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11/21/88 In Re Raymond Earl Harth

November 21, 1988



531 N.E.2d 361, 125 Ill. 2d 281, 126 Ill. Dec. 66 1988.IL.1683

Disciplinary proceeding.


JUSTICE RYAN delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.


In this disciplinary proceeding, the Administrator for the Attorney Registration and Disciplinary Commission charged the respondent, Raymond Earl Harth, with four counts of neglect, and with one count containing a charge of conversion of a client's funds. The Administrator recommended that the respondent be suspended from the practice of law. The Hearing Board issued its report, finding that the respondent was proven guilty by clear and convincing evidence of all of the violations charged, and recommended that he be suspended from the practice of law for three months. The respondent filed exceptions to this report and recommendation. The Review Board affirmed the findings of the Hearing Board and likewise recommended that the respondent be suspended for three months. The respondent filed exceptions in this court pursuant to Rule 753(e) (107 Ill. 2d R. 753(e)).

The respondent acknowledges neglect of the legal matters as charged. Two issues are raised: (1) Was conversion proven by clear and convincing evidence? (2) Is suspension an appropriate sanction under the circumstances of this case?

Respondent was admitted to practice in this State in 1949. The testimony shows that in 1982 one of the complainants, William Dooley, hired the respondent to obtain a modification of a child custody order. Dooley's ex-wife had recently died and the children were living in Florida with their maternal grandparents. The grandparents initiated guardianship proceedings in Florida. In September 1982 the respondent obtained an order in the circuit court of Cook County awarding custody of the two children to Dooley. Respondent informed Dooley that a Florida attorney would have to be hired to enforce the order. In November 1982, Dooley gave respondent a $500 check to hire a Florida attorney. This check initially "bounced," but cleared upon presentation a second time and was deposited in respondent's client fund account. Respondent acknowledges that between January and August of 1983 he did nothing on the case. During this time, Dooley called respondent four to six times, receiving no response, and wrote to him twice requesting the return of the money.

In the respondent's client fund account there was Dooley's $500 and money from another client. On August 5, 1983, respondent, through a bookkeeping error, issued a check to the other client in an amount $200 in excess of what he should have paid. This caused the account to fall to $336.55. The following month the respondent discovered the error and deposited funds into the account, bringing it above $500. On September 14, 1983, the respondent returned the $500, without interest, to Mr. Dooley. Dooley claimed to have lost track of his children during the time respondent neglected the case, though they are still subject to the jurisdiction of the Florida court through the guardianship proceedings initiated there. The neglect of this matter and the handling of the client funds comprise the charges contained in count I of the Administrator's complaint.

With regard to count II, Alois Bell hired respondent to handle a dissolution of marriage proceeding. In the proceeding an order was entered directing Bell to pay $400 per month in temporary maintenance. Respondent told Bell not to pay the temporary maintenance because he would appeal the order. In August 1981, respondent filed a notice of appeal. The appellate court issued a rule to show cause requiring respondent to respond within 14 days as to why he failed to file a docketing statement. Respondent failed to file a response, and he did not file for a stay of the order for the payment of the temporary maintenance. Respondent claims that during this time there were negotiations going on which may have negated the necessity of the appeal. The appeal was dismissed for want of prosecution.

In January 1982, Bell's wife filed a petition for a rule to show cause for failure to pay temporary maintenance. Neither respondent nor Bell appeared at the hearing, and as a result, a body attachment order for Bell was issued. On respondent's motion, the attachment order was vacated and Bell was ordered to appear in February 1982. Bell was not informed until before the hearing that an attachment order had been entered or that the appeal had been dismissed. In July 1982, the dissolution of marriage order was entered, and Bell was ordered to pay $300 per month in alimony and to pay the arrearage in temporary maintenance. The Hearing Board and Review Board found that respondent neglected this legal matter, failed to properly carry out his employment contract, damaged the client during the course of their professional relationship, and counseled the client not to obey the court order.

The evidence relevant to count III of the complaint indicates that the respondent was hired in January 1983 by Kirk and Wanda Day to represent them in the purchase of an apartment building. During the June 1983 closing, the Days and the sellers entered into an escrow agreement requiring the sellers to pay the Days part of the rent proceeds. In August 1983, the sellers' attorney sent respondent a $293.36 check, representing the Days' portion of the rent owed pursuant to the escrow agreement. The respondent did not receive the check and did nothing to obtain the payment. In June and August, the Days unsuccessfully attempted to discuss the money with respondent. During this time the sellers' attorney also wrote to respondent but received no answer. In August, the Days sent the respondent a letter requesting the money they were entitled to under the escrow agreement. The respondent called the Days and stated he would get to it after completion of other pressing matters. On September 2, 1983, the Days filed a charge with the ARDC. They eventually contacted the sellers' attorney and requested that he send them the money. On March 6, 1984, the seller's attorney paid them their portion of the escrow proceeds.

In the last count, the evidence established that in September 1982, Juanita Van Dorn retained the respondent to modify a dissolution of marriage judgment. She paid him $500 and gave respondent certain documents relating to property interests. Between November 1982 and April 1983, Van Dorn unsuccessfully attempted to contact respondent. Respondent claims that he reviewed the documents and concluded that the judgment could not be reopened. He made no attempt to communicate his findings to Van Dorn and did not return the documents to the client. The Hearing and Review Boards found that respondent neglected this legal matter and ignored repeated attempts of a client to contact him.

Several character witnesses testified on the respondent's behalf. The witnesses, two Illinois appellate court Judges, a Cook County circuit court Judge, a Chicago alderwoman, and a civil rights leader, testified that the respondent had an excellent reputation as an attorney. None of the witnesses were familiar with the facts that gave rise to this proceeding. Testimony also ...

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