In the matter of:
JOEL ALAN BRODSKY,
Commission No. 01 CH 42
The hearing in this matter was held on November 14, 2001 at the offices of the Attorney Registration and Disciplinary Commission, Chicago, Illinois. Hearing panel members James A. Shapiro and Leonard J. Schrager were present. In the absence of the non-lawyer member of the panel, the parties stipulated to having the case heard and determined by a two-member panel. Sarah R. Masarachia represented the Administrator of the ARDC and Respondent was represented by Stuart P. Krauskopf.
COMPLAINT AND ANSWER
On May 8, 2001 the Administrator filed a one-count complaint against Respondent Joel Alan Brodsky alleging that he forged a signature on bank forms in order to withdraw client funds from the bank, falsely endorsed a cashier's check issued by the bank, failed to deposit the proceeds in a separate identifiable trust account and kept the funds for his own purposes. He was charged with the following misconduct:
failure to deposit and maintain client funds in a separate identifiable trust account in violation of Rule 1.15(a) and 1.15(d) of the Illinois Rules of Professional Conduct;
committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer by committing the
crime of forgery in violation of 720 ILCS 5/17-3 in violation of Rule 8.4(a)(3);
conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4);
conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 771.
In his answer to the complaint, Respondent admitted signing another person's name to bank forms and to a check but affirmatively stated that he believed his actions were necessary to protect and preserve the proceeds of an estate. He further admitted that he failed to deposit client money into a separate and identifiable trust fund account but maintained that he did keep the money separate from other client accounts and did not commingle the money. Respondent denied keeping any money for his own purposes and denied each charge of misconduct.
The Administrator called two witnesses, including Respondent, in support of her case and introduced 17 exhibits. Respondent testified on his own behalf, presented several character witnesses and tendered 12 exhibits.
The admitted allegations of the complaint and the evidence submitted at hearing established that Respondent is currently a sole practitioner who was licensed to practice law in Illinois in 1982. His practice focuses on criminal defense work, complex commercial and civil litigation, domestic relations and bankruptcy. From January 1989 to April 1997 he was a partner with Bahtiar Hoxha in the law firm of Brodsky & Hoxha. During the partnership, Hoxha handled the estate and probate matters, including the Estate of Charroon Shotivattana, deceased. Respondent never handled an estate matter and admitted to having very limited knowledge of probate matters. (Tr. 53-54, 113).
The administrator of the Shotivattana Estate was Herbert Shoichi Tomita. On March 1, 1990 Mr. Tomita opened an account with Bank Leumi under the name "Estate of Charroon Shotivattana, Herbert Shoichi Tomita, Administrators." Mr. Tomita was the sole signator on the account. The address on the account was listed as "c/o Brodsky & Hoxha Atty at Law, 180 N. LaSalle St, Ste 620, Chicago, Illinois 60601." Mr. Tomita died on April 13, 1995. (Admin. Ex. 2, 3, 11, 15).
In 1997 the partnership of Brodsky & Hoxha dissolved and Hoxha took all of the probate matters, including the Shotivattana estate matter, with him to his new practice. After the dissolution of the partnership, Respondent and Hoxha were not on speaking terms even though their law practices were located in the same building at 180 N. LaSalle Street, Chicago, Illinois. (Tr. 54-55, 78).
On or about July 19, 2000, Respondent received a letter from Bank Leumi regarding the Shotivattana account. The letter, addressed to Herbert Tomita "c/o Brodsky & Hoxha Atty at Law 180 N LaSalle St. Ste. 620," stated that the account had been inactive since January 6, 1995 and as of June 30, 2000 the account was reclassified as dormant and therefore subject to additional monthly service charges. The letter went on to state that the account could be restored to active status by making a deposit or by signing the reactivation request at the bottom of the letter. (Admin. Ex. 5; Tr. 55).
Victor Zezelic, Jr., a banking officer at Bank Leumi, U.S.A., explained the consequences associated with an inactive account. He stated that after an account has been inactive for five years, the bank sends a standard letter to the account holder informing that person of the inactivity in the account and the imposition of monthly service charges to dormant accounts. The letter further states that the account holder may restore the account to active status by making a deposit or signing a request for reactivation. Although not stated in the letter, Zezelic testified that the deposit can be as little as one dollar and that a withdrawal of funds would also reactivate the account. If the bank receives no response to the letter, the funds in the account are turned over to the State. Zezelic confirmed that on July 11, 2000 such a letter was sent to Herbert Tomita, the Administrator of the Estate of Charroon Shotivattana, in care of the law firm of Brodsky & Hoxha. (Tr. 22-26).
Respondent did not attempt to contact his former partner, Bahtiar Hoxha, regarding the letter he received from Bank Leumi. Respondent stated that he was irritated that Hoxha had neglected the Shotivattana estate for five years and he had lost confidence in Hoxha's ability to finish the work. He recalled that years earlier Tomita had complained to him that Hoxha had canceled twelve appointments to discuss the estate file. (Tr. 69, 78-80).
