Post by Lorie Taylor on May 13, 2008 23:55:12 GMT -6
Filed April 11, 1994
BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION
In the Matter of:
JOHN PAUL CARROLL,
Commission No. 90 CH 248
Attorney-Respondent,
No. 00401579.
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes before the Review Board on the Report and Recommendation of the Hearing Board which found that Respondent violated certain rules of the Code of Professional Responsibility. Specifically, Respondent's misconduct consisted of a federal conviction for willfully filing false income tax returns; advancing financial assistance to a client in violation of Rule 5-103(b); and failing to account to a client for amounts received in violation of Rule 9-102(c). The Hearing Board recommended an eighteen-month suspension and determined that the suspension be deemed served by the Respondent's prior suspension pursuant to federal court order.
BACKGROUND
The Administrator filed a two-count complaint against the Respondent on April 26, 1990. Subsequently, the complaint was amended to include eight additional counts. In its Report and Recommendation, the Hearing Board found that the Administrator had proven the charges set forth in Counts I, II and VI by clear and convincing evidence. At issue before us is the discipline recommended by the Hearing Board for the misconduct charged in those three counts.
Count I of the complaint alleged that Respondent was indicted and found guilty of filing false income tax returns for the years 1982 -1984. He was sentenced by the
PAGE 2:
federal court to sixty days in prison and probation for a period of three years. Further, the court prohibited Respondent from practicing law during his probation and ordered him to perform 500 hours of community service. By his conviction and the acts giving rise to his conviction, Respondent was alleged to have committed illegal conduct involving moral turpitude in violation of Rule 1-102(a)(3) and conduct prejudicial to the administration of justice in violation of Rule 1-102(a)(5).
Count II of the complaint charged that Respondent paid his client Paul Wickman, a plaintiff in a personal injury case, $1,000 in cash and requested Wickman to sign a receipt stating that the money was an advance for medical bills. According to Count II, Respondent's action constituted an advancement of financial assistance to his client in violation of Rule 5-103(b) of the Code of Professional Responsibility and conduct that is prejudicial to the administration of justice in violation of Rule 1-102(a)(5).
In Count VI, the Administrator alleged that Respondent failed to render a proper accounting to his client Phillip Czmiel. Respondent had been retained by Czmiel to handle, among other matters, the estate of Czmiel's father which contained assets in excess of $272,000. Allegedly, Respondent made certain disbursements from the estate funds but failed to maintain complete records as to the amount and/or purpose of the disbursements. At no time did Respondent provide an accounting to Czmiel setting forth any and all amounts received and/or the application of Respondent's fee agreement. The foregoing conduct was alleged to violate Rules 2-106(c)(3) and 9-102(c)(3) of the Code of Professional Responsibility.
The Hearing panel, comprised of James M. Murray, Lon M. Richey and Michael R. Albert, heard ten witnesses and considered 67 exhibits over a period of four days. The Administrator's case included testimony by Respondent, Wickman and Czmiel as well as numerous exhibits detailing Respondent's conviction for failure to file income
PAGE 3:
tax returns and his representation of Wickman and Czmiel. Respondent's witnesses included himself, two witnesses who testified to their impressions and encounters with Phillip Czmiel and two additional witnesses who testified to Respondent's volunteer work and his reputation for honesty and integrity.
Respondent testified that he was found guilty of three counts of willfully filing false income tax returns and, as a consequence, was sentenced to sixty days imprisonment and three years of probation. The federal judge ordered Respondent to cease practicing law during his probation, ordered him to perform 500 hours of community service, to pay a special assessment and fine and to abide by all requirements regarding the filing and payment of all income taxes and penalties. Respondent testified that beginning in June 1990, pursuant to the federal sentencing order, he did not practice law in any manner. After four months, Respondent successfully requested that the order be modified so that he could serve the community service aspect of his sentence by practicing law as a volunteer for Chicago Volunteer Legal Services. In February 1992, upon Respondent's motion, the federal judge eliminated the restrictions on Respondent's ability to practice law.
Respondent also testified to his meetings and conversations with Paul Wickman. Respondent stated that he advanced $1,000 to Wickman for a medical examination and for special medical shoes. Respondent admitted that he did not review any medical reports or bills before giving Wickman the money. Wickman testified that he decided to hire Respondent as his attorney because he received $1,000 in cash from Respondent.
