tr. 36, 242; Adm. Ex. 15).
On November 20, 2012, the bankruptcy trustee's office filed and served upon Respondent a motion to dismiss Beata's
bankruptcy case due to the failure to file all of the documents required by the bankruptcy code. Respondent did not file a
response and on November 30, 2012,
PAGE 21:
the bankruptcy judge dismissed Beata's bankruptcy. Additionally, the judge lifted the stay on the occupancy of Beata's
property because the sale had already been completed to a third-party purchaser before Respondent filed Beata's bankruptcy
petition. (Ans. at pars. 56-58; Tr. 37, 242; Adm. Exs. 16-17).
On December 12, 2012, Respondent filed a second bankruptcy petition on behalf of Beata to again pursue the strategy of
buying more time until they had a decision on the loan modification application. Respondent noted that Beata also had
claimed she might have a white knight who could redeem the property. As part of the second bankruptcy case, Respondent
filed a Schedule E form listing the amount of his attorney's fees from Beata as $3,500. As of the filing of the second
bankruptcy petition, Respondent had not obtained any new information affecting Beata's eligibility for relief from the
foreclosure judgment, and again did not include the documents required by the bankruptcy code. Respondent testified that
the objective of the bankruptcy filing was not to confirm a payment plan, but to buy time for the other paths to continue. The
second bankruptcy filing stayed the state court proceedings for thirty days. (Ans. at par. 60; Tr. 38, 242-43, 247-49; Adm.
Exs. 18, 19).
On January 4, 2013, the bankruptcy trustee filed a motion to dismiss the second bankruptcy case. The trustee also requested
an investigation into Respondent's fees, and argued Beata paid more than the $3,500 Respondent claimed in Form E. (Ans.
at par. 65; Tr. 38, 248; Adm. Ex. 20).
On January 13, 2013, the third-party purchasers of Beata's home filed a motion in the foreclosure case to confirm the sale of
Beata's property and grant occupancy to the purchasers, and scheduled the motion for hearing on January 16, 2013. On
January 16 the judge continued the hearing to January 23, 2013 and granted Respondent leave to file a response. As of
10 of 39 3/23/18, 7:31 PM
January
PAGE 22:
23, 2013, Respondent had not filed a response and on that date the court granted the purchasers' motion to confirm their
September 19, 2012 purchase of Beata's property. The court also allowed occupancy of Beata's property in thirty days, or by
February 23, 2013. (Ans. at pars. 66-68; Adm. Ex. 13).
On February 1, 2013, the bankruptcy judge granted the trustee's motion to dismiss Beata's second bankruptcy case due to
Respondent's failure to file required documents. The judge also granted the trustee's request to conduct an examination of
Respondent's fees, and granted time for the parties to address that issue. Respondent testified he had disclosed the fees Beata
paid during the pendency of the bankruptcies, and he believed the trustee's request pertained to that time period. He also
advised the court of work he performed for Beata on a pro bono basis. He testified all his statements to the court were
accurate, and he denied any intention to misrepresent the amount paid by Beata. (Ans. at par. 69; Tr. 38-39, 257-58; Adm.
Ex. 21).
Respondent recalled that the trustee's request challenged the efficacy of the bankruptcy petition, which was filed after the
sale of Beata's house had occurred. Respondent testified he had a good faith argument for filing the bankruptcy petitions, and
submitted case law to the bankruptcy court which indicated a bank could accept a Chapter 13 plan filed after a sale occurred.
(Tr. 248).
On February 22, 2013, Respondent filed a motion to reconsider the January 23, 2013 order confirming the sale of Beata's
property, and scheduled the motion for hearing on March 20, 2013. Respondent raised several arguments, including the
effect of the bankruptcy filings on the confirmation of the sale and the failure of the purchasers to follow proper procedure in
bringing the motion to confirm, and cited statutory and case law in support of his arguments. On March 8, 2013, the
purchasers filed an emergency motion to advance the hearing, to which
PAGE 23:
Respondent did not respond. On March 13, 2013, the court denied, with prejudice, Respondent's motion to reconsider the
approval of the sale and ordered that Respondent and Beata waive all claims and challenges against them in the foreclosure
case. The court also granted occupancy to the purchasers by March 31, 2013. (Ans. at pars. 70-72; Adm. Ex. 13).
Respondent testified he reached out to the attorney for the purchasers of Beata's house to determine if Beata could rent the
house, but he never received a response to his inquiry. He then had his assistant contact the purchaser's real estate agent to
negotiate a payment to Beata if she left the house in "broom-swept" condition. (Tr. 250-52, 334).
Megan Ruettiger, Respondent's employee for six years and his fianc?, testified she kept Beata informed of the status of her
foreclosure case and loan modification matters and requested documents from her on multiple occasions. She recalled Beata
calling the office frequently and sometimes meeting with Respondent in the office. In 2013 Ruettiger had conversations with
Beata regarding a "cash for keys" offer whereby a former owner could receive anywhere between $1,500 and $3,500 from
the bank for vacating a property peacefully and leaving it in good condition. Ruettiger contacted the bank's real estate agent
to pursue an offer for Beata and then communicated the offer to Beata. She recalled Beata being dismissive of the offer at
the time. Ruettiger testified she did not receive authorization to accept the offer. (Tr. 362-70).
Beata did not recall any conversations with Ruettiger regarding a "cash for keys" agreement, and testified she vacated her
home in about March 2013. She was confounded that she paid Respondent approximately $13,000, her house was sold
without her knowledge, and then he would not answer the phone. She recalled attempting to fire him several times but he
would not provide a withdrawal letter to the mortgage company. She denied needing or wanting to file for bankruptcy, since
she had no debt, and testified she only wanted a loan modification.
PAGE 24:
She testified that, because of the bankruptcies, she now has terrible credit and is having trouble buying a home. She
acknowledged she and her former husband filed for bankruptcy in 1997, and she also filed for bankruptcy in 2014 through a
different attorney. (Tr. 120-25, 134).
11 of 39 3/23/18, 7:31 PM
Respondent testified that because of his representation and strategy of prolonging Beata's litigation rather than expediting it,
she was able to stay in her house for two or two and one-half years. He noted he was in communication with her regarding
matters other than the foreclosure defense and loan modification, including an income tax issue, the procurement of an
employer identification number, the incorporation of a business, and reviewing her agreement with another company. He
noted that Beata did not pay additional fees for that work. (Tr. 231-33, 252, 259; Resp. Exs. 8, 9).
Beata could not recall if Respondent did any work relating to a business she started with her daughter but testified if he did,
it was minimal. She acknowledged the articles of incorporation for that business identify Respondent as the incorporator and
the registered agent. She also acknowledged in March 2013 Respondent attempted to negotiate a lease agreement with the
purchaser of her foreclosed property. (Tr. 124, 131; Resp. Exs. 13, 14).
In June 2013 the bankruptcy judge granted the trustee's motion regarding Respondent's fees and found the fees were
excessive. Respondent was ordered to disgorge $1,485 to Beata, which represented the fees she paid in October, November,
and December 2012, and to reimburse her $548 for the filing fees in both bankruptcy cases. Respondent was also ordered to
reimburse the trustee $3,010. He paid the required amounts shortly thereafter. (Ans. at par. 73; Tr. 39, 121, 134, 249; Adm.
Ex. 22; Resp. Exs. 15, 16).
Respondent acknowledged the bankruptcy court made factual findings that the cases were not brought in good faith, which
he agreed was in accordance with black letter law, but he noted
PAGE 25:
that his client benefited from the filings because she had four additional months to stay in her house and to seek a loan
modification. Respondent denied that he intended to file the cases in bad faith. (Tr. 249-50).
C. Analysis and Conclusions
The Administrator charged Respondent with violating Rule 1.3 by conduct including "not having ever submitted Beata's
loan modification application, not filing a response to the summary judgment motion pending against Beata in the
foreclosure case, not alleging a factual basis to the pleadings filed, and not filing supporting documents with the bankruptcy
petitions."
We find that Respondent violated Rule 1.3 by failing to promptly submit Beata's loan modification application. Respondent
was retained by Beata in October 2011 for purposes of representing her in a foreclosure matter and pursuing a loan
modification. As of May 2012 when a judgment of foreclosure was entered against Beata, Respondent had not submitted any
such application on her behalf. Beata testified she completed several applications, including the one dated August 1, 2012
which was admitted into evidence.
Respondent claimed he submitted Beata's application in mid-August 2012. In an email to Beata in October 2012, he
referenced having submitted a loan application on her behalf, but noted the submission was made without having all the
documents from her. It is unclear why he did not have the necessary documents since Beata testified she supplied him with
everything he requested and cooperated with his requests, or why he was still trying to obtain documents nearly a year after
being hired to pursue a loan modification on her behalf. We conclude that submitting an incomplete loan modification
application months after a judgment of foreclosure was entered against his client demonstrates a clear lack of reasonable
diligence.
PAGE 26:
We also find that Respondent violated Rule 1.3 by failing to respond to the summary judgment motion filed in the
foreclosure litigation. Respondent knew the motion was dispositive and would result in a judgment being entered against his
client, yet he took no action to contest the motion.
We do not find that Respondent violated Rule 1.3 by the other conduct asserted. With respect to the charge that he failed to
allege a factual basis to the pleadings he filed, various allegations of the Complaint refer to deficiencies in the affirmative
defenses and motion to reconsider filed in the foreclosure litigation, and in the bankruptcy petitions. Whichever pleadings
12 of 39 3/23/18, 7:31 PM
are involved, we do not view an alleged failure to assert a factual basis as a violation of the rule requiring an attorney to act
with reasonable diligence and promptness.
We also do not find that Respondent violated Rule 1.3 by failing to file supporting documents with the bankruptcy petitions.
His strategy in filing the petitions was to buy time for his client rather than to file a successful petition. Moreover, after the
first bankruptcy petition was dismissed, he promptly filed a second petition to again extend Beata's stay in her house. While
we do not find a failure of diligence by Respondent, we note that his actions with respect to the bankruptcy petitions are
governed by other rules as well, as addressed in later sections.
2. Rule 1.4(a)(3) - failing to keep a client reasonably informed of the status of a matter
The Administrator charged Respondent with violating Rule 1.4(a)(3) by conduct including "not advising Beata that her
property had been sold at a sheriff's sale or explaining its significance, and telling Beata that the sale of her property had
been a ?mistake.'"
We find that Respondent violated Rule 1.4(a)(3) by failing to advise Beata that her property had been sold at a sheriff's sale.
Although we heard conflicting testimony from Beata and Respondent as to how Beata was informed of the news, Beata's
detailed account of the call she received from the buyer of her property, and her shock at receiving the call, was convincing.
PAGE 27:
We simply do not believe she would have fabricated or misremembered that incident and its impact. We further find Beata
was not reasonably informed of the significance of the sale. She testified when she spoke to Respondent after the sale of her
house, he advised her not to worry and that she would get her house back. In subsequent emails to Respondent, she
repeatedly asked for clarification as to how she could keep her house and whether bankruptcy was the best option to achieve
her goal. We find that Respondent did not clearly advise her of her chances of retaining the property or that his primary
strategy was to delay her loss.
We do not find the Administrator proved that Respondent told Beata the sale of her property had been a "mistake." We
received no evidence or testimony, most particularly from Beata, to support that assertion.
3. Rule 3.1 - bringing or defending a proceeding, or asserting or controverting an issue therein, when there was
no basis for doing so that is not frivolous
The Administrator charged Respondent with violating Rule 3.1 by conduct including "filing Beata's first and second
bankruptcies, as well as filing a motion to reconsider approving the motion to confirm, having learned nothing that would
have changed Beata's eligibility for receiving homeowner relief and with the intent to delay Beata's foreclosure case."
Rule 3.1 provides that a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is
a basis in law and fact for doing so that is not frivolous. The 2010 comments to Rule 3.1 state that lawyers are required to:
inform themselves about the facts of their clients' cases and the applicable law and determine that they can make
good-faith arguments in support of their clients' positions. Such action is not frivolous even though the lawyer
believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable
to make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith
argument for an extension, modification or reversal of existing law.
PAGE 28:
We find that Respondent violated Rule 3.1 by filing two Chapter 13 bankruptcy petitions on behalf of Beata for the mere
purpose of delay, rather than for the purpose of arriving at a payment plan to address any indebtedness she had incurred. The
fact Respondent did not bother to file the required supporting documents with either petition supports the conclusion that the
filings were merely frivolous and an abuse of legal procedure. Both bankruptcy petitions were dismissed.
We do not find Respondent's motion to reconsider its ruling on the confirmation of the sale of Beata's property to be
frivolous in violation of Rule 3.1. Although the motion had little chance of succeeding and, like the bankruptcy petitions,
delayed the proceedings, we do not view a request for the court to take a second look at a ruling to be in the same vein as the
initiation of two federal court actions that had no legitimate purpose. Moreover, we heard no evidence that the motion,
13 of 39 3/23/18, 7:31 PM
which cited statutory and case authority, was completely lacking in merit. In our opinion, Respondent's request did not rise
to the level of a Rule 3.1 violation.
4. Rule 3.3(a) - knowingly making a false statement to a tribunal
The Administrator charged Respondent with violating Rule 3.3(a) by conduct including "knowingly understating the amount
of fees he had received from Beata and falsely advising the judge in the foreclosure action that he had submitted Beata's loan
modification application."
We do not find that Respondent made a false statement to the bankruptcy court by stating in a form filed with Beata's second
bankruptcy petition that his fees to Beata were $3,500. While he admitted that his total fees were greater than $3,500, he
explained that he was reporting the amount related to his work on the bankruptcies. We find that explanation to be logical
and credible.
We also do not find that Respondent violated Rule 3.3(a) by stating in a motion to continue the sale of Beata's property filed
August 23, 2012 and in a later motion to set aside the
PAGE 29:
sale filed October 12, 2012, that Beata had applied for assistance under the HAMP program and was being evaluated for
relief. Respondent attached to his motions an application signed by Beata and dated August 1, 2012. Although we saw no
cover letter or confirmation of receipt from the lender to demonstrate that the application was actually submitted,
Respondent testified he submitted the application in mid-August and his matter notes of August 16, 2012 confirm that
submission. In a later email to Beata he referenced having submitted the application, although without all the documents. In
light of the foregoing, we cannot conclude that a false statement was established by clear and convincing evidence.
5. Rule 4.4(a) - using means that have no substantial purpose other than to embarrass, delay or burden a third
person
The Administrator charged Respondent with violating Rule 4.4(a) by conduct including "filing Beata's first and second
have changed Beata's eligibility for receiving relief from the foreclosure judgment, and with the intent to delay Beata's
foreclosure case."
The Administrator asserts, as a violation of Rule 4.4(a), the same conduct that we previously considered with respect to the
Rule 3.1 charge of bringing frivolous proceedings or asserting frivolous issues. Our conclusions in this section correspond to
our earlier findings. We find that a Rule 4.4(a) violation was established with respect to the filing of the bankruptcy petitions,
as Respondent had no substantial purpose other than to delay the foreclosure proceedings and the rights of the bank to
collect on its loan. We have a different view of Respondent's motion to reconsider the approval of the sale of Beata's
property, however, and view that motion as not merely a delaying tactic, but also as a diligent effort to take advantage of an
opportunity in existing litigation to protect his client's interests.
PAGE 30:
6. Rule 8.4(c) - dishonesty, fraud, deceit
The Administrator charged Respondent with violating Rule 8.4(c) by conduct including "knowingly understating the amount
of fees he had received from Beata to the bankruptcy court, that Beata paid Respondent, and falsely advising the judge in the
foreclosure action that he had submitted Beata's loan modification application."
The Administrator asserts, as a violation of Rule 8.4(c), the same conduct we previously considered in relation to the charge
that Respondent made false statements to a tribunal in violation of Rule 3.3(a). For the same reasons stated with respect to
Rule 3.3(a), we conclude in this section that Respondent did not violate Rule 8.4(c) by knowingly understating to the
bankruptcy court the amount of fees he received from Beata. Likewise, as in the prior section, we find that Respondent did
not engage in dishonest conduct by advising the judge in the foreclosure action that he had submitted Beata's loan
modification application.
III. In Count III, Respondent is charged with failing to act with reasonable diligence (Rule 1.3); failing to keep a
14 of 39 3/23/18, 7:31 PM
client reasonably informed and comply with requests for information (Rules 1.4(a)(3) and (4)); failing to
return an unearned fee (Rule 1.16(d)); bringing a frivolous proceeding or asserting a frivolous issue (Rule
3.1); failing to make reasonable efforts to expedite litigation (Rule 3.2); using means that have no substantial
purpose other than to embarrass, delay or burden a third person (Rule 4.4(a)); and engaging in dishonest
conduct (Rule 8.4(c)).
A. Summary
The Administrator charged Respondent with violating eight rules of conduct in connection with his representation of Laura
Wolowiec in a loan modification matter and foreclosure litigation. We find Respondent failed to act with reasonable
