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In re Timpone

January 23, 2004

[5] IN RE LEONARD THOMAS TIMPONE, ATTORNEY, RESPONDENT.


[6] The opinion of the court was delivered by: Justice Freeman

[7]  Docket No. 93178-Agenda 22-September 2002.

[8]  Respondent, Leonard Thomas Timpone, was charged with various violations of the Rules of Professional Conduct (Rules) (134 Ill. 2d R. 1.1 et seq.) in a three-count complaint filed by the Administrator of the Attorney Registration and Disciplinary Commission (ARDC). The Hearing Board found that the Administrator established that respondent:

[9]  (1) entered into a business transaction with a client without making proper disclosures; (2) converted and commingled funds belonging to another client; and (3) engaged in conduct involving fraud, dishonesty, deceit or misrepresentation. The Hearing Board recommended disbarrment as a sanction. The Review Board affirmed those findings and rejected respondent's plea for a lesser sanction. The matter is now before this court on respondent's exceptions to the findings and conclusions of the Review Board.

[10]   I. BACKGROUND

[11]   Respondent has been licensed to practice law since 1970. In 1993, we suspended him for three years. See In re Timpone, 157 Ill. 2d 178 (1993). The charges in the matter before us now are based on transactions involving two clients, Richard Rzewnicki and Fulton Purnell. We will discuss the facts relating to each client in turn.

[12]   A. The Rzewnicki Transactions

[13]   In count I of the complaint the Administrator alleged that respondent engaged in several ethical violations arising from a loan transaction between respondent and Rzewnicki. Among other things, the Administrator alleged that respondent: (1) engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation (134 Ill. 2d R. 8.4(a)(4)); (2) entered into a business transaction with a client without making proper disclosures where the lawyer and client have conflicting interests and the client expects the lawyer to exercise his professional judgment on the client's behalf (134 Ill. 2d R. 1.8); and (3) engaged in conduct "which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute" in violation of Supreme Court Rule 771 (134 Ill. 2d R. 771).

[14]   Respondent represented Rzewnicki in a dissolution of marriage proceeding from 1980 through 1983 and assisted him in the sale of his marital residence in 1987 and 1988. Respondent performed no further legal work for Rzewnicki until 1992, when he defended Rzewnicki on a DUI charge and a building code violation.

[15]   Approximately two months after the sale of the marital residence, Rzewnicki loaned respondent $35,000 from the proceeds of the sale. The loan was never repaid, and in January 1999, Rzewnicki obtained a default judgment against respondent. The judgment remains unsatisfied.

[16]   Rzewniki claimed that he loaned the money to respondent because he trusted respondent as "his lawyer," and because he was told he would receive a good return. However, in a pretrial deposition, Rzewniki described the services respondent performed for him in December of 1988 by testifying that he was an "ex-client" and that "[he] had nothing binding at that time."

[17]   Respondent argued before the Hearing Board that he and Rzewnicki did not have an attorney-client relationship at the time in question, and that the loan agreement arose out of their friendship rather than the relation of attorney and client. Therefore, although a debtor-creditor relationship existed with Rzewnicki, his receipt of the loan did not violate any of the provisions of the Rules. The Hearing Board disagreed.

[18]   Relying on the reasoning in In re Imming, 131 Ill. 2d 239 (1989), the Hearing Board found that respondent and Rzewnicki had an attorney-client relationship at the time of the loan. The Hearing Board also found that respondent violated his fiduciary duty to his client by, among other things: (1) failing to advise Rzewnicki that there were limits on the types of transactions an attorney could enter into with a client; (2) failing to advise him to consult independent counsel before making the loan; and (3) providing no collateral for the loan and giving Rzewnicki no promissory note evidencing the loan or the interest rate until five years after the transaction. The Review Board noted that respondent did not challenge any of the factual findings of the Hearing Board and affirmed all of those findings.

[19]   B. The Purnell Transactions

[20]   Counts II and III of the Administrator's complaint involve respondent's representation of Fulton Purnell and statements made to the ARDC regarding that representation. In count II, the Administrator alleged that respondent: (1) converted his client's funds; (2) failed to hold his client's property separate from his own (134 Ill. 2d R. 1.15(a)); and (3) failed to promptly deliver funds to a client (134 Ill. 2d R. 1.15(b)). In count III, the Administrator alleged that respondent: (1) made a statement of material fact known by the lawyer to be false in connection with a lawyer disciplinary matter (134 Ill. 2d R. 8.1(a)(1)); and (2) induced another to engage in conduct when the lawyer knows that the conduct will violate the Rules of Professional Conduct (134 Ill. 2d R. 8.4(a)(4)). Regarding both counts II and III, the Administrator alleged that respondent engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation, in violation of Rule 8.4(a)(4), and also engaged in conduct "which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute" in violation of Supreme Court Rule 771. The Hearing Board's findings on these allegations are not challenged by respondent.

