Stone, In re

• Citation: 486 N.E.2d 915,93 Ill.Dec. 382,109 Ill.2d 253
• Decision Date: 21 November 1985
• Docket Number: No. 61625,61625
• Parties: , 93 Ill.Dec. 382 In re Lary Gordon STONE, Attorney, Respondent.
• Court: Supreme Court of Illinois

Page 915

486 N.E.2d 915

109 Ill.2d 253, 93 Ill.Dec. 382

In re Lary Gordon STONE, Attorney, Respondent.

No. 61625.

Supreme Court of Illinois.

Nov. 21, 1985.

George B. Collins, Collins & Uscian, Chicago, for respondent.

James J. Grogan, Atty. Registration and Disciplinary Com'n, Chicago, for administrator.

RYAN, Justice:

Respondent, Lary Stone, was admitted to practice in this State on May 22, 1962. In April 1984, the Administrator of the Attorney Registration and Disciplinary Commission filed a five-count complaint charging respondent with misconduct tending to bring the legal profession into disrepute. All of the conduct at issue took place between January 1981 and June 1982. The Hearing Board found that respondent neglected to complete two adoption proceedings, failed to deposit client funds into a separate, identifiable trust account, engaged in conduct involving fraud, deceit, and misrepresentation, and failed to carry out a contract of employment to the detriment of his client. Based upon its findings, the Hearing Board recommended respondent be suspended from the practice of law for a period of one year. Respondent filed exceptions with the Review Board which, after full consideration and review of the record, affirmed the Hearing Board's recommendation. Respondent then filed exceptions in this court pursuant to Rule 753(e)(5) (94 Ill.2d R. 753(e)(5)).

Count I of the Administrator's complaint concerned respondent's handling of an adoption for Alan and Pamela Witt in May 1981. Uncontradicted testimony showed respondent informed the Witts that the adoption would cost approximately $4,000, including attorney fees of between $750 and $1,000. The Witts agreed to pay respondent's fees plus whatever costs would arise, and he initiated the adoption proceeding on their behalf.

On or about June 9, 1981, Alan Witt issued a check for $4,000 to respondent, who cashed it at a branch of the Witts' bank the same day. Respondent testified that he took the cash, placed it in an envelope, placed the envelope either in his pocket or his briefcase, and left the bank. He further testified that either that same day or the next he obtained two cashier's checks from another bank, totaling $1,318. These checks were used to pay pediatrician and obstetrician fees involved in the adoption. The balance of the proceeds of the Witts' check, $2,682, was to be used to pay the baby's hospital bill and respondent's fee. Respondent placed this balance inside the pocket of an old suit in a closet in his apartment.

The night before he and the Witts were to go to the hospital to pick up the baby, respondent discovered that the cash was no longer in his apartment. Respondent testified before the Hearing Board that other items of personal property and the woman he had been living with disappeared on this same evening. Respondent did not report the incident to the police.

The next day respondent went with the Witts to the hospital to pick up the child. Respondent testified that he had guaranteed payment of the hospital bill and that he believed unless it received payment, the hospital would not release the baby. Since he no longer had the cash, respondent issued a personal check to the hospital for $1,921.05 so that the Witts could take custody of the child. Respondent knew that his account contained insufficient funds to cover this check.

Approximately one week later, respondent received notice from his bank that the check would not be honored. Two weeks after issuing it, respondent was informed by the hospital that the check had been returned for insufficient funds. Representatives of the hospital made several unsuccessful attempts to collect the $1,921.05 from the respondent. More than a year later, after the filing of the complaint with the Attorney Registration and Disciplinary Commission concerning his handling of the Witt adoption, respondent paid the hospital the full amount of the bill.

Respondent admitted he never obtained a final decree and that he did not refer the Witt adoption to another attorney for completion. In 1982, without respondent's assistance, the guardian ad litem appointed for the child obtained a final decree of adoption for the Witts. The guardian filed charges with the Commission concerning respondent's conduct.

Count II of the complaint concerned respondent's conduct in a second adoption case. The Hearing Board record showed that Ralph and Delores Rivera had adopted a child early in 1980. Early in 1981, they were informed that the natural sibling of their first child had been born and was available for adoption. The Riveras discovered that the social welfare agency that handled their adoption in 1980 refused to cooperate in a second adoption. They then retained respondent to secure the adoption of the sibling.

