In Re Smith

659 N.E.2d 896, 168 Ill. 2d 269, 213 Ill. Dec. 550, 1995 Ill. LEXIS 208
CourtIllinois Supreme Court
DecidedNovember 22, 1995
Docket78479
StatusPublished
Cited by32 cases

This text of 659 N.E.2d 896 (In Re Smith) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Smith, 659 N.E.2d 896, 168 Ill. 2d 269, 213 Ill. Dec. 550, 1995 Ill. LEXIS 208 (Ill. 1995).

Opinion

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 time when 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 six counts 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

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Cite This Page — Counsel Stack

Bluebook (online)
659 N.E.2d 896, 168 Ill. 2d 269, 213 Ill. Dec. 550, 1995 Ill. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-smith-ill-1995.