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11/22/95 DOUGLAS WAYNE SMITH ATTORNEY RESPONDENT.

November 22, 1995

IN RE DOUGLAS WAYNE SMITH, ATTORNEY, RESPONDENT.


The Honorable Justice McMORROW delivered the opinion of the court:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

In this attorney disciplinary case, we review findings that respondent, Douglas Wayne Smith, engaged in a pattern of neglecting client matters, failing to expedite litigation, and failing to communicate with clients who retained respondent to represent them in dissolution of marriage proceedings. It was also determined that respondent's misconduct prejudiced the administration of justice and that he failed to promptly refund monies to a client who had discharged him.

Background

Respondent has been licensed to practice law in this State since 1980. His practice is concentrated in domestic relations, and approximately 50 to 100 of his case files were open and pending in 1991, the period of timewhen the majority of the misconduct was alleged to have occurred.

Respondent testified before the Hearing Board regarding his standard business practices. He stated that he communicated with his clients primarily by telephone. It was not respondent's practice to preserve phone messages from clients and he rarely noted the substance of his client phone conversations for his files. Respondent had no organized method of documenting the amount of time that he devoted to his clients' cases. He described his method of recording time spent on a client's file as "haphazard." Respondent testified that if he spent a few hours preparing a document related to a client's case or going to court for a client, then he would bill the client for that time. However, respondent would not keep track of the time that he devoted to a case if the marriage dissolution lawsuit was uncontested. Respondent estimated that he only billed his clients for approximately 10% of all client phone calls.

Respondent had no central system to monitor the progress of his cases. During 1991, respondent kept a pocket diary to track court dates of his pending cases. Dates of service were maintained on a separate legal pad, but not in respondent's pocket diary. Prove-up dates were also maintained on a separate legal pad. Respondent stated that after a prove-up hearing, he often waited for the court reporter to call him with a ready transcript as a reminder for him to present the final judgment to the court for approval and entry. Respondent testified that every two or three weeks, he would go through all of his files to check the status of each of his cases. The files of the seven cases at issue in this matter were not marked with the filing date or with the date of service. The chairman of the Hearing Board characterized respondent's case management system as the "court-reporter-diary-jiggle-my-memory-system."

The specific allegations of misconduct filed by the Administrator of the Attorney Registration and Disciplinary Commission (ARDC) pertained to respondent's representation of seven clients in dissolution of marriage cases. Six of the seven clients signed a standard contract when they retained respondent. In respondent's standard contract, the client agreed to pay $765 in fees ($500 minimum fee retainer) and costs ($265) in exchange for respondent's representation. The client agreed to pay respondent $100 for each hour that he devoted to the client's case. If the client paid by personal check, the case would not be filed for at least 10 business days. The seventh client, Rene Espineli, signed a form contract which retained respondent to represent Espineli in an uncontested dissolution of marriage action; attorney fees were set at $80 plus costs. In each case, respondent specified that the dissolution of marriage petition would not be filed until all of his fees were paid in full by the client.

Six of the seven clients who retained respondent to represent them testified before the Hearing Board regarding respondent's mishandling of their cases. The spouse of the seventh client who retained respondent also testified in behalf of the Administrator. All gave evidence tending to show that respondent agreed to represent the clients, who paid in full the attorney fees respondent required before he would begin to handle their cases. Once the fees were paid, however, respondent would fail to expeditiously handle the legal matters and would fail to keep his clients informed of the status of their cases. The witnesses' testimony is set forth in greater detail below with respect to respondent's challenges to the sufficiency of this evidence.

Following its hearing, the Hearing Board determined that respondent had engaged in professional misconduct. The Hearing Board's findings of misconduct included sixcounts of failing to communicate with clients in violation of Professional Conduct Rule 1.4(a) (134 Ill. 2d R. 1.4(a)); five counts of failing to expedite litigation consistent with the interests of his clients in violation of Professional Conduct Rule 3.2 (134 Ill. 2d R. 3.2); five counts of neglecting client matters in violation of Professional Conduct Rule 1.3 (134 Ill. 2d R. 1.3); two counts of conduct prejudicial to the administration of justice in violation of Professional Conduct Rule 8.4(a)(5) (134 Ill. 2d R. 8.4(a)(5); see also 107 Ill. 2d R. 1-102(a)(5)); and one count of failing to promptly refund an unearned fee following the termination of the attorney-client relationship in violation of Professional Conduct Rule 1.16(e) (134 Ill. 2d R. 1.16(e)).

As a disciplinary sanction, the Hearing Board recommended a 17-month suspension from the practice of law, with a stay of 12 months of the suspension subject to the successful completion of several probationary conditions. The Review Board adopted the Hearing Board's findings of misconduct, with one exception, and agreed with the disciplinary sanction recommended by the Hearing Board.

Respondent filed a petition for leave to file exceptions to the report and recommendation of the Review Board with this court (134 Ill. 2d R. 753(e)) and asks this court to dismiss the Administrator's complaint or, in the alternative, grant him a new hearing. The Administrator filed a cross-exception requesting that this court reinstate the Hearing Board's finding that respondent had failed to promptly refund an unearned fee.

