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In Re Woldman

OPINION FILED OCTOBER 4, 1983.

IN RE BARRY MICHAEL WOLDMAN, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 2, 1983.

Two complaints were filed against the respondent, Barry Michael Woldman, by the Attorney Registration and Disciplinary Commission. The first complaint was in five counts, while the second complaint contained one count. The two complaints were consolidated for hearing. A panel of the Hearing Board unanimously recommended that the respondent be disbarred, and the Review Board unanimously approved the panel's report and recommendation.

The first complaint, in counts I and II, alleged misconduct by the respondent in handling the proceeds of a $170,000 personal injury settlement the respondent had negotiated on behalf of Murray Stiles. Respondent disputes the findings as to these counts. Counts III and IV of the first complaint alleged misconduct by the respondent in the handling of the proceeds of a $10,000 personal injury settlement that had been negotiated on behalf of Thomas Rourke. Respondent admits all the allegations of misconduct in these two counts. Count V of the first complaint alleged misconduct in the distribution of a $10,000 settlement of a personal injury claim of Patricia Sapyta. Respondent admits the allegations of the misconduct charged in this count. The second complaint, in its only count, alleged misconduct of the respondent in the distribution of the settlement of a personal injury claim of Jennifer Thompson, a minor. Respondent admits the allegations of misconduct alleged in this complaint. Thus, it is only the two counts involving Murray Stiles that are disputed. Respondent also contends that the sanction of disbarrment is excessive and unwarranted, in view of the evidence he presented concerning his character and reputation and the evidence of mitigating circumstances.

Murray Stiles retained the respondent to prosecute a personal injury claim. The respondent negotiated a $170,000 settlement of the claim. Before receiving the settlement draft, respondent and Stiles discussed how Stiles would invest the money.

According to the respondent, they negotiated an agreement evidenced by a promissory note which provided that Stiles would loan the respondent $70,000 to meet his personal and business expenses. According to Stiles, however, the respondent merely told him that he would invest his money at a 10% interest rate, and did not mention a promissory note or a security device. The parties also dispute whether the respondent told Stiles about his financial condition. He had debts of $200,000, had exhausted his line of commercial credit, and had various lawsuits for unpaid debts pending against him, including a mortgage foreclosure on his home. While the respondent claims that he advised Stiles to seek independent financial and legal advice, this is denied by Stiles, who agreed to the proposition without the benefit of counsel.

On July 31, 1978, the respondent received the settlement draft of $170,000 and deposited it in his client trust account. On August 2, 1978, he issued Stiles three checks in distribution of the settlement. One was for $70,000. Stiles endorsed this check and returned it to him. The respondent testified that he also contemporaneously executed a promissory note, but that his law clerk mistakenly failed to deliver it to Stiles until a later time. Stiles denied this assertion, however, and his denial is corroborated by a letter which the respondent had written to Stiles' new attorney, Val Bylaitis, on September 18, 1978, shortly after the settlement transaction. In this letter the respondent had told Bylaitis that no documents had been executed and no promissory note had been delivered concerning the loan, because he could not locate Stiles.

On August 18, 1978, the respondent deposited the check for $70,000 into an account used for business and personal expenses. On September 11, 1978, Stiles sent the respondent a letter, prepared by Bylaitis, which asked the respondent to make an account of these funds and return them. Two days later Bylaitis telephoned the respondent to repeat these requests. The respondent told Bylaitis he would return $40,000 immediately, but could return the remaining $30,000 only when he was able to liquidate Stiles' investment.

When Bylaitis sent the respondent a letter confirming the telephone conversation, the respondent, as noted previously, sent Bylaitis a reply letter characterizing the transaction as a loan and admitting no documents were executed. On October 4, 1978, the respondent gave Stiles a check for $40,061.15 and a promissory note for the remaining $30,000. Before returning these funds, however, Woldman had overdrawn his account and used Stiles' funds for business and personal expenses. None of the funds were ever invested for Stiles' benefit as the respondent had promised.

The respondent later defaulted on the note. On February 16, 1979, following the default, Stiles' wife wrote the Attorney Registration and Disciplinary Commission, without the knowledge or consent of her husband, and complained about the respondent's conduct. As a result, the respondent filed a defamation action against Stiles on July 13, 1979, in the circuit court of Cook County. He also drafted a letter to the Commission, which he had Stiles sign, purporting to withdraw the disciplinary complaint.

The letter stated that the transaction was a documented loan and attached an exhibit purporting to be a copy of a note which allegedly was executed on July 31, 1978. This statement was, however, demonstrably false. In his letter to Bylaitis of September 18, 1978, which constitutes a prior written admission as we have noted, the respondent stated that he did not execute a note. Thus, the exhibit was not a copy of the note but a false document created to evidence a note which respondent claimed to have lost.

At a meeting of the parties on July 17, 1979, respondent told Stiles he would repay him $10,000 and drop his defamation action if Stiles would sign the letter asking that the disciplinary proceedings be dropped. Although Stiles knew the letter was false, he signed it to obtain part of the money due him. Before this court, the respondent contends that the factual findings showing he converted Stiles' money and improperly negotiated a release of his defamation suit were contrary to the evidence and the law.

The Hearing Board must evaluate disputed questions of fact, and its findings, when affirmed by the Review Board, are entitled to essentially the same weight as those of any other trier of fact. (In re Hopper (1981), 85 Ill.2d 318, 323; In re Teichner (1979), 75 Ill.2d 88.) Under our Rule 753(c), the Administrator must prove allegations of misconduct by clear and convincing evidence. (87 Ill.2d ...


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