diligence, failed to keep Wolowiec reasonably informed and comply with her requests for information, and engaged in
dishonesty by making a false statement to her. Although we found Respondent engaged in misconduct that violated the
rules, we did not find that every specific instance of alleged misconduct was proved.
PAGE 31:
As to the remaining charges, we did not find that Respondent failed to return an unearned fee, brought a frivolous
proceeding or asserted a frivolous issue, failed to make reasonable efforts to expedite litigation, or used means that had no
substantial purpose other than to embarrass, delay or burden a third person.
Laura Wolowiec, a cancer survivor with continuing medical issues and disabilities, testified she met Respondent in
September 2011 when he presented a foreclosure prevention workshop. At that point she was not working due to her
medical condition, and was seeking to reduce her monthly mortgage payments. Wolowiec thought Respondent was
trustworthy and knowledgeable. (Tr. 140-41).
On September 27, 2011 Wolowiec met with Respondent's employee, signed an engagement agreement, and agreed to pay
Respondent $950 for the first month and $495 per month thereafter by automatic charges to her credit card. After receiving a
loan modification packet, she completed the paperwork and returned it to Respondent. (Tr. 142-43; Adm. Exs. 23, 24).
Respondent testified Wolowiec hired him to file a loan modification application with respect to her property in Illinois, but
she also owned property in Florida. He noted a problem in that she identified both properties as primary residences. In
addition, her income was cash-based and because she did not receive a W-2 or 1099 tax form and only deposited enough
funds in the bank to cover her immediate bills, she could not provide bank records or pay stubs to show she was able to pay
her mortgage. When Respondent met with Wolowiec in November 2011, he advised her to deposit excess cash in her
account. (Tr. 40, 260-64).
Respondent testified that after Wolowiec completed the necessary documents for the loan modification, he submitted her
application to Fifth Third Bank. ("Fifth Third"). Although he
PAGE 32:
devised a profit/loss statement to reflect her income, he noted a constant battle with the bank to verify her true earnings. His
Matter Notes indicate the application was sent to Fifth Third on January 9, 2012, and on January 20, 2012 the application
was declined due to Wolowiec's inability to cover her expenses. (Tr. 40, 260, 264-65; Adm. Ex. 24; Resp. Ex. 18).
Wolowiec testified she was advised by Respondent on January 24, 2012 that her application had been denied and she was in
a second look program with the bank. She then continued to send bank statements and other documents to Respondent, and
received confirmation the documents were received. Emails between Wolowiec and Respondent, as well as Respondent's
Matter Notes, reflect that multiple requests were made to Wolowiec for documents. Respondent's notes further reflect that a
second application was submitted to Fifth Third in November 2012, but it was denied due to missing documents. (Tr. 48,
144; Adm. Ex. 28; Resp. Ex. 18).
April 4, 2012 Court Date
On February 8, 2012, Wolowiec was served with a foreclosure complaint filed by Fifth Third, which she emailed to
Respondent the next day. A case management conference was scheduled for April 4, 2012. Wolowiec testified she wanted an
15 of 39 3/23/18, 7:31 PM
attorney to represent her because her medical issues, of which Respondent was aware, made it difficult for her to go to court.
Respondent and Wolowiec agreed that Respondent would continue to assist Wolowiec in attempting to modify the terms of
her existing mortgage, appear on her behalf at the April 4, 2012 return date in the foreclosure case, and represent her in that
case until the matter was resolved. Wolowiec set up a meeting with Respondent for April 5, 2012 to learn what occurred in
court. (Ans. at par. 81; Tr. 41, 141-45, 266; Adm. Ex. 25).
On April 4, 2012, the court entered a form order with an "x" next to the following selection: "[t]his case is stricken from the
case management call, the Court having determined
PAGE 33:
that no further case management conference is necessary." The order reflects that counsel for plaintiff appeared, but the
space for listing anyone present on behalf of defendant(s) was left blank. (Ans. at par. 82; Adm. Ex. 25; Resp. Ex. 19).
Wolowiec recalled that on April 5, 2012, Respondent reported that not much had occurred at the first hearing and she would
have 28 days to file a response, with the next court date in 45 days. Wolowiec had no reason to disbelieve Respondent. One
week later, she received a letter from Respondent's office advising her, in a handwritten portion of the letter, that the court
date of April 4, 2012 had been cancelled because not all defendants had been served. Wolowiec was furious and alarmed
because Respondent had told her he was in court. She immediately contacted his office by phone and email, but denied ever
getting a straight answer. On May 23, 2012, she received information from opposing counsel showing she had not appeared
in court on April 4, 2012, and the other defendants had been served on February 6, 2012. Wolowiec recalled contacting
Respondent's office, leaving messages, and receiving no response. (Tr. 143-47, 164; Adm. Ex. 26).
Respondent testified he appeared in court on April 4, 2012 and, as was the practice when defense counsel appeared, the
matter was taken off the call with no future date given. He explained that an order entered in such a situation would not
reflect his appearance, and would merely state that the case was taken off call. When he met with Wolowiec the following
day, he believed he provided an accurate picture of what occurred, advised her the matter had been taken off call, and no
further dates were set. Respondent acknowledged his Matter Notes do not reflect his appearance in court on April 4, 2012 or
his meeting with Wolowiec on April 5, 2012. The notes do indicate court results were sent to Wolowiec on April 12, 2012.
(Tr. 41-42, 267-71, 347-48; Resp. Ex. 18).
PAGE 34:
Regarding the letter from Respondent's office to Wolowiec advising her that the hearing date had been cancelled,
Respondent identified the handwriting as that of his paralegal and he did not recall if he reviewed the letter before it was
sent, or what direction he had given to his paralegal. He characterized the information as a "misnomer" and testified he had
no reason to misrepresent what happened on April 4, 2012. He recalled Wolowiec was very upset and believed he had
misrepresented what happened in court. He understood Wolowiec's confusion, but after explaining to her that the hearing
had not been cancelled and had been taken off the call, he thought she understood and was satisfied. (Tr. 42, 269-71, 338-39;
Adm. Ex. 26).
Answer and Affirmative Defenses
As of May 10, 2012, Respondent had not filed an appearance on behalf of Wolowiec. On that date Fifth Third filed a motion
for default and set the motion for hearing on June 20, 2012. (Ans. at par. 89; Tr. 42-43; Adm. Ex. 25).
Wolowiec testified she met with Respondent at the end of May and questioned why he had not filed an appearance. She
recalled he advised that an appearance was not to her benefit as it would move the case forward, but he did provide
documents, including an appearance dated May 25, 2012, which she understood had been filed on that date. She later learned
the documents were not filed until May 31 or June 1, 2012. (Tr. 148-49, 152; Adm. Ex. 27).
Wolowiec testified that after the meeting she still did not understand why Respondent told her he was in court on April 4,
2012. She described her communications with Respondent as "horrible" because she constantly called and emailed, and he
rarely responded. She began going to court hearings in her foreclosure case to make certain he was present. (Tr. 148-49, 152,
164; Adm. Ex. 27).
Respondent testified when he met with Wolowiec around May 25 or 26, 2012, he informed her of the motion for default and
16 of 39 3/23/18, 7:31 PM
provided her with copies of his appearance and
PAGE 35:
answer, a motion to file those documents, and a notice to set his motion for hearing on June 20, 2012. Respondent's strategy
in not filing an answer earlier was to delay the litigation, and his past experience told him if he appeared on the default date
he would be given additional time to file an answer. The documents bear a typewritten date of May 25, 2012 next to his
name, which, Respondent explained, was about when he gave them to a court runner for filing. He recalled advising
Wolowiec of that procedure, telling her the documents would appear online in a few days, and thinking she understood. He
denied telling her the documents had already been filed, and testified he had no reason to mislead her. He noted he could
have filed the documents any time up to three days before the date for the default hearing, and Wolowiec was not harmed by
any delay. (Tr. 272-76, 354; Adm. Ex. 27).
On June 1, 2012, Respondent's appearance, along with Wolowiec's answer and affirmative defenses and a motion for leave
to file those documents, were filed with the court. The file-stamped copies of the appearance and notice of motion bear a
typewritten date of May 31, 2012 next to Respondent's signature. Wolowiec's answer stated that she had insufficient
knowledge as to the allegations of the foreclosure complaint. Included with her answer was Respondent's own affidavit
attesting to the accuracy of the statements regarding insufficient knowledge. (Ans. at par. 94; Tr. 43, 276; Adm. Ex. 25).
On June 20, 2012 Respondent appeared in court with Wolowiec. On that date an order was entered denying the motion to
file an appearance, answer and affirmative defenses, but granting Wolowiec leave to file an amended answer by July 11,
2012. The order further stated that the answer and affirmative defenses were filed in violation of Rule 137, and directed
Respondent to pay $250 to Fifth Third's counsel. Respondent admitted, in his answer to the Complaint, that the initial
answer was stricken as "incomplete based on its lack of detail."
PAGE 36:
During his testimony, he recalled that the judge took issue with a statement in Wolowiec's answer that she had insufficient
knowledge as to whether she was the owner of the property in question. Respondent agreed the answer was erroneous, and
testified he paid the $250. (Ans. at par. 95; Tr. 43, 276-78; Adm. Ex. 25).
On July 10, 2012 Respondent filed an amended answer and affirmative defenses which admitted many of the allegations, but
stated Wolowiec had insufficient information to answer two of the allegations. Respondent again attached his own affidavit
attesting to the accuracy of the statements regarding insufficient knowledge. Firth Third filed a motion to dismiss the
affirmative defenses, as well as a motion for sanctions against Respondent, for continuing to claim his own insufficient
knowledge to answer the complaint allegations. The motion pointed out that the court had sanctioned Respondent for
violating Rule 137 because he had filed his own affidavit, rather than one signed by Wolowiec, verifying the lack of
sufficient knowledge. (Ans. at pars. 96, 97; Tr. 44, 278-79; Adm. Ex. 25).
On September 21, 2012 the amended answer and affirmative defenses were stricken by the court and Wolowiec was given
leave to file a second amended answer and affirmative defenses within fourteen days. The court's order did not state the
reason the answer and affirmative defenses were stricken. The court record reflects that Respondent filed another amended
answer and affirmative defenses on October 5, 2012 which was identical to the previous answer and affirmative defenses,
except for the last page which was an affidavit in Wolowiec's name attesting to her insufficient knowledge regarding
allegations of the foreclosure complaint. (Ans. at pars. 99, 100; Tr. 44-45, 279; Adm. Ex. 25).
March 22, 2013 Court Date
On January 16, 2013, the court entered an order allowing Firth Third to file a response to Wolowiec's second amended
answer and affirmative defenses, giving Wolowiec time to reply,
PAGE 37:
and setting the case for status on March 22, 2013. Wolowiec testified she was in court with Respondent on January 16.
Shortly thereafter, Respondent and Wolowiec received notice of Fifth Third's response to Respondent's second amended
affirmative defenses. Respondent did not file a reply. (Ans. at par. 102; Tr. 150; Adm. Ex. 25).
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Wolowiec testified she tried to reach Respondent for an explanation of the papers she received from opposing counsel and
what would happen at the next court date. On March 21, 2013 she received an email from Respondent advising her there
would not be a court hearing the next day. When she questioned why she had not been notified of a change, he replied, in
part:
No, there won't be a hearing tomorrow. . . . That's ok, we can put it back on the court schedule. Not a big deal. We
often don't know until the days before because neither I nor the bank's attorneys can predi ct their schedules weeks in
advance as they change daily.
(Tr. 46, 49, 150-53; Adm. Ex. 28).
Respondent acknowledged that the March 22, 2013 court date had not been cancelled and, in fact, he was present at the
hearing that day, at which time an order was entered striking the second amended affirmative defenses for failure to allege
facts sufficient to establish a valid affirmative defense. The order confirms that the parties appeared through their counsel.
Respondent testified he believed the affirmative defenses did state a claim. (Ans. at par. 108; Tr. 46, 280; Adm. Ex. 25).
Between March 22 and April 3, 2013 Respondent did not file additional affirmative defenses or any other document in
Wolowiec's defense, but he testified he did propound written discovery requests. On April 3, 2013 Fifth Third filed and
served upon Respondent a motion for summary judgment against Wolowiec, as well as a judgment of foreclosure and sale,
and notified Respondent the motions were scheduled to be heard on June 11, 2013. Respondent testified he discussed the
filings with Wolowiec, but did not file a response to the motion for summary
PAGE 38:
judgment because he had seen the promissory note that was secured by the mortgage, and had no bona fide response. (Ans.
at par. 111; Tr. 280, 288, 355-56; Adm. Ex. 25).
Wolowiec testified after she received Respondent's email regarding the cancelled hearing, she did not hear from him again
until April 3, 2013 when he advised her that he and opposing counsel had agreed not to have a hearing on March 22, 2013.
The following day she checked online and saw that multiple documents had been filed by opposing counsel as of April 3,
2013. When she emailed Respondent requesting an explanation, he replied by email that he does not check or rely on the
online docket. On May 1, 2013, Wolowiec sent Respondent an email in which she advised him she had not heard from his
loan modification employee and inquired about a June 11, 2013 court date. A week later she sent an email stating she was
waiting for a response and inquired, again, about the court date. She testified she received no reply. (Tr. 49-50, 154-56; Adm.
Ex. 28).
Respondent testified his communication with Wolowiec around April and May of 2013 was regular and consistent. He also
knew she was checking the court docket daily and had noticed the filing of the motion for summary judgment before he was
even served with it. He did his best to respond to her inquiries, and often responded by telephone as he did after her May 1,
2013 email. At that time he advised her there was a hearing on the summary judgment motion and he believed a briefing
schedule would be set. He recalled that Wolowiec did not seem upset. Respondent acknowledged that his Matter Notes do
not reflect that phone call. Respondent denied telling Wolowiec a court date in May was cancelled. (Tr. 281-83, 287-88, 349;
Adm. Ex. 28; Resp. Ex. 18).
Termination and Offer of Refund
On May 29, 2013 Wolowiec sent Respondent a certified letter terminating his representation, asking him to file a motion to
withdraw by June 11, 2013, and requesting that he
PAGE 39:
return her file. On June 3, 2013, Wolowiec faxed another copy of the letter to Respondent, which he received shortly
thereafter. (Ans. at par. 113; Tr. 47, 155-56, 284-85; Adm. Ex. 28).
On June 11, 2013 Wolowiec appeared in court, pro se. After she explained she had recently terminated Respondent, the court
struck his appearance from her case. On June 18, 2013 she received an email from Respondent asking how she would like
her file, and offering a partial refund because she seemed unhappy with his representation. Several days later she sent a reply
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in which she noted that he had ignored her questions and attempts to contact him and had not completed her loan
modification after twenty months. She requested a refund of $7,000 from the more than $10,000 she paid him, and asked
that her file be sent to her home. On August 8, 2013, she received her file, but she never received any refund. (Ans. at pars.
114, 118; Tr. 47-48, 157-60, 286, 339; Adm. Ex. 28).
Respondent testified he offered a partial refund to Wolowiec even though he believed he earned his fees, and denied
receiving a concrete answer from her. He testified his Matter Notes regarding Wolowiec's foreclosure and loan modification
matters are a true and accurate record of the services his firm performed for her. Those notes reflect numerous mailings to
Wolowiec regarding the loan modification and foreclosure litigation, court hearings and filings, and telephone calls received
from Wolowiec with notes to contact her. (Tr. 286, 289; Adm. Ex. 28; Resp. Exs. 17, 18).
Sometime after her court appearance, Wolowiec contacted Fifth Third and learned it never received documents that were
requested in November 2012. Further, the bank had sent a notification in April 2013 advising her that because nothing had
been done with her file, it had been sent to the denial room. Thereafter she received a loan modification packet from Fifth
Third which she completed and returned within a few days. After she got the ball rolling, she
PAGE 40:
hired a new attorney and he took over her matter. Within three months she received an offer from the bank for a loan
modification. After some negotiation, she accepted the offer and started making payments in November 2013. (Tr. 158-59).
Wolowiec testified Respondent never told her he would not go to court or file documents for her. She believes he is a con
artist and were it not for her new attorney, who was excellent, she would have a negative opinion of attorneys. (Tr. 159-61).
C. Analysis and conclusions
The Administrator charged Respondent with violating Rule 1.3 by conduct including "not submitting a loan modification
application for Wolowiec, not attending the April 2012 return date, not timely filing an appearance or answer for Wolowiec
and, twice, filing incomplete pleadings on behalf of Wolowiec that the judge struck each time."
We find the Administrator proved a violation of Rule 1.3 with respect to Respondent's failure to file a timely appearance or
answer on behalf of Wolowiec. The evidence shows that although Wolowiec was served with the foreclosure complaint on
February 8, 2012, Respondent filed nothing on her behalf until June 1, 2012, at which time he filed his appearance and a
motion for leave to file an answer and affirmative defenses. By that time the plaintiff had already filed a motion for default
and judgment of foreclosure, and had noticed the motion for hearing.
We find the other asserted conduct was not proved. With respect to the charge that Respondent failed to submit a loan
modification application on behalf of Wolowiec, Respondent testified he did submit her application to the bank. His Matter
Notes confirm that the submission occurred on January 9, 2012, and thereafter the application was denied on January 20,
2012. Consistent with those notes, Wolowiec acknowledged she was told in January 2012 that her
PAGE 41:
application had been denied. Respondent's notes further indicate that his office continued to request documents from
