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In Re Heilgeist

OPINION FILED OCTOBER 3, 1984.

IN RE ROBERT JOHN HEILGEIST, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The respondent, Robert John Heilgeist, was admitted to the Illinois bar on November 29, 1955. On November 12, 1981, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against the respondent alleging misconduct arising out of his dealings with two clients, Waldemar and Christel Hein. The Hearing Board recommended that respondent be suspended from the practice of law for 18 months. Respondent filed exceptions to the Hearing Board's recommendations. The Review Board of the Attorney Registration and Disciplinary Commission reviewed the matter and filed a report finding that respondent had "engaged in the creation of false evidence," and that respondent had not failed to withdraw as the Heins' counsel in violation of the Code of Professional Responsibility. The Review Board recommended that respondent be censured. This court allowed the Administrator leave to file exceptions to the report of the Review Board.

Since the respondent, in his brief before this court, adopted the Administrator's statement of facts as contained in the Administrator's brief that was filed before the Review Board, we will also accept that statement of facts.

On May 25, 1978, Waldemar and Christel Hein consulted respondent regarding their rights arising out of an April 10, 1977, construction agreement with E.W. Wiswald Builders. The Heins presented respondent with the construction agreement, a list of items not properly or timely completed, various materialmen's liens, and pictures of the building.

According to the Heins, respondent advised them that they would be successful in a contract action against Wiswald and suggested that they terminate the construction agreement. When Waldemar Hein objected due to the further delay incident to such action, respondent suggested that the building could be completed by August 1, 1978, by Artisan Construction. Artisan Construction was an assumed name for a business being conducted by George Radtke, the fiance of respondent's secretary. The Heins agreed to follow respondent's advice and also to pay respondent a $500 retainer fee for his legal services, which Christel Hein sent to respondent on May 26, 1978.

Within a few days of the initial conference, respondent personally observed the serious construction problems. The building had been "red-tagged" for various building violations by the city building department. Shortly thereafter, pursuant to respondent's arrangement, Radtke appeared at the site with a copy of the list which the Heins had provided respondent and inspected the building. The Heins did not participate in his inspection.

On June 6, 1978, pursuant to the direction of the Heins, respondent sent Wiswald a letter terminating the construction agreement. Shortly after June 22, 1978, Christel Hein delivered to respondent's office a summons and complaint which was served on her and related to Wickes v. VIP Holding, E.W. Wiswald Builders, Waldemar Hein and Christel Hein, 78 CH 205 (circuit court of Lake County). On July 6, 1978, respondent filed an appearance, answer and counterclaim against Wiswald in that case on behalf of the Heins.

On or before August 3, 1978, respondent drafted a proposal on behalf of Artisan, for submission to the Heins, setting forth certain construction services to be performed on the building which was the subject of the above-described construction agreement and litigation. Shortly thereafter, respondent delivered the proposal to the Heins.

According to the Heins, after they had reviewed the document, they returned to respondent's office and discussed the proposal with him. Waldemar Hein questioned the quoted prices, especially the $2,700 carpentry figure. According to the Heins, respondent replied that his legal fees would be included, but that the Heins should not disclose this to the judge. Respondent allegedly further cautioned the Heins to attribute the payments to be made solely to carpentry, brickwork and plumbing. Respondent denied making any such statements.

After returning home and discussing the proposal, Waldemar Hein signed it. Christel Hein brought the signed document back to respondent's office. Christel Hein testified that after she and respondent made various adjustments to the proposal, respondent signed "Artisan Constr." to the document. According to respondent, respondent's secretary signed "Artisan Constr."

A few days after the proposal had been accepted, respondent undertook to complete the services described in the Artisan contract because Radtke abandoned the contract. Respondent knew if he did the work he might have to be a witness in the case in which he was representing the Heins. According to respondent, he advised the Heins of Radtke's abandonment and offered to complete the construction services for them. Respondent testified that the Heins and he entered into such an agreement after respondent disclosed that as a result of his dual role as attorney and builder, he might have to withdraw as their attorney and appear at trial to prove the extent of damages. The Heins denied that respondent made any such disclosures.

Pursuant to their proposal and at the direction of the respondent, on three different occasions the Heins delivered to respondent three cashier's checks purchased from the Elmhurst Federal Savings and Loan Association and made payable to Artisan Construction. The three checks, dated August 28, 1978, September 26, 1978, and December 26, 1978, totaled $8,539.95. According to respondent, he requested these checks for use as evidence, because it was to the advantage of the Heins. Respondent anticipated that these checks payable to Artisan would be introduced at trial, even though Artisan had done little work and had received only $200.

Respondent endorsed and cashed each of the above-described checks at the Bank of Lake Villa, deposited the cash into his business account at the same bank, and paid various family members and other individuals cash for various construction services without obtaining any receipts. The record indicates that respondent retained a portion of the $8,539.95 for his contracting services. The record does not indicate how much of the money was kept by respondent, but the Heins did not allege that the $8,539.95 was excessive or unreasonable.

On January 24, 1979, while representing the Heins in case No. 78 CH 205, respondent filed answers to interrogatories, sworn to by the Heins, stating that Arthur Lichter Construction Company (Arthur Lichter did some brick work on the fireplace of the Heins' building) and Artisan Construction were the only contractors which performed services at the building and attributing the work of his family to Artisan Construction. Respondent attached copies of the face of two of the checks payable to Artisan, but cashed by respondent. It is unclear from the record why the respondent did not produce a copy of the face of the third check. At the deposition of Waldemar Hein taken on March 2, 1979, respondent represented that Artisan was the contractor involved.

As of March 19, 1979, respondent had sent no bill to the Heins for any legal services. On March 19, 1979, respondent threatened to withdraw if the Heins did not pay $1,450 in additional legal fees prior to trial. On March 26, 1979, Waldemar Hein demanded an accounting of the funds delivered to respondent and stated that respondent had told them in August 1978 that his fee would be included in the proposal amount. On March 27, 1979, respondent wrote a letter to Waldemar Hein giving him an accounting of the legal work he had done and the hours he had spent. In his letter, the respondent did not deny that the proposal price was to include his legal fees. On April 8, 1979, Waldemar Hein replied in writing, stating, in part:

"When we signed the contract with you, you told us that all of the lawsuits will be included in $8,905 and $500 retainer, but we ...


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