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In Re Kink

OPINION FILED OCTOBER 22, 1982.

IN RE RONALD T. KINK, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

On July 25, 1980, the Administrator of the Attorney Registration and Disciplinary Commission filed a three-count complaint before the Commission charging respondent, Ronald Kink, with professional misconduct. Count I alleged that respondent was negligent in the administration of an estate, and that he made certain misrepresentations in connection with the settling of that estate. Counts II and III charged him with the negligent administration of two other estates. The Hearing Board found respondent guilty only of the three neglect counts, and recommended that he be reprimanded. The Administrator filed exceptions with the Review Board, which subsequently issued a report adopting the findings and recommendation of the Hearing Board.

Two issues are raised on appeal: (1) Did the hearing and review boards err in finding that the misrepresentations alleged in count I were not proved by clear and convincing evidence? (2) Is reprimand an appropriate sanction under the circumstances of this case?

The facts relevant to count I of the complaint are as follows. William Honert died intestate in October of 1974. His estate consisted of a parcel of real estate located in McHenry County, an automobile, and $10,131.90 deposited in a bank account in the name of decedent, as trustee for Joseph Stryszak and Lucille Day. On October 18, 1974, respondent was retained as the attorney for the estate by Stryszak and Day. They informed him that Mary Nelson, one of the decedent's relatives, was adopted. Respondent indicated that he would need her adoption certificate in order to settle the estate.

In December of 1974, respondent filed a petition for letters of administration. A proof of heirship proceeding was conducted, during which Day testified as to Nelson's adoptive status. Subsequently, respondent was advised by the court reporter that an order declaring heirship would not be entered until an authenticated decree evidencing the adoption was provided. He was further informed that a failure to produce the decree may result in the testimony at the heirship proceeding being stricken. The adopted heir apparently refused to produce the necessary certificate. However, Stryszak obtained a copy thereof in April of 1976.

According to respondent's testimony, he later learned that there were procedures to avoid the requirement of producing the adoption certificate. He could have petitioned either for waiver of the adoption decree or to have the adopted heir's money deposited with the county treasurer until proper certification was presented. He concedes he never investigated the possibility of an appropriate legal remedy and did not advise the court of his difficulty in obtaining the adoption decree.

The evidence further indicated that a prospective purchaser was procured for the decedent's automobile. In order to effect the necessary transfer of title, respondent was required to submit an affidavit to the Secretary of State. He stated in the affidavit that no petition for letters of administration was pending, and that there were no creditors of decedent's estate. In fact, the petition was currently pending, and there was an outstanding doctor bill in the amount of $372. If respondent had acknowledged these circumstances in the affidavit, it is likely that the transfer of title would not have been issued.

Respondent testified that he erroneously believed the letters of administration were no longer pending because he never produced the adoption decree. However, he concedes that he was not informed the proceedings were terminated, nor did he check the court file to ascertain the status of the proceedings. When the Administrator inquired as to the reason, respondent indicated that he may have had a psychological problem and was in a "quandary" as to how to proceed with the estate.

With regard to the omitted doctor bill, respondent claimed that he reached an agreement with the doctor whereby the latter would be paid from the proceeds of the real estate sale described below. Consequently, he did not consider the doctor to be a creditor of the estate. Respondent's testimony was the only evidence of this agreement. He also indicated that the bill was omitted from an inheritance tax consent form because there was a question as to whether it was covered by insurance.

In August of 1976, Day entered into a contract to sell the real estate in McHenry County. Respondent was aware in September that the purchasers were prepared to close the transaction. He met with Day and Stryszak on May 20, 1977, at which time they signed consents to the sale. On September 12, 1977, respondent informed Stryszak that he had mailed the required consents to the remaining heirs. As of that date, however, he had not done so.

Three days later, Stryszak filed a complaint with the Disciplinary Commission, alleging respondent's failure to close the estate and to respond to Day's inquiries. On October 31, 1977, respondent gave Day the consents to obtain the signatures of the remaining heirs. On the same day, he informed the Commission that his client received the consents and would return them, executed, on November 14, 1977. He further indicated that he would file the petition that week. In apparent reliance on respondent's representations, the Commission subsequently closed its investigation. However, when Day appeared at respondent's office on the appointed date, he was not present. The petition was never filed.

In December of 1978, Day and Stryszak filed another complaint with the Disciplinary Commission, alleging that the estate was still not closed and taxes were unpaid. The following December, 1979, a complaint was voted against respondent. As of that date, he had not filed any pleadings in connection with the estate since 1974, or obtained the necessary approval for the sale of the real estate. He did, however, accept a $575 fee, $500 of which was attributable to his services performed in connection with the estate. Following the institution of the second complaint, respondent's clients discharged him and retained another attorney.

The evidence relevant to count II of the complaint indicates that, in April of 1972, William Rachner spoke with respondent concerning the estate of his deceased father, Rudolph Rachner. At the time of his death, the decedent owned two parcels of real estate, stock in two corporations, and an interest as a joint tenant in two savings accounts. Rachner's will left 50% of his property to his daughter, Grace, 40% to his son, ...


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