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01/30/87 In Re Paul Frederick Braner

January 30, 1987

IN RE PAUL FREDERICK BRANER, ATTORNEY, RESPONDENT


Before the Review Board, respondent argued that he had not breached his fiduciary duty to Mrs. Booker because his duty terminated when he left the bank. We reject this argument as did the Review Board. In People ex rel. Daley v. Warren Motors, Inc. (1986), 114 Ill. 2d 305, 318-19, we held that a public official may breach a fiduciary duty even when he is no longer employed by the public body at the time of the breach. Warren Motors concerned a former deputy commissioner of the Cook County board of appeals who fraudulently reduced tax assessments by entering the board's office after hours and altering tax records. This court concluded that the former commissioner breached his fiduciary duty to the board even though he was no longer employed by it because the reduction "was accomplished through [his] experience as a deputy commissioner and his access to the office's records." 114 Ill. 2d 305, 315.

SUPREME COURT OF ILLINOIS

504 N.E.2d 102, 115 Ill. 2d 384, 105 Ill. Dec. 233 1987.IL.94

Disciplinary proceeding.

APPELLATE Judges:

JUSTICE SIMON delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SIMON

The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against the respondent, Paul Frederick Braner, charging misconduct resulting from his representation of James Booker in two separate proceedings before two different divisions -- the probate division and the domestic division -- of the circuit court of St. Clair County. The Administrator alleged that (1) the respondent failed to disclose pertinent information in both proceedings in violation of Canon 7 of the Illinois Code of Professional Responsibility, and (2) he defrauded and deceived the Illinois Department of Public Aid, James Booker's wife, Betty, who was mentally incompetent, and the court, in violation of Canon 1 of the Code.

The Hearing Board found respondent guilty of violating both canons and recommended disbarment. The Review Board affirmed these findings and also recommended disbarment. The matter is before us on the respondent's exceptions to the Review Board's recommendation.

The respondent was admitted to the Illinois bar in 1955. After two years in private practice, he became a trust officer for the Belleville National Savings Bank (the bank) and remained in that position until 1979. While a trust officer, the respondent was responsible for handling Betty Booker's conservatorship. Mrs. Booker had sustained permanent brain damage in an automobile accident and was confined to a nursing home. The bank was appointed conservator of her estate in 1974 after she had been declared incompetent by the circuit court of St. Clair County.

The estate consisted of a half interest in Mrs. Booker's marital residence, which she held in joint tenancy with her husband, James, and a judgment of $250,000 which the bank, as conservator, obtained against the driver who caused Mrs. Booker's injuries. Because of limitations in the driver's insurance coverage, only $10,000 was collected, and this sum was ultimately expended in later unsuccessful litigation against the insurance company. There was not enough money in Mrs. Booker's estate to pay her substantial medical bills, and her husband and the Department of Public Aid paid them. In 1979, the Department filed a $10,474.56 claim against the estate.

In 1982, after the respondent had left his position with the bank and had opened a private practice, James Booker asked the respondent to represent him in a dissolution-of-marriage action and a claim against his wife's estate for his payment of her medical bills. The respondent filed a petition in the probate court alleging that the estate owed Mr. Booker $25,200 and requesting that Mr. Booker's claim be given priority over any claim by a public source. The petition prayed that Mrs. Booker's interest in the marital residence be conveyed to Mr. Booker as reimbursement.

Although the respondent was aware that the Department of Public Aid had a claim against Mrs. Booker's estate, he neither served the Department with notice of the petition nor informed the court of the Department's claim. In addition, the respondent failed to notify Mrs. Booker or the bank, as her conservator, of the proceeding. On June 30, 1982, in an ex parte hearing, the court ordered Mrs. Booker's interest in the marital home transferred to Mr. Booker. This transfer left Mrs. Booker's estate with no assets.

Next, the respondent prepared a petition requesting that Mrs. Booker's conservatorship be terminated and that her civil and legal rights be restored. The respondent delivered the petition to the bank, and a trust officer at the bank signed and filed it with the probate court; on July 26, 1982, the court terminated the conservatorship and restored Mrs. Booker's civil and legal rights. The respondent, in explaining why he drafted the petition when he had not been employed by the bank for three years, merely stated that, had he not prepared the document, the bank would have neglected to close the conservatorship. On the same day that the court terminated Mrs. Booker's conservatorship, the respondent filed a verified petition on behalf of Mr. Booker for dissolution of marriage.

A few days later, on July 29, 1982, the probate court appointed a guardian ad litem for Mrs. Booker and gave the guardian 21 days to file a motion to reconsider the order transferring her interest in the marital home. Instead of filing such a motion, the guardian reported to the court on August 17, 1982, that Mrs. Booker's interest in the home was subject to a Department of Public Aid lien and that she would gain little benefit if the transfer were rescinded. The guardian therefore advised the court that in his opinion there was no need to nullify the transfer of her interest in the property. The record contains no explanation as to why the probate Judge appointed the guardian ad litem and why neither the guardian nor the ...


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