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In re Ingersoll

March 18, 1999


The opinion of the court was delivered by: Justice Miller

Agenda 7-November 1998.

The present case consolidates two separate disciplinary actions brought by the Administrator of the Attorney Registration and Disciplinary Commission against the respondent, Chase Ingersoll. In the first proceeding, the Hearing Board found that respondent participated in filing a false document in court, commingled personal funds with client funds, and betrayed the confidences of a client. The Hearing Board recommended that respondent be suspended from the practice of law for three years and until further order of the court. The Review Board affirmed the Hearing Board's findings and recommended the same sanction. In the second proceeding, the Hearing Board found that respondent filed two false documents in court. The Hearing Board believed that this misconduct alone would warrant a one-year suspension; considering the instances of misconduct committed by respondent in both matters, the Board recommended his disbarrment. On the Administrator's motion, we ordered the second disciplinary matter transferred to this court and consolidated with the first one, bypassing the Review Board. Respondent has filed exceptions to the findings and recommendations in the two actions. The Administrator requests that respondent be disbarred. For the reasons stated below, we agree with the Administrator that disbarrment is the appropriate sanction.

Respondent was graduated from law school in May 1994 and was admitted to the Illinois bar in November 1994. The Administrator filed a three-count complaint, designated 96 SH 358, against respondent on March 28, 1996. The Administrator later amended the complaint on June 11, 1996, by alleging an additional charge of misconduct. The Administrator initiated a separate proceeding against respondent, No. 97 SH 84, by filing a one- count complaint on August 21, 1997. Before this court, respondent challenges the sufficiency of the evidence of his misconduct on two of the charges in the initial proceeding; he does not now contest the charge of misconduct involved in the second proceeding. In addition, respondent disputes the Administrator's recommendation that he be disbarred for his misconduct. We will consider the relevant allegations, evidence, and findings in the sequence in which the misconduct was charged. We will then consider what sanction should be imposed on respondent.

The first charge of misconduct in 96 SH 358 involved respondent's representation of a client, Paul Flexner, in a slander suit by Flexner against his employer, Bradley University; Flexner was a professor in the Bradley art department. The charges concerned respondent's role in the preparation and filing of a pauper's affidavit Flexner filed in circuit court in connection with the slander suit. The form, entitled "Application to Sue or Defend as a Poor Person," sought information on the applicant's financial standing. Question 4, regarding real and personal property, stated, "Applicant owns (A) no real estate except: (Location and Value)," and was followed by a blank line on which the applicant could provide information regarding his interests in real estate. Flexner's application did not contain any answer for question 4A. Flexner, however, owned a home in Morton, where he lived with his wife and three sons.

At the hearing, Flexner testified that he and respondent had prepared the form together. Flexner testified that he and respondent discussed the question regarding real estate, that he told respondent that he had about $30,000 to $35,000 in equity in his home, and that he owed about $88,000 on it. Flexner also said that he would have told someone inquiring about his residence that the bank owned the house and that he might own it after the passage of some 20 years. Flexner stated affirmatively, however, that respondent knew that Flexner owned a house and was making payments on it.

Respondent has provided two different explanations in these proceedings regarding his role in preparing and filing the pauper's affidavit. One version of events is found in a statement he sent the Administrator while the matter was under investigation. In a letter dated November 22, 1995, respondent said:

"I drafted the complaint for Flexner, but Flexner did not have the money to front the filing fees. I took his statements at face value and told him to fill [sic] go to the courthouse and file for pauper's status. He went and did that, returned the paperwork to me. I filed the case." Respondent related a different recollection in his testimony before the Hearing Board-one that was at variance both with his earlier letter to the Administrator and with Flexner's own testimony. According to respondent, he "may have" sent Flexner to the county courthouse to file the complaint, and Flexner "may have" come back and explained that he did not have enough money to pay the filing fee. Respondent said that he and Flexner then returned to the courthouse so that the client could submit a pauper's affidavit. Respondent filled out the affidavit, relying either on information he already knew about Flexner or on answers provided by Flexner to questions on the affidavit. Respondent then signed the affidavit as Flexner's lawyer. Regarding question 4A, real estate, respondent could not remember asking Flexner about this subject. Respondent stated that he did not then know that Flexner owned a home."

