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10/25/89 In Re Thomas M. Joyce

October 25, 1989

IN RE THOMAS M. JOYCE, ATTORNEY, RESPONDENT


Before this court, respondent first contends that he is entitled to a new hearing because only two Hearing Board members presided over his hearing and because only one member of the original panel was present throughout the entire course of the proceedings. Respondent's hearing commenced on March 2, 1987, before a panel of two members of the Hearing Board. Respondent made no objection to the composition of the panel at that time. Following the presentation of evidence, the proceedings were adjourned and were subsequently continued twice. During the interim, one panel member left his position with the Board when he became a Judge. On August 27, 1987, respondent agreed to allow the Administrator to appoint a new panel member, who was instructed to review the transcripts and exhibits. That same day, an order was entered reflecting respondent's concurrence in the replacement of the outgoing panel member.

SUPREME COURT OF ILLINOIS

549 N.E.2d 232, 133 Ill. 2d 16, 139 Ill. Dec. 720 1989.IL.1669

Rehearing Denied January 29, 1990.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

On January 28, 1986, the Administrator of the Attorney Registration and Disciplinary Commission (the Administrator) filed a complaint charging the respondent, Thomas M. Joyce, with professional misconduct resulting from the improper handling of client funds. The complaint was later amended to include allegations of respondent's failure to reduce a contingent fee agreement to writing and to obtain his client's written consent to a division of legal fees. A panel of the Hearing Board found that the respondent had engaged in the commingling and conversion of client funds and in conduct involving dishonesty, fraud, deceit, or misrepresentation. The panel recommended that the respondent be suspended from the practice of law for two years. The respondent filed exceptions to the Hearing Board's report and recommendation. The Review Board concurred in the findings of fact, Conclusions of law, and recommended sanction of the Hearing Board. The respondent has filed with this court exceptions to the report and recommendation of the Review Board. 107 Ill. 2d R. 753(e)(5).

Respondent argues here that he is entitled to a new hearing because the matter was heard by only two members of the Hearing Board and because the hearing panel admitted into evidence the evidence deposition of a witness that was taken while respondent was not present, either in person or by his attorney. Respondent also challenges the sufficiency of the evidence and the recommended sanction.

On July 12, 1982, respondent was contacted by John D. Raikos, an Indiana attorney, for the purpose of registering a foreign judgment. Raikos had represented Kirk Equipment Company, the plaintiff in an action brought in Indiana State court against Heede International, Inc. On July 12, 1982, Raikos obtained a judgment in favor of Kirk Equipment in the amount of $2,916.10, plus costs. At the request of Raikos, respondent, who was a friend of Raikos, agreed to represent Kirk Equipment in the registration and collection of the judgment in Illinois. Raikos and respondent orally agreed to divide any fee received. At no time did respondent or Raikos have any written document reflecting any fee agreement with the client.

On November 18, 1982, the respondent filed a petition for registration of a foreign judgment in the circuit court of Du Page County. The petition named Linden-Alimak, Inc., as the corporation that had succeeded to the obligations of Heede International, Inc., the defendant in the Indiana action. Sometime later, Robert Kuykendall, president of Kirk Equipment, spoke with a representative of Linden-Alimak and agreed to settle the case; apparently this was done without the knowledge of either Raikos or respondent. On May 9, 1983, Linden-Alimak issued a check for $2,000 payable to "Thomas M. Joyce, As Attorney" and mailed it to respondent.

Respondent received the check from Linden-Alimak on May 11, 1983. Five days later, on May 16, respondent negotiated the check, depositing $1,800 into his account at American National Bank and Trust Company, in Chicago, and receiving $200 in cash. Respondent claims that he spoke with Raikos before negotiating the check. According to respondent, Raikos told him that Kuykendall had agreed to pay attorney fees of 60% of the entire settlement; Raikos informed respondent that 60% of the settlement amounted to $2,000 and that therefore the entire $2,000 check from Linden-Alimak belonged to Raikos and respondent as attorney fees. This was disputed by Kuykendall, who declared in a deposition that he and Raikos did not have a formal fee agreement, and who also stated that Raikos assured him on several occasions that he would receive a portion of the $2,000 settlement.

On June 15, 1983, prior to the payment of any funds to Kirk Equipment, the balance in respondent's account stood at $136.62. On June 17, 1983, respondent issued and sent to Kirk Equipment a check for $800; a notation on the check indicated that it was for "Settlement of Heede suit." Respondent claims that he sent the check because Kuykendall threatened to report him to various agencies if he did not pay him some part of the $2,000 cash settlement. On August 26, 1983, the check was returned to Kirk Equipment because of insufficient funds in respondent's account. Kuykendall later retained another attorney to recover the amount of the unpaid check, and he eventually received a cashier's check in the amount of $800.

On January 28, 1986, the Administrator filed a complaint against respondent. On August 8, 1986, the Administrator was allowed to file an amended complaint, charging that respondent failed to reduce a contingent fee agreement to writing; failed to obtain the client's written consent to a division of legal fees; failed to maintain a separate trust account for the deposit of client funds, or in the alternative, withdrew funds from a client trust account without notifying the client; failed to maintain records of client funds received by him and to render appropriate accounts to the client regarding those funds; failed to promptly pay to a client funds to which the client was entitled; engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; and converted client funds.

The Hearing Board found that the Administrator failed to establish that respondent had a duty to reduce the contingent fee agreement to writing. The Board made no finding with respect to the charge that respondent failed to obtain the client's consent to a division of legal fees. The Hearing Board concluded that the Administrator proved the remaining charges by clear and convincing evidence. Because respondent contends that the panel's ...


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