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In Re Ackermann

OPINION FILED DECEMBER 1, 1983.

IN RE JAMES EUGENE ACKERMANN, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

The Administrator of the Attorney Registration and Disciplinary Commission filed a nine-count complaint before the Commission charging respondent, James E. Ackermann, with professional misconduct. All nine counts charged that he had neglected legal matters entrusted to him. The Hearing Board found respondent guilty on all counts. It also found that respondent had been addicted to alcohol during the period of time involved herein. It recommended that, in addition to being censured, respondent be placed on probation for two years. The Administrator filed exceptions with the Review Board, which had adopted the findings of the Hearing Board, but recommended that respondent be suspended for three years, that the order of suspension be stayed, and that he be placed on probation for three years. Respondent appeals from the report and recommendation of the Review Board.

One question is raised: Is the sanction recommended by the Review Board appropriate under the circumstances of this case?

Respondent, James E. Ackermann, has been practicing law in Illinois since 1962. This is the first time he has been the subject of a disciplinary proceeding. His professional problems are traced to a period of time beginning in 1974, shortly after the death of his law partner, and ending in 1980, when he voluntarily entered the alcoholic-treatment center at Lutheran General Hospital in Park Ridge. During this period he became addicted to alcohol and thereby became incapable of managing his personal and professional life. The nine-count complaint filed May 6, 1981, by the Administrator reflects a pattern of negligent management of legal matters beginning in 1974.

Counts I, IV, V and VIII involve dissolutions of marriage. Count I relates to the representation of Janet Hedger. Respondent received $100 towards a $250 fee. He prepared documents which were signed by the Hedgers in September of 1978. Subsequent to the preparation of these papers, respondent scheduled, but did not keep, various court dates. Mrs. Hedger met with respondent at the Richard J. Daley Center on one of these scheduled court dates. She testified that respondent told her a new law eliminated the necessity of parties appearing before the judge to obtain a divorce. She was given papers to sign and was told that she was technically divorced. Several months later respondent informed her that she would have to appear in court for the divorce. A petition for dissolution of marriage was never filed. Mrs. Hedger ultimately was forced to retain new counsel in June of 1979.

The facts relevant to count IV are: Mary Wudtke, the wife of respondent's client Richard Wudtke, alleged that he neglected a dissolution-of-marriage proceeding. Respondent first met with the Wudtkes in February 1979. Mrs. Wudtke maintained that at a July 1979 meeting with the Wudtkes at the Richard J. Daley Center, respondent told Mrs. Wudtke to sign a property settlement and a pro se appearance form, and told her that the dissolution of marriage "would be all taken care of since an uncontested divorce did not necessitate a court appearance." Respondent denied this allegation, and the testimony of his client, Richard Wudtke, rebuts Mrs. Wudtke's statement. The petition for dissolution of marriage was dismissed for want of prosecution, the dismissal order was vacated, and the judgment of dissolution of marriage was entered on September 7, 1979.

The facts of count V set forth another failure by respondent to file a petition for dissolution of marriage. Respondent received a $200 retainer fee from Theresa Deering in December 1977. Although he prepared the necessary papers and began negotiations with an attorney representing Mr. Deering, he did not follow through, and eventually Mrs. Deering sought new counsel.

Count VIII involves both a dissolution-of-marriage case and a criminal battery charge which arose out of the marital relationship. Respondent's client, Frank Marcus, paid him $172.56 in April 1980 to defend him in the criminal charge and represent him in the dissolution-of-marriage case. A default judgment was entered against Marcus in the dissolution-of-marriage case when respondent failed to appear or plead, necessitating the retention of new counsel to represent him. A public defender was eventually appointed by the court in the criminal case after respondent failed to make several scheduled appearances.

Counts II and VII involve neglect in the administration of estates. In count II, respondent failed to obtain transfer of title to twenty-five $100 United States Savings Bonds for his client, Mrs. Tillie Peters. He had been retained by Peters in July 1977 to represent her interest as sole legatee in the estate of Patrick Grace. He received a fee of $765 from his client and did prepare and file appropriate tax returns. He also resolved Peters' interest in a pension plan and an insurance policy. With regard to the savings bonds, respondent testified that he submitted improper forms to the Treasury Department. The bonds were returned to him, where they remained in his files from 1977 through 1979, when he resubmitted them to the Treasury Department.

The evidence relevant to count VII of the complaint indicates that respondent was retained by Raymond Beineman to settle the estate of Ida Smith, receiving $1,100 in attorney fees. Pursuant to this matter, he received a check in 1977 for $3,592.59 to be used to pay the inheritance tax. The check was never cashed but remained in his file until October 1979. He finally filed the inheritance tax return early in 1980 and has since reimbursed Beineman for the interest and penalties incurred as a result of the late filing. Respondent was also required to redeem $925 in Series E Savings Bonds registered in the name of Leon F. Smith with Ida Smith named as a co-owner. He testified that he prepared documents necessary for redemption but, as with the Grace estate, prepared them on the wrong form. Beineman eventually redeemed the bonds himself.

Counts III, VI and IX all involve real estate transactions. Respondent's representation of Northwestern Cutlery Supply Company is the subject of count III. Respondent had incorporated the business in 1975 and represented his client in the purchase of real estate later that year. Following the closing, he failed to record the deed evidencing the conveyance of the property. In addition, he did not comply with repeated requests for the return of all corporate records and materials pertaining to the real estate transaction. He testified that he lost the file. The client maintains that respondent never informed them or their new counsel that the file had been lost.

With regard to count VI, the evidence established that respondent was retained by Joseph Sekera in August 1977 to negotiate the sale of one property and the purchase of another. Pursuant to the sales transaction, respondent was to hold $800 in escrow to pay the 1977 taxes on the property when they became due, as well as the prorated 1978 taxes. Any excess funds on deposit after payment of the taxes were to be returned to Sekera. Respondent failed to pay the tax bills. Sekera learned of the delinquent tax bills in May of 1979, and upon contacting respondent he was assured that respondent would take care of the matter. The combined tax bill was $661.30. Respondent sent Sekera a check for $138.70 but failed to pay the tax bill. The mortgagee eventually paid the taxes. In November 1980 Sekera filed a complaint against respondent with the Attorney Registration and Disciplinary Commission. Respondent repaid the mortgagee in January 1981, including interest and penalties incurred.

Count IX involves a matter similar to count III. Respondent was engaged in 1974 by Mr. and Mrs. Frank Munaretto to represent them in the purchase of real estate. As in count III, respondent prepared the necessary documents and handled the closing but failed to record the conveyance. He also neglected to record the release of the seller's mortgage and to obtain title insurance on the property. The clients were required to retain other counsel to represent them in these matters.

Respondent argues that all counts in the complaint can be traced to behavior symptomatic of organic brain syndrome due to repeated intoxication. Memory lapses, poor judgment, procrastination and inability to meet deadlines or perform duties are all characteristic of this syndrome. In addition, he points to the 14 years prior to the addiction when he practiced law without difficulty, as well as the past three years when he has adhered to strict rehabilitation. Respondent testified, as did his wife and sister, ...


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