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In Re Freel

OPINION FILED FEBRUARY 19, 1982.

IN RE JAMES D. FREEL, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

On May 9, 1980, the Administrator of the Attorney Registration and Disciplinary Commission (Commission) filed a one-count complaint against respondent, James D. Freel, who was admitted to the practice of law on November 19, 1954. A panel of the Hearing Board found that the Administrator had proved by clear and convincing evidence that respondent had failed to properly account for his client's funds, had failed promptly, upon request, to pay and deliver the client's funds, and had commingled the client's funds with his own. The panel recommended that respondent's license to practice law be suspended for three months. Both the Administrator and respondent filed exceptions to the report of the Hearing Board. The Review Board ordered that respondent be reprimanded. We allowed the Administrator's petition for leave to file exceptions. 73 Ill.2d R. 753(e).

On May 14, 1974, John Meyers was injured while working. Meyers retained respondent, and respondent negotiated a settlement of Meyers' workmen's compensation claim and was paid a fee. In 1975, Meyers asked respondent to represent him in a personal injury action against the company on whose premises he was injured. Meyers and respondent agreed orally to a one-third contingency fee. In March 1976 respondent filed suit, and in November 1978 the case was settled for $2,500.

Respondent explained to Meyers that his former employer's compensation carrier had claimed a lien on the settlement funds. Respondent negotiated a reduction of the lien to $1,000. The respondent received a check in the amount of $2,500 payable to Meyers and his wife, respondent, and the employer's compensation carrier. Meyers and his wife endorsed the check in December 1978 and returned it to respondent. Respondent endorsed the check but did not send it to the employer's insurance carrier until late February 1979. Between December 1978 and March 1979, Meyers telephoned respondent's office and home at least two dozen times to inquire what had happened to the settlement money. Meyers also visited respondent's Chicago office on two occasions, but was told each time that respondent was not in. During this period Meyers was unable to learn anything regarding the settlement. He mailed a complaint to the Attorney Registration and Disciplinary Commission, relating the foregoing events. The complaint was received by the Commission on March 7, 1979.

The employer's compensation carrier received the fully endorsed check late in February. On March 1, 1979, it issued a check payable to Meyers and respondent in the amount of $1,500, the amount of the check less the amount agreed upon in settlement of the lien. On March 5, 1979, respondent mailed this check to Meyers for his endorsement. Meyers received the check after he had filed the complaint against respondent with the Commission. Nevertheless, on March 9, 1979, Meyers endorsed the check and returned it to respondent.

When respondent received the check he deposited $1,400 in his business account and took $100 in cash. Bank records admitted into evidence show a deposit in the amount of $1,400 on March 14, 1979. Respondent admitted that the account in which the money was deposited was his only business account. It was not a clients' trust account or escrow account. Respondent did not prepare a settlement sheet or show Meyers receipts for court costs or doctor bills which were to be deducted from his share of the settlement.

Meyers again telephoned respondent about the settlement, but respondent, having learned of the complaint pending before the Commission, told Meyers to "buzz off." He told Meyers that he would wait for the Commission to act before he disbursed any funds. In letters addressed to the Attorney Registration and Disciplinary Commission, dated March 23, 1979, and April 6, 1979, respondent stated that distribution of the funds awaited the directions of the Commission.

Meyers employed Sara Lyn Smith, an attorney, to recover the settlement funds. On September 26, 1979, respondent forwarded to Smith a check made out to Meyers and Smith in the amount of $468.25, the amount respondent asserted was due Meyers after deduction of expenses and court costs and respondent's one-third contingency fee. The check was dated March 14, 1979. A handwritten settlement statement sent with the check showed that $498.75 was deducted for a "doctor's bill" and $49.50 for "court costs." Respondent had not previously mentioned the doctor's bill to Meyers or Smith and had not shown either of them the bill. Smith deposited the check in her clients' trust account, but the check, due to its "stale" date, was not paid.

Eileen Downey, an attorney sharing office space with Sara Lyn Smith, took over the matter and wrote respondent concerning the returned check. Respondent responded in a handwritten message stating, "I have placed the net proceeds previously tendered in the bank at Platteville, Wis. If you want it please advise. If you insist on more, file suit." Downey testified that because of the vague language of the note and the fact that respondent did not indicate the name of the bank in which the funds were held, she did not consider this to be a settlement tender. She filed suit for $1,000, and the case was later settled for $700.

At the hearing before the Hearing Board panel, respondent explained that the check which he sent to Sara Lyn Smith on September 26, 1979, was dated March 14, 1979, because that was the date on which he had written in Meyers' name, the date, and his signature. He did not calculate the amount due to Meyers and send him the check at that time because he hoped to negotiate a reduction of the doctor's bill. When Smith demanded the money, he added her name to the check to secure her attorney's lien and inserted the amount he thought was due and owing to Meyers.

Respondent testified that some time after depositing the funds he placed fourteen $100 bills with which he had intended to purchase "classical stamps" in an envelope and put the envelope in his file. He stated that he paid the doctor's bill, in cash, out of these funds. The file in which this envelope was kept was lost for some time but was found shortly before the hearing.

Respondent also testified that after the check issued to Smith and Meyers was returned as a "stale" item, he went to Platteville and opened a bank account in the amount he felt was due and owing to Meyers. He stated that this was the account to which he referred in his communications to attorney Downey. He stated that, at the pretrial conference at which the suit filed by Downey was settled, she demanded cash. She refused to have the bank account handed over to her because respondent had indicated that there would be some delay in getting the proceeds of the account because it was a "90-day account."

The hearing panel recommended that respondent be suspended from the practice of law for three months. On review, the Review Board of the Attorney Registration and Disciplinary Commission, in lieu of recommending disciplinary action by this court, issued a reprimand. The Review Board gave no reasons for its order.

The Administrator argues that the findings of the Hearing Board that the respondent had commingled his client's funds with his own, had converted these funds to his own use, and had failed to account to his client concerning the handling of these funds were proved by clear and convincing evidence. He argues that the evidence also shows ...


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