Wolowiec, and another package was submitted in November 2012.
With respect to Respondent's attendance at the April 4, 2012 case management conference, Respondent testified he appeared
on that date, at which time the case was stricken from the case management call. He and Wolowiec both agreed that he
reported the court events to her the following day. The fact Respondent's name does not appear on the form order entered on
April 4, 2012 does not convince us that he did not appear on that date, nor does a follow-up letter to Wolowiec which
mistakenly described the April 4, 2012 hearing as being cancelled. Respondent identified the handwriting in the letter as that
of his paralegal, and we received no evidence to the contrary. Given Respondent's testimony, which we viewed as credible,
we find no clear and convincing evidence that he failed to appear at the court hearing.
We also do not find that Respondent failed to act with diligence by filing "incomplete pleadings" on two occasions.
Respondent filed an answer and affirmative defenses on Wolowiec's behalf, and then timely filed amended pleadings on two
19 of 39 3/23/18, 7:31 PM
occasions after they were first refused by the court and then stricken. We have already found his initial delay in filing the
pleadings was a violation of Rule 1.3, but the fact his subsequent filings were deficient in some respect does not establish a
lack of diligence on his part.
2. Rule 1.4(a)(3) - failing to keep a client reasonably informed of the status of a matter and Rule 1.4(a)(4) -
failing to comply with reasonable requests for information
The Administrator charged Respondent with violating both Rule 1.4(a)(3) and 1.4(a)(4) by conduct including "not
responding to Wolowiec's emails and telephone calls, falsely stating he went to the April 2012 return date when he had not
done so, and falsely claiming that the May 2013 hearing date had been canceled."
PAGE 42:
Some overlap exists between sub-paragraphs (3) and (4) of Rule 1.4(a), as they both fall under the general category of
"Communication," and both deal with information to be provided to clients. In this case the Administrator charged the exact
same conduct as violating Rule 1.4(a)(3) and 1.4(a)(4). Our reasoning, as set forth below, is the same for both sub-
paragraphs.
We first address the conduct involving Respondent's representation that a hearing was canceled. As a preliminary matter, we
note the Administrator alleged in paragraphs 105 and 106 of the Complaint, and charged in paragraphs 120(b) and (c) of the
Complaint, that a false statement was made regarding a hearing set for May 22, 2013. Other paragraphs of the Complaint
(par. 102, 104, 108), as well as the evidence, make clear that the hearing at issue was the March 22, 2013 hearing. No
hearing was ever set for May 22, 2013. We regard the reference to "May" rather than "March" as a clerical error which is
obvious in the context of the other paragraphs of the Complaint. Respondent's counsel noted the confusion in his closing
argument but did not claim prejudice by the Administrator's inaccuracy, nor do we find any.
The evidence showed that Wolowiec sent several emails to Respondent specifically requesting information regarding the
hearing set for March 22, 2013. On March 21, 2013, Respondent replied that the hearing was cancelled. Respondent's
statement was incorrect as the hearing had not been cancelled and, in fact, he attended the hearing on March 22, 2013. By
failing to provide Wolowiec with accurate information regarding her hearing, we find he violated Rules 1.4(a)(3) and (4).
We find the Administrator did not prove Respondent violated Rule 1.4(a)(3) or (4) by failing to respond to Wolowiec's
emails and telephone calls. Although Wolowiec testified that her communication with Respondent was "horrible" and some
of her emails reflect frustration at his lack of immediate response to her inquiries, her testimony, as well as other evidence,
showed
PAGE 43:
that she had in-person meetings with Respondent, accompanied him to court hearings, received information by telephone
and mail, and corresponded with him by email. Respondent's Matter Notes reflect consistent communication with Wolowiec
relating to both her loan modification matter and her foreclosure case.
We also find the Administrator did not prove Respondent violated Rule 1.4(a)(3) or (4) by falsely representing his
appearance at the April 4, 2012 case management conference. As we discussed in an earlier section, we accepted
Respondent's testimony that he was in court for that hearing and that he reported the information to Wolowiec when they
met the following day. We note that no motions were set for hearing that day, and no substantive rulings were made by the
court.
3. Rule 1.16(d) - failing to refund any advance payment that has not been earned
The Administrator charged Respondent with violating Rule 1.16(d) by conduct including "offering to return half of his fees
to Wolowiec and then not doing so."
We find this charge was not proved by clear and convincing evidence. The evidence showed that Respondent, after being
terminated, offered Wolowiec a partial refund because she seemed unhappy with his representation. He did not specify a
particular amount or indicate in any way that he did not earn all the fees paid by Wolowiec. Wolowiec countered with a
request for $7,000, which was approximately 70% of what she claimed she had paid Respondent.
20 of 39 3/23/18, 7:31 PM
The Administrator simply did not prove that any portion of Respondent's fees were unearned. The evidence, including
Wolowiec's own testimony, indicated considerable activity regarding both the loan modification application and the
foreclosure case, including court appearances and filings, compilation of financial information, communications with Fifth
Third, and correspondence and meetings with Wolowiec herself.
PAGE 44:
The Administrator charged Respondent with violating Rule 3.1 by conduct including "filing an amended answer and
affirmative defenses that were identical to the answer and affirmative defenses that had been struck by the court, as well as
an identical amended answer and affirmative defenses, both of which were the same and without new facts."
The Administrator's charge rests on the assertion that Respondent re-filed identical pleadings after initial pleadings were
stricken or denied. We find the charge was not proved. The court records show that Respondent prepared an answer, along
with affirmative defenses, on behalf of Wolowiec and submitted it to the court on June 1, 2012 along with a motion for leave
to file the pleading. The answer, in which Wolowiec claimed insufficient knowledge of every allegation of the foreclosure
complaint, was supported by Respondent's personal affidavit attesting to the accuracy of the claim of insufficient knowledge.
The court refused to allow the filing and found, on its own motion and without written explanation, that the pleading
violated Supreme Court Rule 137. Respondent then filed Wolowiec's amended answer and affirmative defenses which,
unlike the initial answer, admitted many of the allegations of the foreclosure complaint. Two allegations were denied on the
basis of insufficient knowledge, and Respondent again submitted his own affidavit attesting to the accuracy of those
answers.
After the amended answer and affirmative defenses were stricken, Respondent filed another amended answer and affirmative
defenses, which substantively were the same as the previous answer and affirmative defenses, but he attached Wolowiec's
personal affidavit attesting to the accuracy of her claim of insufficient knowledge. Wolowiec's second amended answer was
challenged only with respect to the affirmative defenses, which were ultimately dismissed months later on Fifth Third's
motion.
PAGE 45:
As the initial answer and the first amended answer were different in substance, and the second amended answer added the
Wolowiec affidavit, we do not conclude that Respondent was submitting identical answers on a repeated basis or that he was
trying to defy or circumvent a court ruling. We believe he was attempting to correct some deficiency, although we do not
know exactly what the deficiency was since the court orders do not specify the reason for refusing or striking the pleadings,
and we do not have a transcript of the court hearings. It appears that a key problem was the supporting affidavit that
Respondent filed in his own name. As for the affirmative defenses, the court made no comment on the substance of the
defenses, nor did the Administrator explain why they were frivolous. We find therefore that the Administrator did not
establish, by clear and convincing evidence, the frivolous nature of Respondent's filings or a violation of Rule 3.1.
The Administrator charged Respondent with violating Rule 3.2 by conduct including "failing to file a loan modification
application for Wolowiec and filing incomplete pleadings on behalf of Wolowiec, twice, that the judge struck each time."
The foregoing conduct was previously asserted to constitute a lack of diligence in violation of Rule 1.3. We found the
conduct did not violate Rule 1.3 and, for the reasons stated in that section, we also find a violation of Rule 3.2 was not
proved. In addition, Respondent's efforts with respect to the loan modification application were separate from the foreclosure
litigation. Therefore, even if Respondent had failed to file an application on behalf of Wolowiec, that failure did not involve
litigation and would not constitute a violation of Rule 3.2.
PAGE 46:
person
21 of 39 3/23/18, 7:31 PM
The Administrator charged Respondent with violating Rule 4.4(a) by conduct including "filing Wolowiec's first and second
have changed Beata's eligibility for receiving homeowner's relief, and with the intent to delay Wolowiec's foreclosure case."
This charge was clearly asserted in error as there was no evidence or allegation that Respondent filed any bankruptcies on
behalf of Wolowiec, nor did he file a motion to reconsider a ruling on a motion to confirm. The charge makes reference to
"Beata," who was the client in Count II, and asserts conduct that was involved in Count II. Accordingly, we dismiss this
charge.
The Administrator charged Respondent with violating Rule 8.4(c) by conduct including "misrepresenting to Wolowiec the
status of her case and the court schedule."
Unlike the charges in the foregoing sections, the charging paragraph with respect to Rule 8.4(c) does not set forth the precise
misrepresentations asserted to violate that rule. The factual allegations of the Complaint describe several false statements by
Respondent and we view those paragraphs as forming the basis for the Rule 8.4(c) charge.
The Administrator alleged Respondent falsely advised Wolowiec of his presence in court for the April 4, 2012 case
management conference, and then sent her a letter falsely stating the hearing date had been cancelled because the defendants
had not been served. We previously addressed those facts in relation to our discussion of Rules 1.3 and 1.4(a)(3) and (4), and
accepted Respondent's testimony that he was present in court on April 4, 2012 and accurately
PAGE 47:
reported that fact to Wolowiec. We view the follow-up letter, which Respondent asserted was drafted by a paralegal, to be
nothing more than a mistaken account of the initial court conference. Therefore we find Respondent's conduct with respect
to the April 4, 2012 court date did not violate Rule 8.4(c).
The Administrator also alleged that Respondent falsely told Wolowiec that he filed an appearance and answer on her behalf
on May 25, 2012 when, in fact, he filed those documents, with a motion for leave to file, on June 1, 2012. The evidence
shows that Respondent met with Wolowiec at the end of May and showed her a copy of the appearance and answer he had
prepared. Wolowiec understood from Respondent that he filed those documents on May 25, 2012, which date appeared next
to Respondent's signature on each of the documents. Respondent denied telling Wolowiec the documents had been submitted
to the court, and testified that May 25 was the date he gave the documents to a runner for filing. The documents as presented
to Wolowiec bore no file-stamp and, as Respondent pointed out, he could have filed them anytime up to three days before
the default hearing that was set for June 20, 2012. We see no reason for him to misrepresent the filing date to Wolowiec, and
conclude that he did not engage in dishonest conduct in violation of Rule 8.4(c).
Finally, the Administrator alleged that Respondent made a false statement when he advised Wolowiec on March 21, 2013
that a hearing scheduled for the following day was cancelled. We previously addressed this statement and found Respondent
provided incorrect information to Wolowiec. The hearing was not cancelled and, in fact, Respondent attended the hearing.
Respondent offered no plausible explanation for the information he provided to Wolowiec, nor did he claim he was confused
at the time about the court date. We find
PAGE 48:
Respondent's representation regarding the cancellation of the hearing was dishonest in violation of Rule 8.4(c).
IV. In Count IV Respondent is charged with failing to act with reasonable diligence (Rule 1.3); failing to keep a
client reasonably informed (Rule 1.4(a)(3)); failing to comply with reasonable requests for information (Rule
1.4(a)(4)); failing to withdraw from representation after being discharged (Rule 1.16(a)(3)); failing to comply
with applicable law when terminating a representation (1.16(c)); failing to return an unearned fee (Rule
1.16(d)); bringing a frivolous proceeding or asserting a frivolous issue (Rule 3.1); failing to make reasonable
efforts to expedite litigation (Rule 3.2); and engaging in dishonest conduct (Rule 8.4(c)).
A. Summary
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The Administrator charged Respondent with violating nine rules in connection with his representation of Renee Fajutrao in a
foreclosure action. We find Respondent failed to act with reasonable diligence, failed to comply with reasonable requests for
information, failed to keep Fajutrao reasonably informed, failed to withdraw from representation after being discharged,
failed to comply with applicable law when terminating a representation, filed a frivolous motion, failed to make reasonable
efforts to expedite litigation, and engaged in dishonest conduct.
The charge of failing to return an unearned fee was not proved.
In 2011 Rene Fajutrao owned a home in Morton Grove. In September of that year she attended a foreclosure prevention
conference where she met Respondent. When Citicorp Bank filed a foreclosure action against her and her husband in
November 2011, she hired Respondent to defend her in that action. She signed an engagement agreement, and agreed to pay
an initial fee of $950 and $495 per month thereafter by automatic debits to her checking account. (Tr. 50, 166-69; Adm. Exs.
30, 31).
A case management conference in Fajutrao's foreclosure case was scheduled for January 5, 2012. Fajutrao and Respondent
agreed that Respondent would attend court on that date, file
PAGE 49:
his appearance, and defend her in the case. Fajutrao recalled Respondent telling her she did not have to appear. (Ans. at par.
122; Tr. 51, 172; Adm. Ex. 31).
On January 5, 2012, Respondent did not attend the scheduled conference and on that date, the judge determined that no
further case management conferences were needed since the plaintiff, who was present in court that day through its counsel,
provided proof that it had served all parties. Shortly thereafter, Fajutrao received the court order, called Respondent, and told
him about it. (Ans. at par. 123).
As of March 14, 2012, Respondent had not filed his appearance or any answer or other pleadings on Fajutrao's behalf. On
March 14, 2012, Citicorp filed and served on Fajutrao a motion for default and motion for judgment for foreclosure with
notice that a hearing on the motion had been scheduled for April 4, 2012. Although Fajutrao sent notice of the motion to
Respondent and he received it shortly thereafter, he did not contact Fajutrao or file anything on her behalf in response to
Citicorp's motion. (Ans. at pars. 124-25; Tr. 52).
Between March 14 and April 4, 2012, Fajutrao called Respondent at least three times and left messages asking to discuss the
upcoming hearing on Citicorp's motion for default. Respondent admitted he received those messages shortly after Fajutrao
left them, but did not contact her. (Ans. at par. 126).
Fajutrao recalled Respondent suggesting that she apply for a loan modification, and she agreed, but she also trusted he would
go forward with the foreclosure defense. She completed documents and returned them to Respondent, and had no reason not
to cooperate with him. Although Respondent advised her he would take care of the foreclosure case and never said he would
not go to court, Fajutrao felt he was concentrating on the loan modification. She identified a copy of an application, dated
March 26, 2012, which she and her husband signed and
PAGE 50:
which Respondent helped her prepare. Respondent testified he submitted the application by fax and mail. (Ans. at par. 129;
Tr. 169-70, 182-84, 343; Adm. Ex. 33; Resp. Ex. 21).
As of April 4, 2012, Respondent still had not filed an appearance in Fajutrao's foreclosure case and on that date, the court
granted Citicorp's motion for default and entered a judgment of foreclosure and order of sale. Respondent acknowledged he
failed to appear in court on April 4, 2012, and testified he was not consciously aware of the foreclosure case. He explained
that in previous years he had used a Florida litigation support company to handle his case management and docketing but
when he terminated that company at the end of 2011 and transferred his files to his own staff, he did not receive or have
knowledge of the Fajutrao file. He testified he was aware of the loan modification, but that matter was handled separately
from the litigation. The crux of his communication with Fajutrao dealt with the loan modification. (Ans. at par. 127; Tr.
23 of 39 3/23/18, 7:31 PM
52-53, 290-92; Adm. Ex. 31; Resp. Ex. 20).
Respondent admitted Fajutrao sent a copy of the April 4, 2012 court order to him and he received it, although he has no
specific recollection of being sent pleadings or litigation-related documents. He also admitted Fajutrao called him and left a
message regarding the order, which message he received soon after, but did not return her call. He knows he should have had
better communications with Fajutrao regarding the foreclosure case and had he appeared in court, he could have extended
the time of possession and perhaps had another opportunity to obtain a loan modification. He acknowledged he was wrong
and completely abrogated his duty by not appearing, but stated his inaction was reckless rather than knowing. (Ans. at par.
128; Tr. 292-93, 341, 354-55).
Fajutrao testified Respondent did not send her updates regarding the foreclosure case and never advised her that her house
was going to be sold at auction. When she told Respondent an
PAGE 51:
auction was listed in the newspaper, he assured her the house could not be sold because the loan modification was pending.
In July 2012 Fajutrao learned from Respondent of the bank's decision that she was not eligible for any sort of loan
modification. Respondent testified he attempted a total of three modifications for the Fajutraos, all of which were
unsuccessful. (Tr. 173-74, 185, 293; Resp. Ex. 22).
On July 16, 2012, Fajutrao's property was sold at a public auction. One week later Citicorp filed a motion to confirm the sale
and shortly thereafter, Fajutrao received notice of the motion and sent it to Respondent. Respondent received a copy of the
motion soon after, but he did not file a response. On August 15, 2012, when Respondent still had not filed an appearance,
answer or other pleading on Fajutrao's behalf, the court entered an order confirming the sale of Fajutrao's property. (Ans. at
pars. 130-32; Tr. 53-54; Adm. Ex. 31).
Fajutrao recalled receiving documents, including the order confirming sale and order of possession, from Citicorp's lawyer.