As to his client Phillip Czmiel, Respondent claimed that he periodically informed Czmiel of disbursements made from his client account but admitted that the one written document which contained a breakdown of disbursements did not reflect any amount claimed as Respondent's fees. Moreover, Respondent could not state the
PAGE 4:
exact amount of his total fee. Czmiel testified that he had no idea what Respondent charged him for the various legal matters that were handled by Respondent.
The Executive Director of the Chicago Volunteer Legal Services, Mary Lee Witte, testified that Respondent has handled approximately 100 cases for that organization, including a death penalty case and other high profile cases. Respondent estimated that, in addition to the 600 hours he was required to work to fulfill his community service sentence, he volunteered an additional 600 hours of his time to Chicago Volunteer Legal Services. Witte stated that she trusted Respondent completely and a witness from the Chicago Police Department testified that Respondent's reputation for truth and honesty was very good.
After reviewing the evidence, the Hearing Board found that Respondent's conviction in and of itself warranted discipline and, in addition, Respondent advanced $1,000 to a client in violation of Rule 5-103(b) and failed to provide an accounting to Czmiel in violation of Rule 9-102. The Board pointed out that Respondent was suspended in the federal courts for twenty-four months and made no money from the practice of law during that time. In consideration of the foregoing, the Board recommended an eighteen-month suspension with credit given for time served under the suspension order of the United States District Court.
The Administrator filed exceptions to the Report and Recommendation stating that the Board erred in recommending that credit be given Respondent for the time he was under the suspension order of the United States District Court. Respondent filed no exceptions.
ANALYSIS
Although the only issue raised by exception is whether Respondent should be credited with the time he was suspended from his normal practice of law pursuant to an order of the federal court, Respondent also discusses the propriety of any
PAGE 5:
suspension imposed upon him. Although Respondent states that the "discipline ordered is supported by the record" and "the discipline is sufficient," he views the suspension and the credit as inseparable elements of the recommended discipline. Without such credit, Respondent objects to the imposition of an eighteen-month suspension.
To the extent that Respondent has raised the issue that an eighteen month suspension is inappropriate, we will consider the question in two parts: a) whether the Administrator proved the violations charged in Counts I, II, and VI of the complaint by clear and convincing evidence, and b) whether eighteen months is an appropriate period of suspension for the particular misconduct at issue here. We will then address the propriety of modifying a recommended period of suspension by giving credit for a past suspension.
BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION
In the Matter of:
JOHN PAUL CARROLL,
Commission No. 90 CH 248
Attorney-Respondent,
No. 00401579.
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes before the Review Board on the Report and Recommendation of the Hearing Board which found that Respondent violated certain rules of the Code of Professional Responsibility. Specifically, Respondent's misconduct consisted of a federal conviction for willfully filing false income tax returns; advancing financial assistance to a client in violation of Rule 5-103(b); and failing to account to a client for amounts received in violation of Rule 9-102(c). The Hearing Board recommended an eighteen-month suspension and determined that the suspension be deemed served by the Respondent's prior suspension pursuant to federal court order.
BACKGROUND
The Administrator filed a two-count complaint against the Respondent on April 26, 1990. Subsequently, the complaint was amended to include eight additional counts. In its Report and Recommendation, the Hearing Board found that the Administrator had proven the charges set forth in Counts I, II and VI by clear and convincing evidence. At issue before us is the discipline recommended by the Hearing Board for the misconduct charged in those three counts.
Count I of the complaint alleged that Respondent was indicted and found guilty of filing false income tax returns for the years 1982 -1984. He was sentenced by the
PAGE 2:
federal court to sixty days in prison and probation for a period of three years. Further, the court prohibited Respondent from practicing law during his probation and ordered him to perform 500 hours of community service. By his conviction and the acts giving rise to his conviction, Respondent was alleged to have committed illegal conduct involving moral turpitude in violation of Rule 1-102(a)(3) and conduct prejudicial to the administration of justice in violation of Rule 1-102(a)(5).
Count II of the complaint charged that Respondent paid his client Paul Wickman, a plaintiff in a personal injury case, $1,000 in cash and requested Wickman to sign a receipt stating that the money was an advance for medical bills. According to Count II, Respondent's action constituted an advancement of financial assistance to his client in violation of Rule 5-103(b) of the Code of Professional Responsibility and conduct that is prejudicial to the administration of justice in violation of Rule 1-102(a)(5).