With respect to this portion of the complaint, the Hearing Board, in its written order, found that respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4) of the Rules of Professional Conduct (134 Ill. 2d R. 8.4(a)(4)); made a statement of material fact or law to a tribunal that he knew or reasonably should have known was false, in violation of Rule 3.3(a)(1) (134 Ill. 2d R. 3.3(a)(1)); offered evidence that he knew to be false and failed to take reasonable remedial measures to correct it, in violation of Rule 3.3(a)(4) (134 Ill. 2d R. 3.3(a)(4)); made a false statement of fact or law that he knew or reasonably should have known was false, in violation of Rule 4.1(a) (134 Ill. 2d R. 4.1(a)); and engaged in conduct that tended to defeat the administration of Justice or bring the courts or the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 771 (134 Ill. 2d Rs. 8.4(a)(5), 771). The Review Board affirmed the Hearing Board's findings. Also, the Review Board declined to consider an affidavit signed by Flexner and submitted by respondent. The affidavit contradicted Flexner's own testimony at the hearing, and stated that he did not discuss the exact value of the property with respondent. The Review Board noted that the affidavit was not part of the record developed before the hearing panel and therefore believed that consideration of the document would be improper. In addition, the Review Board noted the heavy presumption against recanted testimony in criminal proceedings and thought that a similar presumption should apply in these circumstances.

The Administrator must establish charges of lawyer misconduct by clear and convincing evidence. In re Witt, 145 Ill. 2d 380, 389 (1991); In re Kitsos, 127 Ill. 2d 1, 7-8 (1989); 134 Ill. 2d R. 753(c)(6). Respondent contends here that the Administrator failed to establish count I, relating to the representation of Flexner, and challenges the Hearing Board's finding that he took part in the submission of a false affidavit. Respondent disputes the finding below that he knew about Flexner's home, yet chose to advise Flexner to omit any reference to his interest in the property from the pauper's affidavit. Respondent contends that when the form was filled out he was ignorant of Flexner's interest in the residence.

Factual findings by the Hearing Board are entitled to great deference. In re Rinella, 175 Ill. 2d 504, 517 (1997). As this court explained in In re Timpone, 157 Ill. 2d 178, 196 (1993):

"This Court has noted that the Hearing Board is in a superior position to resolve factual disputes. The Hearing Board's findings regarding the credibility of witnesses, the resolution of conflicting testimony, and any other fact-finding judgments are entitled to great deference. [Citation.] This is due to the fact that the Hearing Board is able to observe the witnesses' demeanor and Judge their credibility. [Citation.] Thus, the Hearing Board's factual determinations will generally not be disturbed unless they are against the manifest weight of the evidence." In accordance with Timpone, we see no reason here to disturb the Board's Conclusion that respondent was aware of Flexner's interest in the property and that respondent falsely represented that Flexner did not own any real estate. Respondent provided the Administrator with two different accounts of his role in the preparation and filing of the false affidavit. In a letter to the Administrator while the matter was under investigation, respondent denied taking part in filling out the form. Later, however, in testimony before the Hearing Board, respondent admitted that he filled out the form. Even then, however, respondent denied having any knowledge of Flexner's ownership interest in a house.

Respondent's testimony was contradicted on this point by Flexner, who maintained that respondent was aware of his residence and ownership interest in it. On this record, the Hearing Board was entitled to credit Flexner's testimony and to reject respondent's exculpatory testimony. As we have noted, the Hearing Board stands in a superior position to Judge credibility and to make findings of fact. For these reasons, we conclude that the Administrator established by clear and convincing evidence the charges of misconduct found by the hearing panel.

Like the Review Board, we also decline to consider Flexner's subsequent affidavit, which contains assertions that contradict that witness' testimony before the Hearing Board. Respondent prepared and notarized the affidavit and submitted it several weeks after the Hearing Board had issued its report and decision in the first proceeding, 96 SH 358. As the Administrator observes, respondent did not seek to have the matter returned to the Hearing Board so that it could consider Flexner's affidavit, though respondent now insists that due process requires that he be given an opportunity to present this new evidence. In any event, we note that Flexner in his affidavit states that he did not discuss with respondent the exact value of the property. Even if this is true, Flexner still had an interest in the residence, and respondent knew or should have known of that.

We turn next to counts II and III of the administrator's amended complaint in 96 SH 358, which charge respondent with commingling. The respondent does not contest the Hearing Board's findings on these counts, and therefore only a brief recitation of the evidence is necessary here. Prior to the commencement of proceedings before the Hearing Board, the parties entered into a stipulation regarding the allegations contained in counts II and III. According to the stipulation, respondent maintained two client trust accounts at two different banks. On five occasions from July 13, 1995, to October 4, 1995, respondent deposited personal funds into the accounts. The amounts involved totaled less than $2,000. At the hearing, respondent testified that he understood that he had violated the disciplinary rules in the ways in which he maintained the accounts and handled the funds, but he insisted that his violations were merely technical and that his conduct was not unethical. The Hearing Board concluded in its written opinion that respondent failed to safeguard and hold client funds separate from his personal funds and in a separate and identifiable account, in violation of Rule 1.15(a) of the Rules of Professional Conduct (134 Ill. 2d R. 1.15(a)); failed to maintained complete records of client trust account funds, in violation of Rule 1.5(a) and Supreme Court Rule 769(2) (134 Ill. 2d Rs. 1.5(a), 769(2)); and engaged in conduct that tended to defeat the administration of Justice or bring the courts ...

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