She sent the documents to Respondent and called and texted him with questions, but either she did not receive an answer or
he would promise to get back to her and then not follow through. She consulted another lawyer who advised her to go to
court the next day and request an extension of time to stay in her house. (Tr. 173-77; Adm. Ex. 35).
On September 14, 2012, Fajutrao filed her own pro se appearance and motion to extend the time for possession of her home,
which motion was granted on September 17, 2012 and the time of possession extended to October 15, 2012. Respondent
was not in court that day. On the same day the motion was granted, Fajutrao sent Respondent a letter terminating his
representation and requesting the return of her file. She expected him to do so within thirty days as specified in the
engagement contract, but she has never received any documents. (Tr. 54-55, 175-77; Adm. Exs. 30, 31, 36).
PAGE 52:
After Fajutrao sent the termination letter to Respondent, he invited her to his office where they met on September 20, 2012.
Fajutrao recalled Respondent showing her documents he purportedly filed in court and telling her if she was unhappy with
his representation, he would refund her money. A motion to vacate the default judgment was not file-stamped and Fajutrao
was not convinced he had filed it. When asked about an appearance form that was file-stamped September 19, 2012,
Fajutrao did not believe it was included in the materials Respondent showed her at their meeting. (Ans. at par. 139; Tr. 55,
177-78, 186; Adm. Ex. 37; Resp. Ex. 23).
Respondent testified he filed his appearance on September 19, 2012. When Fajutrao came to his office, he expressed his
regret for missing the court dates, advised her she may have grounds for vacating the judgment or sale, and showed her a
copy of a motion to vacate the default and a notice of motion. Respondent admitted, in his answer to the Complaint, that
although he had scheduled his motion to be heard on November 19, 2012, he hand-wrote October 19, 2012 as the hearing
date on the documents he gave to his client. (Ans. at par. 139; Tr. 55, 294-96; Adm. Exs. 31, 37).
Copies of the notice of motion contained in the court file bear a typewritten hearing date of October 19, 2012, with
"October" crossed out and replaced by a handwritten "11/19" or "November." On the copy presented to Fajutrao, "Nov." is
crossed out and "Oct." reinserted. (Tr. 55-56, 179, 295-96; Adm. Exs. 31, 37).
Respondent explained that when he filed the motion he thought it would be scheduled for October, but instead it was set for
24 of 39 3/23/18, 7:31 PM
November. When he initially showed the motion to Fajutrao, he advised her incorrectly that it would be heard in October. He
testified the timing did not impact Fajutrao because she was not scheduled to be evicted until December 2012. Respondent
recalled that Fajutrao agreed to his proposal of moving forward. (Tr. 295-97).
PAGE 53:
On September 24, 2012 Fajutrao sent Respondent a second termination letter and requested a refund. Thereafter, on October
10, 2012, she filed a pro se emergency motion to extend the stay of possession of her property. On October 11, 2012,
Fajutrao's motion was granted and the stay of possession on her property was extended to November 10, 2012. Fajutrao
testified they vacated the property on November 3, 2012 and moved to a rental house. (Ans. at pars. 143-44; Tr. 56, 178-80;
Adm. Exs. 31, 35, 36).
Respondent acknowledged receiving Fajutrao's second termination letter, but he assumed he was supposed to go forward
with the motion to vacate because he had filed it and could argue the merits better than Fajutrao. In addition, he felt bad and
wanted to correct a situation that he caused. Respondent testified he presented the motion to vacate on November 19, 2012
and it was denied. The motion to stay the eviction to and including December 19, 2012 was granted. (Ans. at pars. 142, 145;
Tr. 56, 297-98; Adm. Ex. 31).
On January 24, 2013, Fajutrao filed a breach of contract and malpractice action against Respondent to obtain a refund of the
money she paid to him. On July 11, 2014, the parties entered an agreed dismissal order, pursuant to their settlement,
whereby Respondent was to pay Fajutrao $7,500. Fajutrao testified she still has not received her file and did not receive any
refund until 2014. She feels that her experience with Respondent ruined her life and she is no longer as comfortable trusting
lawyers. (Ans. at par. 146; Tr. 57, 178-82; Adm. Ex. 38).
Respondent testified he does not feel good about his representation of Fajutrao, and knows he should have been more
mindful of her foreclosure case. He acknowledged he settled Fajutrao's malpractice action by agreeing to pay her $7,500 and
that as of the date the Inquiry Board voted to file a complaint against him, he had paid only $2,500 of that amount. As of the
date of the hearing, he believed he had paid Fajutrao the full $7,500 as stated in the agreement,
PAGE 54:
but acknowledged he still owes her approximately $1,000 to $1,500 pursuant to a verbal amendment to the agreement
whereby he agreed to pay fees and costs associated with her representation by an attorney. Those fees accrued on top of the
amount in the initial settlement agreement. (Ans. at par. 147; Tr. 55-57, 299-301; Adm. Ex. 39).
1. Rule 1.3 - failing to act with reasonable diligence and promptness
The Administrator charged Respondent with violating Rule 1.3 by "conduct including not attending the return date and other
motion dates, not timely filing an appearance or answer for Fajutrao, and not filing responses to the motions to default and to
confirm sale that had been filed against Fajutrao."
We find Respondent violated Rule 1.3 as charged. The evidence, as well as Respondent's own admissions, show that he
failed to take each of the actions listed. His failure to attend the April 4, 2012 court date during which an order of default
and judgment of foreclosure was entered, and his failure to file any motion to vacate the judgment until after his client sent a
termination letter, was egregious and left his client with little choice other than taking matters into her own hands and
appearing in court pro se. Respondent's explanation that he had changed litigation support companies and was not aware of
the events in the foreclosure case is unpersuasive since Fajutrao was sending him information regarding the court dates and
rulings.
2. Rule 1.4(a)(4) - failing to comply with reasonable requests for information
The Administrator charged Respondent with failing to comply with reasonable requests for information by conduct
including "not responding to Fajutrao's telephone calls, emails or mailed copies of pleadings."
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25 of 39 3/23/18, 7:31 PM
We find Respondent violated Rule 1.4(a)(4) by engaging in the acts listed. Fajutrao was a credible witness who testified to
her failed attempts to communicate with Respondent. Respondent, for his part, admitted receiving messages and mailings
from Fajutrao and not responding.
3. Rule 1.4(a)(3) - failing to keep a client reasonably informed of the status of a matter
The Administrator charged Respondent with failing to keep a client reasonably informed of the status of a matter by conduct
including "not responding to Fajutrao's telephone calls, emails, mailed copies of pleadings, fax or letter of termination."
We find Respondent violated Rule 1.4(a)(3). Fajutrao testified to her attempts to obtain information from Respondent
regarding her case, and Respondent admitted receiving her communications and failing to respond. We also saw no evidence
that he responded to or complied with her second letter of termination, and instead pursued a motion to vacate a judgment of
default that had been entered against her.
4. Rule 1.16(a)(3) - failing to withdraw from representation after being discharged
The Administrator charged Respondent with violating Rule 1.16(a)(3) by conduct including "not advising the court that
Fajutrao terminated Respondent's representation, as well as appearing and presenting his motion to vacate the April 4, 2012
default judgment and the motion to stay the eviction from Fajutrao's property."
We find this charge was proved. Fajutrao sent Respondent a termination letter on September 24, 2012, which Respondent
admitted receiving. Rule 1.16(a)(3) requires an attorney who has been discharged to withdraw from representation. Instead
of filing a motion to withdraw from Fajutrao's case and advising the court of his termination, he went forward with a motion
he had filed on her behalf even though he had no authorization to do so.
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5. Rule 1.16(c) - failing to notify or obtain permission from a tribunal when terminating a representation
The Administrator charged Respondent with violating Rule 1.16(c) by conduct including "not advising the court that
Fajutrao terminated Respondent's representation, as well as appearing and presenting his motion to vacate the April 4, 2012
default judgment and the motion to stay the eviction from Fajutrao's property."
Rule 1.16(c) requires a lawyer to comply with applicable law requiring notice to or permission of a tribunal when
terminating a representation. Supreme Court Rule 13 provides that an attorney may not withdraw from a matter without
leave of court and notice to parties of record. Respondent, upon being terminated by Fajutrao, did not advise the court of his
discharge or seek leave to withdraw from her case. Instead, he appeared in court and pursued a motion on her behalf. We
find Respondent's conduct violated Rule 1.16(c).
6. Rule 1.16(d) - failing to refund unearned fee
The Administrator charged Respondent with violating Rule 1.16(d) by conduct including "not refunding the remaining
$5,000 to Fajutrao pursuant to their settlement in the civil litigation matter."
We find a violation of Rule 1.16(d) was not proved by clear and convincing evidence. After Fajutrao brought a malpractice
action against Respondent, the matter was settled by Respondent's agreement to pay her $7,500. At the time the disciplinary
complaint was voted by the Inquiry Board, he had paid only $2,500.
Respondent testified at hearing that he has now paid the entire $7,500 owed to Fajutrao, and we heard no evidence to
contradict that testimony. While he acknowledged he still owes her approximately $1,000 or $1,500 pursuant to an oral
amendment to the agreement by which he
PAGE 57:
agreed to pay her attorney fees and costs, we do not view that amount as part of the Administrator's charge against him.
26 of 39 3/23/18, 7:31 PM
The Administrator charged Respondent with violating Rule 3.1 by conduct including "filing a motion to vacate the default
after Fajutrao's house had already been sold."
We find this charge was proved, as we saw no purpose in Respondent's going forward in November 2012 with a motion to
vacate the default judgment entered against Fajutrao in April 2012. By the time he brought that motion, Fajutrao's home had
been sold, the sale had been confirmed, a date had been set for her vacating the premises, and Respondent's services had
been terminated. When he appeared in court on November 19, 2012, the court denied the motion to vacate the default
judgment. Although the court extended Fajutrao's time of possession, the extension was meaningless since, according to
Fajutrao's testimony, she had already vacated the premises by that point.
The Administrator charged Respondent with violating Rule 3.2 by conduct including "knowingly filing an appearance and
motions to defend Fajutrao's property almost a year after Fajutrao hired Respondent to represent her."
We find this charge was proved. Fajutrao hired Respondent to represent her in November 2011 in connection with a
foreclosure action filed against her. Respondent took no action in the matter for nearly one year. As previously detailed, he
failed to file a timely appearance, failed to respond to motions for default and judgment of foreclosure filed against Fajutrao
in March 2012 - thereby allowing a judgment to be entered against her and her home to
PAGE 58:
be sold - and failed to respond to the motion to confirm sale. We find that his actions were dilatory and against his client's
interests.
The Administrator charged Respondent with violating Rule 8.4(c) by conduct including "making a false statement to
Fajutrao about court dates."
We find Respondent violated Rule 8.4(c) as charged. In September 2012 Fajutrao was presented with Respondent's
appearance and a motion to vacate the default. The date for presentment of the motion, as indicated on her copy, was
October 19, 2012. Respondent acknowledged that date was incorrect, as he was not able to obtain an October date for the
motion. He further acknowledged he advised Fajutrao of the incorrect date.
When Respondent made the statement regarding the court date, he had already received a termination letter from Fajutrao
and knew his continued employment was on the line. Moreover, he was well aware of the drastic consequences that had
resulted from his lack of attention to Fajutrao's case. We find that Respondent had a strong motive to deceive Fajutrao into
believing the motion to vacate would be heard sooner than it actually was scheduled to be heard, and therefore we conclude
his representation was dishonest.
V. In Count V, Respondent is charged with failing to act with reasonable diligence (Rule 1.3); failing to comply with
applicable law when terminating a representation (Rule 1.16(c)); failing to protect his client's interests upon
termination of representation (Rule 1.16(d)); bringing a frivolous proceeding or asserting a frivolous issue
(Rule 3.1); failing to make reasonable efforts to expedite litigation (Rule 3.2); knowingly making a false
statement to a tribunal (Rule 3.3(a)(1)); using means that have no substantial purpose other than to embarrass,
delay or burden a third person (Rule 4.4(a)); and engaging in dishonest conduct (Rule 8.4(c)).
A. Summary
The Administrator charged Respondent with violating eight rules in his representation of Diacovonne Flowers in connection
with loan modification applications and foreclosure litigation.
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We find Respondent failed to act with reasonable diligence, failed to comply with applicable law when terminating a
representation, failed to protect Flowers' interests upon termination of representation, filed frivolous motions, failed to make
reasonable efforts to expedite litigation, knowingly made a false statement to a tribunal, and engaged in dishonest conduct.
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Although we found Respondent engaged in misconduct in violation of the rules, we did not find that every instance of
alleged misconduct was proved.
The charge of using means that have no substantial purpose other than to embarrass, delay or burden a third person was not
proved.
Diacovonne Flowers testified she owns several rental properties. On July 25, 2011, Aurora Loan Servicing ("Aurora") filed a
complaint for foreclosure regarding her property in Chicago, and on September 19, 2011, U.S. Bank filed a complaint for
foreclosure regarding her property in Calumet Park. In the fall of 2011, Flowers was looking for an attorney to defend her in
the foreclosure actions and to seek loan modifications. Her own attempts to obtain loan modifications had been denied. (Ans.
at par. 149, 150; Tr. 189-93, 198).
When Flowers spoke to Respondent, he seemed professional and trustworthy. In October 2011, she hired him to represent
her in both of the foreclosure matters, as well as submit loan modification applications on her behalf, and agreed to pay him
$950 for the first month and $495 each month thereafter. She testified she filled out applications and documents sent to her
by Respondent throughout the course of her cases, and each time returned the completed documents to him. Her goal was to
keep her properties. (Ans. at par. 151; Tr. 57-58, 189-92).
Respondent testified he communicated with Flowers regarding her loan modifications, the foreclosure process and her cases,
and specifically they communicated during the period of May through November 2012. He pointed out that his pursuit of
loan modifications was affected
PAGE 60:
by the fact both of Flowers' properties were rental properties, since the majority of programs only provided relief for owner-
occupied properties. (Tr. 302, 306-308).
The Chicago Property
Between October 4 and November 4, 2011 Respondent filed an appearance, answer and affirmative defense in the
foreclosure litigation involving Flowers' Chicago property. In the affirmative defense, Respondent alleged that Aurora did
not have standing to bring a claim against Flowers because it had no interest in Flowers' loans or her property. On February
28, 2012, the court granted Aurora's motion to strike Respondent's answer and affirmative defense, and granted Respondent
twenty-eight days to file a responsive pleading. At no time thereafter did Respondent file another answer or any affirmative
defense. (Ans. at pars. 152, 153; Tr. 58-60; Adm. Ex. 45).
Flowers testified she took it upon herself to keep track of court dates through the Cook County clerk's website because
Respondent did not respond to her phone calls and rarely responded to her emails. She went to court twice and Respondent
was not present either time, although someone from his office did attend the second court date. (Tr. 194-96).
Respondent recalled a court date in February 2012 that was rescheduled because he had not delivered a courtesy copy of a
motion to the judge. He testified Flowers interpreted his non-appearance as a failure on his part, when actually the motion
had to be re-noticed. He recalled explaining to Flowers that the motion was taken off the call and there would be another
hearing date. The court file does not reflect any motion scheduled by Respondent and re-noticed during that time period. (Tr.
313-14; Adm. Ex. 45).
On March 30, 2012 Aurora filed a motion for summary judgment and judgment of foreclosure, to which Respondent did not
respond. The court granted the summary judgment
PAGE 61:
motion on April 26, 2012. Although Respondent received the court order, he did not file a motion to vacate it. (Ans. at par.
157; Tr. 60-61).
Flowers' Chicago property was sold at a public auction on August 14, 2012. She testified Respondent did not send her any
documents regarding the foreclosure case, or proof of anything he claimed to have filed, and she learned of the sale of her
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property online rather than from Respondent. When asked how she felt when she learned of the sale, she testified she was
very upset because she felt Respondent put forth no effort in her case and further, she had contacted the mortgage company
and learned they had not received any modification documents. (Tr. 61, 196-97, 203-204; Adm. Ex. 45).
On September 10, 2012, Aurora's counsel filed and served upon Respondent a motion to approve the judicial sale of
Flowers' property and scheduled the motion for hearing on October 29, 2012. Respondent did not file a response, the motion
was granted, and he received a copy of the order. He did not seek reconsideration of the order. (Ans. at pars. 159-60).
Respondent testified he advised Flowers if a sale of her property occurred while her loan modification application was being
considered, then the sale was held in error. He identified two separate applications signed by Flowers, one dated July 15,
2012 and the other dated October 11, 2012. He testified he provided assistance with those applications, and communicated
with Flowers throughout the time period of the applications. When asked to review the October application, he initially
thought it may have been the first one that was completed and sent to the bank, due to his difficulty in obtaining the requisite
documents from Flowers. He subsequently testified there were earlier applications. (Tr. 303-306; Adm. Ex. 42; Resp. Ex.
24).
On November 6, 2012, Respondent filed a motion to set aside the sale of Flowers' property. The motion stated, in part, that