In Count VI, the Administrator alleged that Respondent failed to render a proper accounting to his client Phillip Czmiel. Respondent had been retained by Czmiel to handle, among other matters, the estate of Czmiel's father which contained assets in excess of $272,000. Allegedly, Respondent made certain disbursements from the estate funds but failed to maintain complete records as to the amount and/or purpose of the disbursements. At no time did Respondent provide an accounting to Czmiel setting forth any and all amounts received and/or the application of Respondent's fee agreement. The foregoing conduct was alleged to violate Rules 2-106(c)(3) and 9-102(c)(3) of the Code of Professional Responsibility.
The Hearing panel, comprised of James M. Murray, Lon M. Richey and Michael R. Albert, heard ten witnesses and considered 67 exhibits over a period of four days. The Administrator's case included testimony by Respondent, Wickman and Czmiel as well as numerous exhibits detailing Respondent's conviction for failure to file income
PAGE 3:
tax returns and his representation of Wickman and Czmiel. Respondent's witnesses included himself, two witnesses who testified to their impressions and encounters with Phillip Czmiel and two additional witnesses who testified to Respondent's volunteer work and his reputation for honesty and integrity.
Respondent testified that he was found guilty of three counts of willfully filing false income tax returns and, as a consequence, was sentenced to sixty days imprisonment and three years of probation. The federal judge ordered Respondent to cease practicing law during his probation, ordered him to perform 500 hours of community service, to pay a special assessment and fine and to abide by all requirements regarding the filing and payment of all income taxes and penalties. Respondent testified that beginning in June 1990, pursuant to the federal sentencing order, he did not practice law in any manner. After four months, Respondent successfully requested that the order be modified so that he could serve the community service aspect of his sentence by practicing law as a volunteer for Chicago Volunteer Legal Services. In February 1992, upon Respondent's motion, the federal judge eliminated the restrictions on Respondent's ability to practice law.
Respondent also testified to his meetings and conversations with Paul Wickman. Respondent stated that he advanced $1,000 to Wickman for a medical examination and for special medical shoes. Respondent admitted that he did not review any medical reports or bills before giving Wickman the money. Wickman testified that he decided to hire Respondent as his attorney because he received $1,000 in cash from Respondent.
As to his client Phillip Czmiel, Respondent claimed that he periodically informed Czmiel of disbursements made from his client account but admitted that the one written document which contained a breakdown of disbursements did not reflect any amount claimed as Respondent's fees. Moreover, Respondent could not state the
PAGE 4:
exact amount of his total fee. Czmiel testified that he had no idea what Respondent charged him for the various legal matters that were handled by Respondent.
The Executive Director of the Chicago Volunteer Legal Services, Mary Lee Witte, testified that Respondent has handled approximately 100 cases for that organization, including a death penalty case and other high profile cases. Respondent estimated that, in addition to the 600 hours he was required to work to fulfill his community service sentence, he volunteered an additional 600 hours of his time to Chicago Volunteer Legal Services. Witte stated that she trusted Respondent completely and a witness from the Chicago Police Department testified that Respondent's reputation for truth and honesty was very good.
After reviewing the evidence, the Hearing Board found that Respondent's conviction in and of itself warranted discipline and, in addition, Respondent advanced $1,000 to a client in violation of Rule 5-103(b) and failed to provide an accounting to Czmiel in violation of Rule 9-102. The Board pointed out that Respondent was suspended in the federal courts for twenty-four months and made no money from the practice of law during that time. In consideration of the foregoing, the Board recommended an eighteen-month suspension with credit given for time served under the suspension order of the United States District Court.
The Administrator filed exceptions to the Report and Recommendation stating that the Board erred in recommending that credit be given Respondent for the time he was under the suspension order of the United States District Court. Respondent filed no exceptions.
ANALYSIS
Although the only issue raised by exception is whether Respondent should be credited with the time he was suspended from his normal practice of law pursuant to an order of the federal court, Respondent also discusses the propriety of any
PAGE 5:
suspension imposed upon him. Although Respondent states that the "discipline ordered is supported by the record" and "the discipline is sufficient," he views the suspension and the credit as inseparable elements of the recommended discipline. Without such credit, Respondent objects to the imposition of an eighteen-month suspension.
To the extent that Respondent has raised the issue that an eighteen month suspension is inappropriate, we will consider the question in two parts: a) whether the Administrator proved the violations charged in Counts I, II, and VI of the complaint by clear and convincing evidence, and b) whether eighteen months is an appropriate period of suspension for the particular misconduct at issue here. We will then address the propriety of modifying a recommended period of suspension by giving credit for a past suspension.
why killer murdered of Kathleen and Stacey An Cales Peterson