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In Re Lenz

OPINION FILED OCTOBER 18, 1985.

IN RE ROBERT J. LENZ, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The respondent in this case, Robert J. Lenz, was admitted to the practice of law on November 16, 1963. On April 16, 1984, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against the respondent.

We will briefly set forth the factual scenario. For several years, the respondent had represented Mrs. Doris Alexander, as well as her husband, prior to his death, and had handled various legal and business matters for the couple. When her husband died, Lenz took care of various matters relating to Mr. Alexander's estate. Mrs. Alexander had been extremely dependent on her husband, and when he died that dependence was transferred to Lenz, who testified that she called him as often as 20 times a day and would stop by his office several times in a single day.

Mrs. Alexander moved to Georgia in 1981, at which time she left Lenz in charge of the sale of her home. The contract sale of the house was made in October 1981, and on October 27, Lenz deposited the $9,900 down payment into his trust account. From this account he withdrew approximately $3,500 for the costs associated with the sale of Mrs. Alexander's home. On the same day, he wrote Mrs. Alexander a letter of explanation concerning the sale, the payments which had been made, and he concluded the letter with the following: "More to come later: please be patient." This was the last communication that Mrs. Alexander had from Lenz for more than six months, until May 1982, pursuant to inquiry by the Administrator.

Throughout this six-month period, Lenz was handling a personal injury case for Mrs. Adrian Garland, who was a paraplegic as a result of an automobile accident. Mrs. Garland's husband was unemployed and the family had a variety of other financial difficulties surrounding Mrs. Garland's personal injury case. Due to her physical infirmities, mobility was a serious problem, and Lenz located a used van with wheelchair-lift equipment which was available for $3,500. Mr. Garland assured Lenz he would have the money for the van on the Friday Lenz was to drive to Chicago to purchase the van. However, Mr. Garland told Lenz that he "missed the banker, but would get the money by Monday." Thereafter, Lenz purchased the van with a check for $3,500 drawn on the trust account. The following Monday, Lenz found out that Mr. Garland could not secure the loan or repay the $3,500. Instead of reimbursing the trust account from his own personal funds, Lenz left this amount to continue as an advancement out of the trust account, which consisted of funds belonging to other clients, including Mrs. Alexander. Because of this withdrawal, the trust account was below the amount received from the down payment for approximately six weeks.

Mrs. Alexander wrote Lenz inquiring as to why she had not received the proceeds from the sale of her home, and Lenz failed to respond. On March 12, 1982, Mrs. Alexander complained in writing to the Attorney Registration and Disciplinary Commission regarding Lenz' conduct. The Administrator wrote Lenz but did not receive a response. On May 1, 1982, after receipt of the Administrator's second request for a response to the complaint, the respondent answered and enclosed a trust account check for the amount due Mrs. Alexander from the down payment on the sale of her home. The check was returned by the Administrator with a letter suggesting that Lenz contact Mrs. Alexander directly, and on or before May 24, 1982, Mrs. Alexander received the check from the respondent.

A hearing was held on the Administrator's complaint. A panel of the Hearing Board found that the Administrator had proved by clear and convincing evidence that Lenz' conduct constituted (1) a failure to keep all funds belonging to his client in an identifiable trust account in violation of Rule 9-102(a) of the Code of Professional Responsibility; (2) a failure to render an appropriate account to his client regarding funds coming into his possession on behalf of his client in violation of Rule 9-102(c)(3); (3) a failure to pay promptly funds in his possession to his client, which the client is to receive, in violation of Rule 9-102(c)(4); (4) a conversion of funds entrusted to him; and (5) conduct which tends to bring the legal profession into disrepute. (87 Ill.2d R. 9-102.) Lenz admitted all violations charged.

At the close of its hearing, the Hearing Board stated:

"[C]learly disbarrment would be too harsh. Further it is the opinion of the Panel that a suspension of his license would serve no useful purpose under the circumstances. It is the recommendation of the Panel that Respondent should be censured by the Supreme Court pursuant to Rule 771(g) of the Rules in Admission and Discipline of Attorneys."

The Administrator, as well as Lenz, filed exceptions to the Hearing Board's recommendation. The Review Board affirmed the Hearing Board's report but stated that the recommendation as to the measure of discipline was inappropriate. The Review Board recommended that Lenz be suspended for a period of one year. Lenz' exception to the Hearing Board's report and recommendation under the rules stands as his exception to the Review Board. (87 Ill.2d R. 753(c).) The Administrator also filed exceptions to the Review Board's report and recommendation.

The only issue before this court is whether the respondent should be disciplined and, if so, what the discipline should be.

Findings of the Hearing Board and Review Board, based upon properly admissible evidence, are entitled to virtually the same weight as those of any other trier of fact. (In re Hopper (1981), 85 Ill.2d 318, 323.) After a review of the record, we conclude that the Administrator has proved by clear and convincing evidence that the respondent engaged in misconduct which warrants discipline. With regard to the appropriate sanction, while the recommendations of the boards may be considered, the final responsibility for imposing discipline upon an attorney rests with this court. (In re Kink (1982), 92 Ill.2d 293, 301-02.) The purpose of a disciplinary proceeding is to safeguard the public, to maintain the integrity of the profession, and to protect the administration of justice from reproach. (In re Goldstein (1984), 103 Ill.2d 123, 131.) In determining the appropriate sanction to serve this purpose, this court endeavors to achieve uniformity in the application of discipline, but it also considers each individual case on its own merits. See In re Nadler (1982), 91 Ill.2d 326, 333.

The Review Board, as well as the Administrator, cites a number of cases as relevant to the issue of what type of discipline is appropriate, referring to the aforementioned statement that uniformity and fairness require this court to compare the conduct of Lenz with that of other ...


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