more than seven days prior to the August 14, 2012 sale
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of Flowers' property, Flowers had applied, and was being considered, for a loan modification. Respondent testified that
statement was accurate and true. He noted, and the court file reflects, that Flowers' July 15, 2012 loan modification
application was attached to the filing. Respondent scheduled the motion to be heard on January 14, 2013. (Ans. at par. 162;
Tr. 61, 304-306; Adm. Ex. 45; Resp. Ex. 25).
A FAX cover sheet dated November 9, 2012 reflects that, on that date, a paralegal in Respondent's law office transmitted
Flowers' October 11, 2012 loan modification application package, totaling 80 pages, to Nationstar.2 The documents
accompanying the application were dated October 11, 2012. (Ans. at par. 165; Adm. Ex. 42; Resp. Ex. 24).
On December 11, 2012 Flowers sent Respondent a letter terminating his representation as her legal counsel for the Chicago
property. Flowers testified she no longer trusted Respondent and wanted to hire someone else. Although Respondent talked
her out of her decision, she subsequently terminated his representation with a second letter and contacted an organization
that assisted her with obtaining a loan modification and retaining her property. (Tr. 197-200, 308, 343; Adm. Exs. 43, 45).
Respondent acknowledged he was discharged by Flowers but, after speaking to her, he understood she was comfortable
having him continue with his representation because the loan modification was pending. He testified Flowers then reversed
her decision and terminated him a final time. Respondent admitted he did not notify the court of his termination. (Tr. 61,
312-13; Adm. Ex. 43; Resp. Ex. 27).
With respect to the motion to set aside sale which Respondent had scheduled for January 14, 2013, a court order entered that
day reflects the motion was denied due to movant's failure to appear. Respondent testified the attorney he sent to cover the
hearing was informed by the judge
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that the motion would not be heard because the plaintiff's law firm only appeared on specific days. Flowers recalled after
Respondent missed a January court date, she sent him emails to let him know she was very upset. She acknowledged that
Respondent responded with an explanation as to why he had been detained. (Tr. 62, 205, 308-10; Adm. Ex. 45).
On January 23, 2013, Flowers' new counsel filed his appearance and motion to substitute as Flowers' attorney. Attached to
the motion was a letter from Flowers to Respondent, dated January 14, 2013, terminating his services. Flowers' new counsel
also re-noticed Respondent's motion to set aside the sale and scheduled it for hearing on April 11, 2013. Flowers testified she
still owns the Chicago property and rents it out. (Tr. 202; Adm. Ex. 45).
The Calumet Park Property
29 of 39 3/23/18, 7:31 PM
Regarding the Calumet Park property, Respondent filed an appearance on December 1, 2011, but did not file an answer,
affirmative defense, or other responsive pleading with his appearance. On February 17, 2012, U.S. Bank filed and served on
Respondent a motion for default and motion for judgment of foreclosure and sale. Shortly thereafter, Respondent received
notice of the motion, but did not file a response. The motion was noticed for hearing on March 14, 2012. (Ans. at 170; Tr.
63-64; Adm. Ex. 44).
On March 14, 2012, the court entered an order of default and a judgment for foreclosure and sale of Flowers' Calumet Park
property. Shortly thereafter, Respondent received notice of the court order but did not request that it be vacated or
reconsidered. (Ans. at par. 172; Tr. 63; Adm. Ex. 44).
Respondent testified he was in communication with Flowers in May 2012 concerning her loan modification application for
the Calumet Park property. He noted the information for that application was largely interchangeable with the application for
the Chicago property. (Tr. 307).
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Flowers' Calumet Park property was sold at public auction on June 18, 2012. On June 22, 2012, U.S. Bank filed and served
upon Respondent a motion to approve the sale of the property and scheduled the motion for hearing on July 18, 2012.
Shortly thereafter, Respondent received notice of the motion but did not file a response. On July 18, 2012, Respondent was
not present when the court entered an order approving the sale of Flowers' Calumet Park property and granting possession in
thirty days. Respondent received notice of the court order, but did not file a motion for reconsideration. (Ans. at pars.
174-75; Tr. 63; Adm. Ex. 44).
On October 11, 2012, Respondent filed another appearance on behalf of Flowers, as well as a motion to vacate the order
approving the sale of the Calumet Park property. He scheduled the motion for hearing on December 6, 2012, which was nine
months after the judgment of foreclosure had been entered, and almost six months after the property had been sold.
Respondent admitted, in his answer to the Complaint, that he falsely stated in the motion that prior to the sale of her property
Flowers had applied for a loan modification and, as of the date of the motion to vacate, had not received a letter denying the
application. In subsequent paragraphs of his answer, however, he denied his statement was false or that he knowingly made
any false statement. (Ans. at pars. 177-79; Tr. 64; Adm. Ex. 44).
On November 9, 2012, Respondent faxed Flowers' loan modification application to Flowers' mortgage company, Nationstar.
(Ans. at par. 180).
On December 6, 2013, the court denied, without prejudice, Flowers' motion to vacate, granted her leave to file an amended
motion, and continued the matter to January 3, 2013. Respondent admitted the motion was denied because he had not
attached a copy of the loan modification application. He testified his standard practice was to attach the applications. (Ans. at
par. 181; Tr. 311-12, 343; Adm. Ex. 44).
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On December 11, 2012, Flowers sent Respondent a letter terminating his services and asking for the return of her file.
Shortly thereafter Respondent received her letter, but did not advise the court of his termination or seek leave to withdraw as
Flowers' counsel based on his termination. Flowers recalled Respondent advising her she had another court date regarding
her Calumet Park property and he could re-file the motion. (Ans. at par. 182; Tr. 64, 200).
On December 19, 2012, Respondent filed an amended motion to vacate the order approving the sale in which he stated that a
sale should not have occurred because a loan modification was pending at the time of the sale date. He testified, and the
court filing reflects, that Flowers' loan modification application dated May 24, 2012 was attached to the amended motion.
(Tr. 63, 306-307, 313; Adm. Ex. 44; Resp. Ex. 26).
Respondent admitted he appeared in court on January 3, 2013, and did not produce the loan modification documents to the
court. At that time an order was entered granting him leave to withdraw the amended motion. The court file does not reflect
any further court dates, filings or orders. (Ans. at par. 183; Tr. 64, 344; Adm. Ex. 44).
Flowers testified she arrived in court after the hearing was concluded and spoke to Respondent as he was leaving. She
recalled Respondent saying the case had been continued, and providing a new date about two weeks out. By the next court
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date, she had terminated Respondent's representation and therefore appeared in court herself. At that time she was told her
case had been dismissed at the prior court hearing and her property had been sold. Respondent was not present in court on
January 17, 2013. (Ans. at pars. 184, 187; Tr. 198-99).
Further Evidence Regarding Respondent's Representation and Termination
Flowers testified during the time she was represented by Respondent, she had infrequent communications with him, did not
receive updates about her cases, and was not aware that any
PAGE 66:
loan modifications were submitted on her behalf. She had no reason not to cooperate with Respondent, and testified she paid
him about $10,000. When she sent Respondent a termination letter on December 11, 2012, she requested that he return her
files by sending them to an address she provided. She denied receiving any of her records. As a result of her experience with
Respondent, Flowers does not trust lawyers and tries to avoid them. (Tr. 200-205; Adm. Ex. 43).
Flowers acknowledged Respondent filed motions to set aside the judicial sales of her two properties, and after one of the
court dates he missed, he sent an email explaining his absence. During Respondent's representation, she received rental
income from her two properties, although the rent from the Chicago property was sporadic. (Tr. 203-205).
Respondent testified he returned Flowers' file materials by regular mail shortly after she requested them, and noted that her
new attorney in the Chicago property litigation re-noticed the motion he had filed. Respondent acknowledged that despite
being terminated in December 2012, he sent Flowers a monthly invoice for $495 in January 2013. He testified the invoice
was sent in error. (Ans. at pars. 168, 188; Tr. 61-62, 314-15).
We begin our analysis of this count by commenting on the confusing nature of some of the allegations and evidence. At
times it was difficult to link information to a specific property and, to add to the confusion, not all of the testimony was
connected to a precise date. While the ambiguities generally could be clarified by reference to the court files or the context
of the complaint or questioning, we do not rely on any evidence that is imprecise, as our findings have to rest upon evidence
that is clear and convincing.
The Administrator charged Respondent with violating Rule 1.3 by conduct including "submitting Flowers' loan modification
application over a year after he began representing her,
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filing an affirmative defense without elaboration or support regarding the Chicago property, not filing a response to the
summary judgment motion and motion to approve the judicial sale of the Chicago property, not filing an answer, affirmative
defenses, response to the summary judgment motion3 or response to the motion to approve the judicial sale of the Calumet
Park property." We find this charge was proved by Respondent's failure to file any response to the motions in either of the
foreclosure actions. Respondent was aware of the filings, as he admitted receiving them. In both cases, judgment was
entered against Flowers and the sales were approved. We find he further violated Rule 1.3 by his failure to file an answer or
affirmative defenses in the Calumet Park case.
We find that the other asserted misconduct was not proved. Regarding the submission of the loan application, the
Administrator did not specify whether the charge pertained to the Chicago property or the Calumet Park property, although
the Complaint included factual allegations as to both. As to each of the properties, we understand that some time was
required to collect information and complete the applications. Both Flowers and Respondent testified they were in
communication regarding the applications, although they disagreed on Flowers' responsiveness to Respondent's requests for
documents. As to the Chicago property, we were presented with two separate applications signed by Flowers, one dated July
15, 2012 and the other dated October 11, 2012, and as to the Calumet Park property, we saw a signed application dated May
24, 2012. Respondent testified he assisted with all of those applications. Given the ongoing nature of the work and
communications regarding the applications, we do not view this as a situation where an attorney failed to give attention to a
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matter. We find, therefore, that Respondent's filing of the applications in November 2012 was not a violation of Rule 1.3.
PAGE 68:
Regarding the charge that Respondent filed an affirmative defense "without elaboration or support," the Administrator did
not prove the defense was "without elaboration or support," as the court order striking the affirmative defense and granting
Flowers leave to re-plead stated no specific reason for its action. At any rate, as stated in prior sections, we do not view a
defect in the substance of a pleading, especially without detailed explanation of the defect, as a failure of diligence.
2. Rule 1.16(c) - failing to notify or obtain permission of tribunal when terminating representation
The Administrator charged Respondent with violating Rule 1.16(c) by conduct including "not advising Judge Senechalle and
the court that Flowers terminated Respondent's representation."
We find this charge was proved. The Administrator alleged as to each of the foreclosure actions that Respondent was
terminated on December 11, 2012, but continued participating in the cases without disclosing his termination to the court.
Respondent did not dispute receiving Flowers' December 11, 2012 termination letter but claimed, and Flowers
acknowledged, that he persuaded her to allow him to continue with his representation. The continued representation was
short-lived, however, as Flowers again terminated Respondent.
Respondent acknowledged he never advised the court of his termination. Based on his admissions and the lack of any
withdrawal motion in the court files, we find he violated Rule 1.16(c).
3. Rule 1.16(d) - failing to protect client's interest upon termination
The Administrator charged Respondent with violating Rule 1.16(d) by conduct including "not returning Flowers' client file."
PAGE 69:
We find this charge was proved. We heard conflicting testimony from Respondent and Flowers as to the return of her file,
with Respondent testifying he returned Flowers' file to her by regular mail (although no cover letter supported that mailing),
and Flowers denying she ever received any of her records. As support for his position, Respondent pointed to the fact
Flowers' new counsel re-filed Respondent's motion to set aside the sale of the Chicago property. Since Flowers' counsel
easily could have obtained that motion from the court file, we do not view the re-filing of the motion as evidence that
Respondent returned Flowers' file to her. We found Flowers to be the more credible witness as to this issue, and therefore
find a violation of Rule 1.16(d) was proved.
The Administrator charged Respondent with violating Rule 3.1 by conduct including "filing a motion to set aside the judicial
sale of both the Chicago and Calumet Park properties, and alleging that he submitted a loan modification application for
both of Flowers' properties, when he had not done so."
We find Respondent violated Rule 3.1 by filing motions to set aside the sale of Flowers' two properties, which motions were
based on his claim that he had submitted loan modification applications on her behalf. The evidence showed that, as to the
Chicago property, the motion to set aside the sale was filed on November 6, 2012 and as to the Calumet Park property, the
motion was filed on October 11, 2012. We saw evidence, through a transmission letter from Respondent's law office and his
own admissions, that loan modification applications were submitted to Flowers' lender on November 9, 2012. No proof,
other than Respondent's own testimony, supported his claim that he submitted the applications any earlier than that date. As
to Respondent's testimony, his recollection was indefinite regarding which of Flowers' two
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applications for the Chicago property was submitted first, and he did not provide a specific date when the applications were
submitted. Likewise the motions he filed with the court did not specify the date the applications were submitted, nor did he
attach any proof of the submissions with the motions. We find that Respondent's claim had no factual basis, and therefore
was frivolous.
32 of 39 3/23/18, 7:31 PM
The Administrator charged Respondent with violating Rule 3.2 by conduct including "submitting Flowers loan modification
application over a year after he began representing her, filing affirmative defenses without elaboration or support regarding
the Chicago property, not filing a response to the summary judgment motion and motion to approve the judicial sale of the
Chicago property, not filing an answer, affirmative defenses, response to the summary judgment motion or response to the
motion to approve the judicial sale of the Calumet Park property."
Just as we previously found that Respondent failed to act with reasonable diligence by failing to file a response to motions in
both foreclosure actions, and by failing to file an answer and affirmative defense in the action regarding the Calumet
property, we now find that those same omissions violated Rule 3.2, since the failings occurred in the context of ongoing
litigation.
We find that the other asserted conduct did not violate Rule 3.2. The submission and review of the loan modification
applications did not involve a court proceeding and even if it did, we have already found that Respondent was not dilatory
with respect to submitting the applications. As for the answer and affirmative defense regarding the Chicago property, that
pleading was filed within a month of Respondent being retained by Flowers. The fact the filing may have been deficient in
some other way, which we do not find was proved, does not establish that Respondent failed to expedite the proceeding.
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6. Rule 3.3(a)(1) - knowingly making a false statement of fact or law to a tribunal
The Administrator charged Respondent with violating Rule 3.3(a)(1) by conduct including "stating in his motion to set aside
the judicial sale that he had filed Flowers' loan modification application in July 2012, when he did not file it until November
2012."
We find this charge, which pertains to Respondent's November 6, 2012 motion to set aside the sale of the Chicago property,
was proved. Although the motion stated that Flowers' loan modification application had been submitted prior to the August
14, 2012 sale of her property and included, as an exhibit, her application dated July 2012, we were not presented with any
evidence, other than Respondent's own claim, that he actually submitted Flowers' July application to the loan servicer prior
to the sale of her property. We stated previously that his testimony on this issue was not clear-cut and moreover, we were not
presented with any type of cover letter or facsimile transmission to the lender, as we saw with the November submission.
Further, if the application had in fact been submitted in July 2012, Respondent did not explain why he submitted a second
application in November 2012. Most significantly, Flowers had not been advised of any submission of her application prior
to the sale of her property and when she made direct inquiry to the bank, she was told no application had been submitted. We
conclude Respondent's statement in his motion was false and, as he was the person responsible for tendering the submission
to the lender and did not do so, he knew the statement was false.
person
The Administrator charged Respondent with violating Rule 4.4(a) by conduct including "submitting Flowers' loan
modification application over a year after he began representing her, filing an affirmative defense without elaboration or
support regarding the Chicago property, not filing a response to the summary judgment motion and motion to approve the
judicial sale of the
PAGE 72:
Chicago property, not filing an answer, affirmative defenses, response to the summary judgment motion or response to the
motion to approve the judicial sale of the Calumet Park property."
We find this charge was not proved. With respect to Respondent's failure to file responses to motions in the foreclosure
actions, or an answer and affirmative defenses in the case involving the Calumet Park property, we have previously found