I

Respondent argues that the Hearing Board's finding that he failed to communicate with six of his clients in violation of Professional Conduct Rule 1.4(a) (134 Ill. 2d R. 1.4(a)) was based upon an erroneous interpretation of ARDC Rule 233 (Dis. Com. R. 233 (eff. April 19, 1985)). The Hearing Board's determination involved respondent's answers to the Administrator's allegations that respondent failed to return clients' phone calls. In his answers, respondent stated that he "neither admitted nor denied" the allegations but instead demanded strict proof thereof. Applying ARDC Rule 233, the Hearing Board treated these factual allegations as if respondent had admitted them. The admissions then became part of the factual basis for the Hearing Board's conclusion that respondent violated Professional Conduct Rule 1.4(a) (134 Ill. 2d R. 1.4(a)) with respect to the six clients.

Proceedings before the Hearing Board are conducted in accord with the Code of Civil Procedure, our Supreme Court rules, and by the ARDC rules. (134 Ill. 2d R. 753(c)(5).) ARDC Rule 233 states:

"Rule 233. Answer to be Specific

The answer shall specifically admit or deny each allegation of the complaint. Every allegation not specifically denied is deemed admitted unless the answer states the reason the respondent is unable to make a specific denial." (Dis. Com. R. 233 (eff. April 19, 1985).)

ARDC Rule 236 states:

"Rule 236. Failure to Answer

When the respondent fails to answer or otherwise plead to the complaint, as required by Rules 231 through 233, upon motion of the Administrator and notice to the respondent, all factual allegations and disciplinary charges shall be deemed admitted, and no further proof shall be required. A respondent who has failed to answer timely or otherwise plead may seek leave of the hearing panel to vacate an order of default and file an answer upon a showing that his failure to answer or otherwise plead was a result of mistake, inadvertence, surprise or excusable neglect." Dis. Com. R. 236 (eff. October 21, 1988).

Respondent contends that the Hearing Board may only admit a factual allegation under ARDC Rule 233 in conjunction with the motion and notice requirements set forth in ARDC Rule 236. We conclude that the Hearing Board properly applied Disciplinary Rule 233.

Rule 233 is the Disciplinary Commission equivalent of section 2-610(b) of the Code of Civil Procedure, which provides that "every allegation *** not explicitly denied is admitted." (735 ILCS 5/2-610(b) (West 1992).) Section 2-610(b) also states that a party who alleges a lack of knowledge with respect to an allegation must attach an affidavit of truthfulness. (735 ILCS 5/2-610(b) (West 1992).) Unlike its Code of Civil Procedure ecounterpart, Rule 233 does not require a respondent to attach an affidavit of truthfulness in support of a response that asserts a lack of knowledge to a specific factual allegation. Rule 233 only requires that a respondent state the reason why he is "unable to make a specific denial." Respondent did not state any reason that would explain why he was unable to specifically deny the allegations that he did not return client telephone calls. Because respondent failed to either specifically admit or deny these factual allegations, and respondent failed to state a reason why he was unable to specifically admit or deny the allegations, the Hearing Board properly deemed admitted, under Rule 233, the allegations that respondent had failed to return client telephone calls.

Respondent claims that ARDC Rules 233 and 236 are vague if both rules are not read in conjunction with each other. Respondent's argument ignores the plain language of the rules. Although Rule 236 refers to Rule 233, the independent purposes of Rule 233 and Rule 236 are apparent. Rule 233 establishes the criteria for a sufficient response in an answer to an individual allegation contained in an Administrator's complaint. In contrast, Rule 236 addresses the circumstances where a respondent fails to file any answer at all to the Administrator's complaint. The motion and notice provisions of Rule 236 are designed to protect those respondents who fail to answer due to "mistake, inadvertence, surprise or excusable neglect," not those respondents who answer a complaintbut whose responses to specific allegations are insufficient. Given these distinctions, Rules 233 and 236 are not vague in the manner suggested by the respondent.

II

Even assuming arguendo that the Hearing Board should not have deemed admitted the Administrator's allegations that respondent failed to communicate with his clients, we find from the record that there was ample evidence to demonstrate that respondent did, in fact, fail to maintain proper communication with his clients.

Respondent's representation of Bessie Hartzfield was illustrative of his mishandling of clients' legal matters. Briefly restated here for the purpose of analysis, Bessie Hartzfield testified that she retained respondent to represent her in a dissolution of marriage action against her husband in July 1990. She paid all fees owed to him by April 1991. However, respondent did not file a petition for dissolution of marriage until 10 weeks later, in June 1991. (Hartzfield v. Hartzfield (Cir. Ct. Cook Co.), No. 91-D09692.) Respondent also filed a summons for Hartzfield's husband with the sheriff's office. Although the summons was returned four days later because Hartzfield had given respondent the wrong address for her husband, respondent did not so notify Hartzfield for three months, until September 1991. Hartzfield testified that she telephoned respondent on numerous occasions throughout the spring and summer, but he never returned her call until sometime in September 1991. At some point during 1992, Hartzfield gave respondent another address for her husband. However, service at the new address was also unsuccessful. Seven months after this second, unsuccessful attempt at service, respondent sent Hartzfield a letter requesting additional funds for service ...


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