[21]   Fulton Purnell engaged respondent to represent him in a proceeding to set aside a judgment-by-confession taken against him by Leo Hickman. He was referred to respondent by a mutual friend, John Jordan, who had been represented in the past by respondent.

[22]   According to respondent, he expended considerable time and effort in his attempt to set aside the Hickman judgment-by-confession. In September, 1998, respondent received a check for $23,448.94 made out to Purnell in settlement of the Hickman case. This check was deposited in respondent's client fees account on September 21, 1998. The check was endorsed, "Fulton Purnell Pay to Leonard Timpone." The handwriting was identified by respondent's associate, Gail Golub, as that of Gina Biers, respondent's secretary.

[23]   Respondent did not have a trust account at the time he deposited Purnell's check. He maintained a client fees account and an operating account at the same bank and money would be transferred from the fees account to the operating account as checks were written on the operating account. Respondent's firm did not have a client trust account until 1999.

[24]   Respondent testified that he, Jordan, and Purnell had a three-way telephone conversation in the early fall of 1998, at the time of a visit by Purnell to Jordan's home. According to respondent, Purnell authorized him to sign his name to the settlement check and deduct his fee. This account was confirmed by Jordan, but denied by Purnell. Purnell denied ever having a three-way telephone conversation with respondent and Jordan and denied authorizing respondent to sign his name to the check and deduct his fees.

[25]   In September 1998, Purnell received a letter from respondent enclosing a check for $10,742.19. The letter stated that he had received $23,448.94 in the Hickman matter and had deducted the balance of almost $12,000 in attorney fees.

[26]   Before Purnell cashed the $10,742.19 check from respondent, the balance in respondent's client fees account fell under $10,000 on at least three occasions. Respondent denied using Purnell's funds for his own purposes.

[27]   In early November 1998, respondent received a letter from the ARDC, requesting a response to allegations raised by Purnell as to the handling of the Hickman settlement check. At respondent's direction, Golub wrote to the Administrator's counsel on his behalf, stating, "As for Mr. Purnell's settlement of funds, the entirety of the settlement remains in our client trust account." On January 6, 1999, also at respondent's direction, Golub again wrote to the Administrator's counsel, advising, "As I stated in an earlier letter to your office, however, the entirety of the [Hickman settlement] check remains in our client fees account."

[28]   Based on this testimony, the Hearing Board found that respondent had converted Purnell's funds, as charged in the complaint. The Board, citing In re Clayter, 78 Ill. 2d 276, 282 (1980), noted that a conversion occurs any time an account holding funds on behalf of a client drops below the sums due the client, even if the drop in the balance happens inadvertently. The Hearing Board also found Purnell's testimony that he never gave respondent authority to negotiate the settlement check more credible than the version of events given by respondent. The Board similarly found that respondent failed to hold property of a client separate from his own property in violation of Rule 1.15(a).

[29]   The Hearing Board likewise found that respondent violated Rule 1.15(b) by failing to promptly deliver to Purnell funds that Purnell was entitled to receive. The Board found that he was not entitled to deduct those funds from the Hickman settlement proceeds without a fee agreement, regardless of whether he was still owed fees for the completed work. Without an agreement, respondent had engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation and conduct "which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute." 134 Ill. 2d R. 771. The Hearing Board also noted that, although respondent was censured in 1994 for failure to timely file a tax return, he had not yet filed a return for 1998.

[30]   As to count III, the Hearing Board found that the charged conduct had been proved because the two letters in response to the ARDC inquiry, prepared at the direction and with the approval of respondent, contained false statements known by him to be false. He did not have a client trust account, as stated in the first letter, and the "entirety" of Purnell's settlement check did not remain in his account, as stated in the second letter.

[31]   Respondent did not challenge any of these findings and conclusions in his exceptions to the Hearing Board's recommendations. The findings were, accordingly, affirmed by the Review Board. The Boards' findings as to the allegations in counts II and III are likewise not challenged in this court.

[32]   C. Evidence in Aggravation and Mitigation

[33]   The Hearing Board noted that respondent had been disciplined on two prior occasions. This court suspended him for three years in 1993 for misconduct including conversion and commingling of client funds, failing to maintain complete records of client funds, neglecting client cases, hiding assets from the court, and misrepresenting a matter to the ARDC. In re Timpone, 157 Ill. 2d 178 (1993). In 1994, he was censured for failure to timely file tax returns for the years 1984 through 1988. In re Timpone, M.R. 9862 (March 30, 1994). Relying on In re Levin, 101 Ill. 2d 535, 541-42 (1984), the Hearing Board considered the similarities between respondent's prior and current misconduct and the length of time between the prior and current acts.

[34]   The Hearing Board also considered in aggravation the fact that respondent never repaid the loan to Rzewnicki, despite the fact that he earned significant income in the years between the loan in 1988 and his suspension in 1993. Relying on In re Smith, 75 Ill. 2d 134, 142 (1979), the Hearing Board found respondent's lack of candor and remorse to be an aggravating factor. The Board noted that throughout the course of the ...


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