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In Re Lapinska

OPINION FILED OCTOBER 6, 1978.

IN RE KARL GEORGE LAPINSKA, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

This action is brought by the Administrator of the Attorney Registration and Disciplinary Commission. Count I of the complaint alleged that respondent, Karl George LaPinska, accepted private employment which was in direct conflict with his public duties as attorney for the city of Princeton, and that he wilfully misused his official position to gain a favorable settlement of the private controversy. Counts II through V charged that respondent caused to be published various self-laudatory articles which appeared in a local newspaper.

A hearing panel of the Attorney Registration and Disciplinary Commission found respondent guilty of misconduct on each of the counts and recommended he be suspended for six months. The Review Board reversed the hearing panel's conclusion with respect to counts II through V, but confirmed the findings as to count I. Emphasizing respondent's flagrant misuse of public office, the Review Board recommended disbarrment. Respondent excepts to the findings and recommendations which relate to count I, but admits that his conduct may warrant discipline. The Administrator does not dispute the reversal of counts II through V and, during oral argument, conceded that he does not seek discipline as severe as disbarrment. Consequently, the only issue here considered is the appropriateness of the discipline which the Review Board imposed.

Respondent's own testimony revealed the following facts. Robert E. Bird, Sr., a builder and real estate broker in Princeton, constructed a speculative home on a lot (209 East La Salle Street) which he owned. The lot measured 80 by 140 feet. A 60-foot-wide home was positioned thereon within 4 feet of the west lot line, in violation of a Princeton zoning ordinance which prohibited residences from being built closer than 10 feet from the side boundary of any lot. After construction and before selling the home, Bird, Sr., sold 10 feet along the east side of the lot to the adjacent lot owner. By doing so, he again violated the zoning ordinance.

On April 22, 1974, Bird, Sr., sold the residence to Thomas and Pauline Kutella for $33,500. At the time of sale (and at all times relevant to these proceedings) respondent was city attorney for Princeton and maintained a private practice. Respondent, as a member of the Illinois Attorneys Title Guarantee Fund, was engaged by Bird, Sr., to secure title papers on the lot. For these services, he billed Bird, Sr., in the sum of $152. The deed of sale, which was prepared by Bird, Sr.'s son, Donald Bird, an attorney, accurately described the lot as being 70 feet in width.

At a meeting of the Princeton city council in August 1974, the Kutellas, apparently irate because they had unknowingly purchased a 70-foot rather than an 80-foot lot, demanded that Bird, Sr., be charged with a quasi-criminal violation of the zoning ordinance. Respondent, in his capacity as city attorney, informed the Kutellas that they should stop by his office to sign a formal complaint. Such complaint was subsequently served on Bird, Sr., on or about August 12, 1974. No prior quasi-criminal charges had been filed against Bird, Sr. No charge was filed against the Kutellas, even though, according to the ordinance, both the person who created the violating condition and the present owner of the premises could be liable.

At the hearing on August 19, 1974, respondent appeared on behalf of the city; Donald Bird represented his father. Respondent recommended the minimum fine and apprised the court that the city had no further interest in the matter. Pursuant to this understanding, Robert Bird, Sr., pleaded guilty and was fined $10 and $5 in court costs.

Three days later, Thomas Kutella came to respondent's office and complained of the lenient treatment which Bird, Sr., had received. Kutella informed respondent that he was aware that the ordinance provided for a continuing violation and demanded that prosecution be pursued. Respondent suggested that Kutella appear at the next city council meeting to make his position known. After further discussion that day, Kutella and respondent entered into a retainer agreement whereby respondent would represent the Kutellas in a civil action against Bird, Sr., for breach of contract and fraud arising out of the sale of the property. The agreement provided that respondent would receive a contingent fee only from any recovery in excess of the cost of the property with improvements (approximately $43,500). The fee arrangement was for 25% over $43,500 if settled before filing suit, 33 1/3% if settled after suit was filed, and 40% if a second trial or appeal became necessary.

At the next city council meeting, Kutella stated that he wished to sign daily ordinance violation complaints against Bird, Sr. Respondent, who was present at the meeting and who would be responsible for prosecuting the quasi-criminal charges, did not inform the city officials that he also represented the Kutellas privately in the same matter.

The first of the continuing-violation complaints was prepared on the same day and served on Bird, Sr., on September 4, 1974. While respondent was representing the Kutellas in the private matter, he caused over 30 such complaints to be served on Bird, Sr. On September 5, 1974, when Bird, Sr., received the second such complaint, his son, Donald Bird, telephoned respondent and inquired why the plea agreement and payment of the fine plus costs had not disposed of the entire controversy. Respondent told Bird that the city had no further interest in the matter, but that Kutella continued to file complaints. Bird suggested at that time that respondent might have a conflict of interest, but respondent failed to acknowledge any possible conflict.

Respondent and Bird next conferred at Bird's law office on September 19, the evening before the return date on the first of the continuing-violation complaints. Bird mentioned his father's willingness to buy back the property from Kutella. Respondent stated that he did not think Kutella would agree to sell the property and that Kutella wanted the 10 feet to which he felt entitled. The next morning, at the courthouse, Bird again informed respondent of his father's readiness to settle. Bird, representing his father, pleaded not guilty to the ordinance violation.

Respondent received authorization from the Kutellas to settle for between $63,500 and $68,500. On September 23, respondent met with Bird and his father in Bird's law office. When respondent offered to settle for $68,500 (more than double the purchase price) Bird, Sr., walked out of the meeting. To document what had transpired, Bird, after his father had left the meeting, prepared a memorandum which was signed and initialed by both Bird and respondent. The memorandum recorded that the civil dispute could be settled for $63,500 provided that Kutella would sign a release of all civil actions and quasi-criminal complaints and respondent would recommend to the city of Princeton that a variance or occupancy permit be granted for the property. (A $63,500 settlement would net respondent $5,000 pursuant to his contingent-fee agreement with Kutella.)

Twice during the following week, respondent wrote to Bird using the stationery of the city attorney of Princeton. The letters informed Bird that "in the event of a settlement with Mr. Kutella," the city would issue an occupancy permit and would entertain no further complaints against Bird's father in connection with the zoning violations. Respondent also prepared a document which purported to absolve him of liability for representing both the Kutellas and the city. The release, which was to be signed by the Birds, stated that respondent "in no way used or threatened the use of his position as attorney for the City of ...


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