that he failed to represent his client diligently. The Administrator did not prove, however, that his lack of diligence was
accompanied by any ulterior motive or purpose. Rather than embarrassing, burdening or delaying the lenders, Respondent's
omissions benefitted them by guaranteeing rulings unfavorable to his client and moving the case toward the sale of her
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property.
Likewise, the Administrator did not prove that Respondent's November 2011 filing of an affirmative defense without
"elaboration or support," or his November 2012 filing of a loan modification application on behalf of Flowers,' was done to
embarrass, burden or delay a third person. Again, the effect of filing an affirmative defense that was deficient in any way or
not submitting a loan modification application at the earliest possible moment was a disadvantage to his own client, rather
than to the lender.
The Administrator charged Respondent with violating Rule 8.4(c) by conduct including "misrepresenting to Flowers the
next court date regarding the Calumet Park property, and stating in his motion to set aside the judicial sale that he had filed
Flowers' loan modification application in July 2012, when he did not file it until November 2012."
We find Respondent violated Rule 8.4(c) as charged. We previously found that Respondent knowingly made a false
statement to a tribunal by representing in a motion that Flowers' application for a loan modification had been filed in July
2012. For the same reasons
PAGE 73:
we found a violation of Rule 3.3(a)(1), we find he engaged in dishonest conduct in violation of Rule 8.4(c).
We also find that he made a false statement to Flowers in January 2013 regarding her next court date in the action involving
the Calumet Park property. On January 3, 2013 Respondent appeared in court on Flowers' amended motion to vacate the sale
of her property and at that time was given leave to withdraw the amended motion. The order entered that day reflects no
other action or future dates.
Flowers testified she arrived in court after the hearing concluded and was advised by Respondent that the next hearing date
was in two weeks. On January 14, 2013 she terminated Respondent's representation. When she subsequently appeared in
court, she was told her case had been dismissed on January 3, 2013 and no further dates had been set.
We viewed Flowers' account as credible, as she would have no reason to return to court unless she had been advised of a
future date. Moreover Respondent, who had already received one termination letter from Flowers in December, had a motive
to allow her to believe her motion was pending. For these reasons, we find a violation of Rule 8.4(c).
ADDITIONAL EVIDENCE IN MITIGATION
Respondent has performed pro bono work, including defending a young individual in a securities fraud matter over the
course of two years and handling sporadic foreclosure matters for the Neighborhood Community Foundation. (Tr. 320-21).
Prior Discipline
Respondent has not been previously disciplined by the Illinois Supreme Court or by any Board of the Commission.
PAGE 74:
RECOMMENDATION
A. Summary
The Hearing panel is recommending that Respondent be suspended for one year, with the last six months stayed by a one
year period of probation with conditions.
B. Analysis
Having found that Respondent engaged in misconduct, we must now determine the appropriate discipline. In so doing, we
are mindful that the purpose of these proceedings is not to punish, but rather to safeguard the public, maintain the integrity
of the profession and protect the administration of justice from reproach. Edmonds, 2014 IL 117696, par. 90. Attorney
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discipline also has a deterrent value in that it impresses upon others the repercussions of errors such as those committed by
Respondent in the present case. In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906, 912 (1994). While we strive for consistency
and predictability in the imposition of sanctions, we also recognize that each case is unique and must be decided on its own
facts. In re Mulroe, 2011 IL 111378, par. 25.
In arriving at the appropriate discipline, we consider those circumstances which may mitigate and/or aggravate the
misconduct. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). In mitigation, Respondent cooperated in these
proceedings and has not been previously disciplined by the Supreme Court or any board of the Commission. In addition, he
testified to having handled some pro bono matters, and acknowledged engaging in improper conduct regarding the Fajutrao
matter. We also consider the fact that he was relatively inexperienced, at least with respect to loan modification matters, at
the time he undertook representation of the clients in this case.
PAGE 75:
In aggravation, Respondent did not acknowledge his misconduct, other than the Fajutrao matter, and did not express remorse
for his actions. See In re Lewis, 138 Ill. 2d 310, 347-48, 562 N.E.2d 198 (1990). Further, he did not engage in an isolated
instance of misconduct; rather, his actions reflect a pattern of misdeeds involving multiple client matters. See In re Smith,
168 Ill. 2d 269, 295, 659 N.E.2d 896 (1995).
We also consider the harm or risk of harm caused by Respondent's conduct. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d
102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack
of care"). The evidence demonstrates Respondent's clients were vulnerable in that they were experiencing financial
difficulties and in the process of losing their homes at the time they retained his services. His lack of diligence and
communication compounded the emotional distress they were already experiencing. Further, several of the clients had to
seek out and retain new counsel to resolve their cases after having discharged Respondent." See In re Demuth, 126 Ill. 2d 1,
533 N.E.2d 867 (1988) (client is harmed when he has to go to the "expense and inconvenience" of hiring another attorney).
The legal profession was also harmed in that Respondent's actions caused an erosion of trust in lawyers.
With respect to an appropriate sanction, the Administrator urged us to recommend a one to two year suspension, with
restitution to Wolowiec and Fajutrao. Respondent, having disputed the majority of the charges, argued that a reprimand
should be imposed.
The primary misconduct in this case was Respondent's failure to act with diligence in representing his clients. Other
misconduct included his dishonesty in presenting information to his clients or a tribunal, his lack of communication with
several clients, his improper action after his representation was terminated, and his assertion of frivolous proceedings or
motions. In
PAGE 76:
formulating a sanction, we note that many of the charges asserted in this case were overlapping or duplicative. Failure to act
with reasonable diligence often encompasses a failure to expedite litigation; failure to keep a client informed and failure to
comply with requests for information are both forms of communication problems; and asserting false statements to a tribunal
or offering false evidence almost always coincides with a charge of dishonesty. When sanctioning an attorney, the Court has
stated "we do not count the number of ethical rules which [the attorney] violated concurrently by the same conduct and
increase the severity of the sanction the higher that number is. Instead, we analyze and pass judgment upon the unethical
nature of [the] conduct as a whole." In re Gerard, 132 Ill. 2d 507, 532, 548 N.E.2d 1051 (1989).
Cases involving neglect and misrepresentations have resulted in a range of sanctions. See In re Forst, 2012PR00097, M.R.
26462 (Mar. 14, 2014) (Hearing Bd. at 34-36) (noting the difficulty in reconciling cases in this area). The Administrator
directed our attention to several cases in which significant sanctions were imposed, but each of those cases involved more
serious aggravating factors than were present here, such as offensive conduct during the hearings and/or prior discipline. For
example, In re Samuels, 09 CH 38, M.R. 24427 (Mar. 21, 2011) the attorney was suspended for one year until further order
of the Court with a condition that he return unearned fees, for engaging in one instance of neglect, making
misrepresentations to conceal his neglect, failing to communicate with his client and failing to return unearned fees to two
clients. Aggravating factors included the attorney's lack of cooperation, his filing of frivolous pre-hearing motions, his
obstructionist attitude during the hearing process, a lack of understanding of his misconduct, and a prior suspension. In In re
O'Brien, 2015PR00023, M.R. 38493 (Mar. 20, 2017), the attorney was suspended for two years until further order of the
35 of 39 3/23/18, 7:31 PM
Court, with a condition of restitution to clients and lienholders, for neglecting six client matters and
PAGE 77:
failing to communicate with those clients, failing to promptly deliver client funds and failing to return an unearned fee. In
aggravation, the attorney failed to cooperate during the disciplinary process, and had been previously disciplined. In In re
Stark, 2013PR00027, M.R. 27037 (Jan. 16, 2015), the attorney was suspended for one year until further order of the Court
for neglecting two client matters and engaging in dishonesty with respect to one client. In aggravation, the attorney gave
false testimony at his hearing, was previously disciplined on two occasions, and both of his clients lost the right to pursue
their actions.
Respondent directed our attention to several cases at the milder end of the discipline spectrum. In those cases, which resulted
in the attorneys being reprimanded, no dishonest or deceptive misconduct occurred and two of the cases involved only a
single client matter. See In re Marshall, 2016PR00026 (Jan. 31, 2017) (neglect and failure to return unearned fee in one
client matter; in aggravation, the attorney was previously disciplined); In re Davis, 04CH 46 (Nov. 8, 2004) (neglect of three
client matters, failing to keep client reasonably informed, failing to refund unearned fee; in mitigation the attorney was
remorseful and his personal problems contributed to his negligence); In re Wimberly, 2010PR00027 (Mar. 29, 2012) (failure
to promptly refund unearned fees to one client).
Respondent's citation to In re Fish, 2013PR00065, M.R. 27987 (May 18, 2016) is somewhat informative since, like this
case, the misconduct occurred in the context of mortgage modification and foreclosure matters and, also like this case, it
involved multiple client matters and a variety of rule violations. The attorney was suspended for six months and until he
completed the ARDC professionalism seminar for two counts of failing to keep clients informed, one count of failing to act
with diligence, three counts of sharing legal fees with non-lawyers,
PAGE 78:
seven counts of failing to segregate client funds, and two counts of failing to refund unearned fees. No dishonesty was found
in that case.
We also look to the following cases which involved multiple instances of neglect and misrepresentations. In In re Samuels,
126 Ill. 2d 509, 535 N.E.2d 808 (1989). The attorney was suspended for one year for neglecting four client matters (causing
a six-year delay in one case) and his inaction resulted in some claims being time-barred. He also made misrepresentations to
his clients and failed to cooperate in his hearing. Forst, 2012PR00097, the attorney was suspended for four months for
neglecting four client matters; failing to communicate with each of the clients; making misrepresentations regarding the
status and progress of their cases, and engaging in conduct prejudicial to the administration of justice. With respect to one of
the clients, the attorney also failed to refund unearned fees. In mitigation, the attorney's family problems were a distraction
to his work and contributed to his neglect of cases. In re Werth, 2010PR00108, M.R. 24787 (Sept. 26, 2011) the attorney was
suspended for four months, on consent, for neglecting four client matters over a two year period, making misrepresentations
regarding work he purportedly performed on the cases, falsifying settlement checks which he then funded with his own
money, and submitting a false billing statement to one client. In In re Davis, 04 CH 11, M.R. 20296 (Sept. 26, 2005) the
attorney was suspended thirty days, on consent, for neglecting three client matters, failing to keep his clients informed and
respond to requests for information, failing to return files to one client, and misrepresenting the status of the cases. The
attorney owed restitution of $750 to one of the clients.
With respect to Respondent's assertion of frivolous pleadings or issues, we consider the following cases. In In re Bercos, 97
CH 97, M.R. 14713 (May 27, 1998) the attorney received a thirty day suspension for filing numerous frivolous pleadings
and advising his client to disregard
PAGE 79:
a ruling of a tribunal. In In re Dore, 07 CH 122, M.R. 24566 (Sept. 20, 2011) the attorney was suspended for five months for
asserting frivolous claims or positions in three matters, using means that had no purpose other than to embarrass, delay or
burden a third person in three matters, and for making false statements about the integrity of a judge. In In re Phelan, 07 CH
93, M.R. 22566 (Sept. 17, 2008) and In re Medansky, 94 CH 609, M.R.10528 (Nov. 30, 1994), the attorneys were censured
for advancing an unwarranted claim and making a false statement.
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Respondent in this case engaged in serious misconduct involving five clients. Having considered that misconduct, the
mitigating and aggravating circumstances, and the relevant case law, we conclude a suspension of moderate length is
warranted. We further note, however, that a considerable portion of Respondent's misconduct involved faulty practices
which we believe can be addressed by education and improvements to his office practices and tracking systems. To that end,
a suspension combined with a period of probation will allow him time to put systems in place to ensure that he does not
repeat the misconduct that led him here. Similar sanctions have been imposed in cases involving neglect, failure to
communicate, and misrepresentations. See In re O'Brien, 2014PR00024, M.R. 28081 (Sept. 22, 2016) (nine-month
suspension stayed after four months by twelve-month period of probation, for neglecting three client matters, failing to
communicate with the clients, making misrepresentation to one client, and failing to provide accounting to one client); In re
Cloh, 2014PR00109, M.R. 27574 (Sept. 21, 2015) (one-year suspension stayed after three months by eighteen month period
of probation, for neglect of four client matters, failing to keep each client informed, failing to explain matters to the clients,
and engaging in dishonesty with respect to two clients); In re Hopkins, 06 CH 77, M.R. 22557 (Sept. 17, 2008) (one-year
suspension stayed after six months by eighteen-month probation period for
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converting funds, neglecting three matters, failing to refund two unearned fees, failing to communicate with two clients, and
making misrepresentations to two clients).
Having considered the foregoing case law, we recommend Respondent Adam Samuel Tracy be suspended from the practice
of law for a period of one year, with the last six months stayed by a one-year period of probation subject to the conditions set
forth below. We decline to add a condition of restitution to our recommendation, as was suggested by the Administrator,
since we did not find any misconduct with respect to Respondent's fees. The following conditions are to be satisfied prior to
the termination of probation:
a. Respondent shall comply with the provisions of Article VII of the Illinois Supreme Court Rules on Admission
and Discipline of Attorneys and the Illinois Rules of Professional Conduct and shall timely cooperate with the
Administrator in providing information regarding any investigations relating to his conduct;
b. Respondent shall successfully complete the ARDC Professionalism Seminar prior to the end of his probation
period;
c. Respondent shall, during the first thirty (30) days of his suspension, enroll in a law office management
program acceptable to the Administrator and shall, upon enrollment, notify the Administrator, in writing, of
the name of the attorney with whom Respondent is assigned to work. Respondent shall successfully complete
the law office management program prior to the end of the probation term. Through Respondent's participation
in the law office management program, Respondent shall establish and utilize the following:
i. a system for maintaining records as required by Supreme Court Rule 769;
ii. a diary and docketing system in accordance with the requirements established by the law office
management program, including a mechanism by which approaching statutes of limitations and other
filing deadlines are noted;
iii. a system by which telephone messages are recorded and telephone calls are returned in a timely
manner;
iv. a system by which written requests by clients for the status of their legal matters are answered, either
orally or in writing, in a timely manner;
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v. a system whereby clients are apprised at the outset of representation of the basis upon which fees will
be calculated and costs paid; and
vi. for cases in which the fee is to be calculated on an hourly basis, a system by which clients are
provided with regular itemized billing statements provided at least quarterly, setting forth the services
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performed by respondent, the date upon which each service was performed, and the time spent by
Respondent on each service and the amount to be charged to the client;
d. Respondent shall authorize the attorney assigned to work with him in the law office management program to:
i. disclose to the Administrator on a quarterly basis, by way of signed reports, information pertaining to
the nature of Respondent's compliance with the law office management program and the above
described conditions;
ii. promptly report to the Administrator Respondent's failure to comply with any part of the above
described conditions; and
iii. respond to any inquiries by the Administrator regarding Respondent's compliance with the above
described conditions;
e. Respondent shall attend meetings as scheduled by the Commission probation officer. Respondent shall submit
quarterly written reports to the Commission probation officer concerning the status of his practice of law and
the nature and extent of his compliance with the conditions of probation;
f. Respondent shall notify the Administrator within fourteen (14) days of any change of address;
g. Respondent shall notify the Administrator within seven (7) days of any arrest or charge alleging his violation
of any criminal or quasi-criminal statute or ordinance;
h. At least thirty (30) days prior to the termination of the period of probation, respondent shall reimburse the
Client Protection Program Trust Fund for any Client Protection payments arising from his conduct;
i. Respondent shall reimburse the Commission for the costs of this proceeding as defined in Supreme Court Rule
773 and shall reimburse the Commission for any further costs incurred during the period of probation;
j. Probation shall be revoked if Respondent is found to have violated any of the terms of his probation. The
remaining six-month period of suspension shall commence from the date of the determination that any term of
probation has been violated; and
PAGE 82:
k. Probation shall terminate without further order of court provided that Respondent complies with the above
conditions.
Respectfully Submitted,
James B. Pritikin
Gregory E. Rogus
Joseph C. Vallez
CERTIFICATION
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois
and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the
Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on March
22, 2018.
Kenneth G. Jablonski, Clerk of the

Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois
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_______________________
1 In paragraphs 120(b) of Count III and 148(b) of Count IV, the Rule violation for failure to comply with reasonable requests
for information is asserted to be 1.4(a)(3) rather than 1.4(a)(4), and in paragraphs 120(c) and 148(c) the Rule charged for
failing to keep a client reasonably informed is stated to be 1.4(a)(4) rather than 1.4(a)(3). We regard the transposition of the
Rule 1.4(a) subparagraphs as nothing more than a clerical mix-up which did not cause any prejudice to Respondent. We will
consider the charges as they should have been presented.
2 The court file indicates that Nationstar was eventually substituted for Aurora as plaintiff in the foreclosure action, as
Flowers' mortgage had been assigned to it by Aurora. (Adm. Ex. 45).
3 Regarding the Calumet Park property, the Administrator alleged that Respondent failed to respond to a motion for
summary judgment filed by Aurora's counsel on February 17, 2012. As evidenced by the court file, no motion for summary
judgment was filed in the Calumet Park action, nor was Aurora even involved in that action; rather, a motion for default and
motion for judgment and foreclosure of sale was filed by U.S. Bank against Flowers on February 17, 2012. As with other
errors noted, we do not believe the Administrator's misnaming the plaintiff or reference to the motion as a summary
judgment motion rather than a default motion was prejudicial to Respondent, nor did he claim any prejudice. The point of
the allegation, which was clear, was Respondent's lack of response and the subsequent entry of judgment against his client.
39 of 39 3/23/18, 7:31 PM