After the Riveras paid respondent $1,492 to cover costs and his attorney fees, respondent filed the adoption petition and successfully arranged for the adoption of the child. He submitted a final decree of adoption but was informed that the identity of the child's putative father had been discovered. The judge ordered respondent to republish notice of the adoption proceeding including the name of the putative father. Respondent republished the notice but took no further action to complete the adoption.

The Riveras made repeated but unsuccessful attempts to contact respondent to inquire about the status of the adoption. Eventually, they retained another attorney who completed the adoption for them. As a result, the Riveras incurred additional costs and lawyers' fees. The Riveras' second counsel filed charges with the Attorney Registration and Disciplinary Commission concerning respondent's handling of the Riveras' case on June 15, 1982. After the complaint was filed, respondent reimbursed the Riveras for their extra costs and fees.

Counts III and IV of the complaint involved respondent's issuance of two paychecks to Mary Martin, his secretary. Count III concerned a check issued on April 3, 1981, and Count IV concerned Martin's paycheck of April 14, 1981. At the time in question, respondent had only one checking account which he used for both business and personal expenses. It was his practice to compensate his secretary by check every two weeks.

Testimony before the Hearing Board showed that prior to April 1981 respondent had borrowed $5,000 from his bank using stock certificates as collateral. On March 28, 1981, respondent received a telegram asking him to contact the executive vice-president of the bank immediately in regards to his checking account. He met with the bank official within the ensuing week and was informed that the collateral the bank held was insufficient to cover the loan. Respondent was given one day to provide additional collateral. When he was unable to provide any additional security, the bank froze the funds in this checking account. As a result, neither of the two checks written to Martin was honored.

After numerous attempts to contact respondent by telephone, Martin retained an attorney to assist in the collection of the amount due her. In late May 1981, Martin filed a complaint against respondent with the Attorney Registration and Disciplinary Commission. On June 1, 1982, respondent paid Martin $701.25 and obtained a release from all liability arising from the issuance of the two checks.

Count V of the Administrator's complaint concerned respondent's reply to the charges filed by Mary Martin. A copy of the charge was forwarded to him for a written reply. In a letter dated September 17, 1981, respondent explained that Martin's paychecks had not been honored because his checking account had been frozen by the bank. He went on to say that "the matter has been rectified and that account is now in good order." Respondent knew at the time he wrote the letter that the account in question had been closed in August 1981.

The Hearing Board concluded that respondent's conduct in failing to complete both the Witt and Rivera adoptions constituted neglect of a legal matter entrusted to him in violation of Rule 6-101(a)(3) of the Code of Professional Responsibility (87 Ill.2d R. 6-101(a)(3)).

In regard to the Witt adoption, the Hearing Board concluded that while respondent did not act with an evil motive to convert the funds, he violated Rule 9-102(a) of the Code by failing to deposit the proceeds of the Witts' check in a trust bank account (87 Ill.2d R. 9-102(a)). It was further concluded that respondent's issuance of the check to the hospital was conduct involving fraud, deceit, misrepresentation and moral turpitude in violation of Rule 1-102(a) (87 Ill.2d R. 1-102(a)). In regard to the Rivera adoption, the Hearing Board concluded that respondent's failure to complete the adoption was conduct prejudicial to the administration of justice in violation of Rule 1-102(a)(5), that he failed to carry out a contract of employment in violation of Rule 7-101(a)(2), and that his clients were thereby damaged in violation of Rule 7-101(a)(3) of the Code of Professional Responsibility. (87 Ill.2d Rules 7-101(a)(2), 7-101(a)(3), 1-102(a)(5).) The Board also concluded that respondent knew or should have known that his checking account was frozen at the time that he issued the checks involved in counts III and IV, and that therefore his action constituted conduct involving dishonesty, fraud, deceit and misrepresentation, and conduct involving moral turpitude in violation of Rules 1-102(a)(3) and (a)(4). (87 Ill.2d Rules 1-102(a)(3), 1-102(a)(4).) Finally, the Hearing Board concluded that the Administrator had failed to prove by clear and convincing evidence that respondent's conduct in responding to the Commission's inquiry constituted a violation of the Code of Professional Responsibility.

We concur with the Hearing Board's findings of facts and conclusions as to the violations embodied in respondent's conduct.

There is only one issue presented by the facts in this case: What...