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ARDC | Rules and Decisions https://www.iardc.org/rd_database/disc_decisions_detail_print.a...

Rules and Decisions

DECISION FROM DISCIPLINARY REPORTS AND DECISIONS SEARCH

Filed March 22, 2018

In re Adam Samuel Tracy

Commission No. 2017PR00014

Synopsis of Hearing Board Report and Recommendation

BEFORE THE HEARING BOARD

In the Matter of:

ADAM SAMUEL TRACY,

REPORT AND RECOMMENDATION OF THE HEARING BOARD

SUMMARY OF THE REPORT

FINDINGS AND CONCLUSIONS

Background and General Evidence

28-29, 226-27; Adm. Exs. 9, 10).

C. Analysis and Conclusions

1. Rule 1.3 - failing to act with reasonable diligence

3. Rule 3.2 - failing to make reasonable efforts to expedite litigation

4. Rule 3.3(a)(3) - knowingly offering false evidence

5. Rule 8.4(c) - dishonesty, fraud, deceit or misrepresentation

6. Rule 8.4(d) - conduct prejudicial to the administration of justice

home. (Ans. at par. 48; Tr. 36, 137, 238-40).

C. Analysis and Conclusions

1. Rule 1.3 - failing to act with reasonable diligence

4. Rule 3.3(a) - knowingly making a false statement to a tribunal

6. Rule 8.4(c) - dishonesty, fraud, deceit

April 4, 2012 Court Date

Answer and Affirmative Defenses

provided her with copies of his appearance and

March 22, 2013 Court Date

(Tr. 46, 49, 150-53; Adm. Ex. 28).

Termination and Offer of Refund

C. Analysis and conclusions

1. Rule 1.3 - failing to act with reasonable diligence

5. Rule 3.2 - failing to make reasonable efforts to expedite litigation

7. Rule 8.4(c) - dishonesty, fraud, deceit or misrepresentation

The charge of failing to return an unearned fee was not proved.

52-53, 290-92; Adm. Ex. 31; Resp. Ex. 20).

C. Analysis and conclusions

6. Rule 1.16(d) - failing to refund unearned fee

8. Rule 3.2 - failing to make reasonable efforts to expedite litigation

9. Rule 8.4(c) - dishonesty, fraud, deceit or misrepresentation

The Chicago Property

The Calumet Park Property

Further Evidence Regarding Respondent's Representation and Termination

C. Analysis and conclusions

1. Rule 1.3 - failing to act with reasonable diligence

3. Rule 1.16(d) - failing to protect client's interest upon termination

5. Rule 3.2 - failing to make reasonable efforts to expedite litigation

8. Rule 8.4(c) - dishonesty, fraud, deceit or misrepresentation

ADDITIONAL EVIDENCE IN MITIGATION

i. a system for maintaining records as required by Supreme Court Rule 769;

Kenneth G. Jablonski, Clerk of the

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