Respondent signed his own name to the request to reactivate the Shotivattana estate account and took the form to Bank Leumi on or about July 19, 2000. The request was rejected because Respondent was not a signator on the account. Respondent stated that the alternative method of reactivating the account, by making a deposit to the account, did not occur to him. After the request form was rejected, Respondent went directly to the courthouse to check the activity in the probate court file for the Shotivattana estate. He discovered that in the early 1990's several claims against the estate had been approved by the court but no orders had been entered for at least five years. (Ad. Ex. 6, Resp. Ex. 3; Tr. 55-56, 83-87).
Respondent testified that he signed Herbert Tomita's name to a second reactivation form, took the form to Bank Leumi and gave it to Victor Zezelic. Zezelic confirmed that he received a form bearing the purported signature of Herbert Tomita and that after the signature was compared to the signator card and approved by a senior bank officer, the estate account was reactivated. (Ad. Ex. 7; Tr. 28-29, 58).
At or about the time Respondent submitted the reactivation request, he also requested that the estate account be closed. A third reactivation form bears the signature of Herbert Tomita and contains the additional handwritten notation "Please close account. /s/ Herbert Tomita 07/20/00." The testimony conflicted as to when this added notation was made. Zezelic testified that Respondent approached him on July 20, 2000 with the request that the estate account be closed. When Zezelic told Respondent that the bank needed a signed request with Tomita's signature, Respondent then returned on July 21 with the request purportedly signed by Tomita. Respondent recalled, however, that several days or a week after the account was closed Zezelic realized that he needed a complete record and asked Respondent to have Tomita add the notation to the form. (Admin. Ex. 8; Tr. 29-30, 38, 60-62).
Zezelic testified that, when Respondent returned with the request signed by Tomita, he asked Respondent why Tomita was not present. Respondent told him that Tomita was "incapacitated." Zezelic did not inquire into the nature of the incapacitation but recalled that Respondent used that particular word to describe Tomita's absence. Zezelic admitted that he typically has as many as 24 conversations with bank customers each day but was able to recall his conversation with Respondent because they went into the anteroom of the bank. Zezelic stated that he relied upon Respondent's statement concerning Tomita because Respondent is an attorney and because he had dealt with Respondent for one year. (Ad. Ex. 8; Tr. 30, 34, 42, 50). Respondent testified that he had no recollection of telling Zezelic that Tomita was incapacitated. (Tr. 146-47).
Respondent testified that he believed he had authority to sign Tomita's name to the reactivation form as well as to the request to close the account because he was listed as one of the attorneys of record for the estate in the probate court file. He admitted that he did not have a court order nor did he have authority from his former partner or from Tomita to request that the bank distribute the proceeds of the account. He further admitted that when he signed Tomita's name, he purposefully tried to make the signature look like Tomita's signature so that the bank would believe it was authentic and release the funds. (Tr. 58-59, 63-64, 81, 137).
On or about Monday, July 23, 2000 Bank Leumi closed the estate account and issued a cashier's check in the amount of $23,012.91 to be paid to the order of "Herbert S. Tomita Adm. of the Est. of C. Shotivattana." Respondent testified that he picked up the check from Bank Leumi and, before cashing it, attempted to locate Tomita. His efforts included conducting an internet people search, checking the computerized partnership files and client index cards and reviewing the archived word processing documents for the estate file. Having no success, he affixed Tomita's endorsement to the back of the check and tendered it to a close friend, Mike Abusaad, who gave Respondent $23,013 in cash. Respondent again stated that he believed he had the authority to sign his client's name to the check to protect the funds. He admitted, however, that he has since learned that his belief was incorrect. (Admin. Ex. 9, 10; Tr. 31, 64-67, 88-89, 98-99).
After receiving the cash, Respondent inserted the money into an envelope marked with Tomita's name and placed the envelope in a safe in his home in Wilmette, Illinois. Respondent did not tell anyone else about the funds in the safe. (Tr. 68, 102).
Respondent stated that he closed the Shotivattana estate account in order to protect the funds from forfeiture to the State of Illinois and to protect himself from any malpractice action. He recalled that after his initial conversation with Zezelic on July 19, he had the impression that the funds were at risk of being forfeited in a short period of time. Zezelic testified, however, that he never told Respondent that the funds in the estate account were in danger of being forfeited to the State. Respondent denied knowing that the State would have held the funds in trust until the rightful owners came forward and denied knowing about the Illinois Uniform Disposition of Unclaimed Property Act, 765 ILCS 1025. (Tr. 32, 74, 82, 99, 141).
As for keeping the funds in cash rather than depositing the money in a bank, Respondent explained that he could not open an account in Tomita's name without Tomita's signature and he could not place the funds in an account in his own name because that action would amount to commingling. Further, he believed he could not put the funds in his client trust account because probate money cannot be commingled with other client accounts. (Tr. 91, 101-02, 138-41).
Respondent testified that, after he placed the estate funds in his safe, he intended to contact a competent probate attorney who could finish the work on the estate. He did not have a chance to contact an attorney or conduct any research regarding the proper handling of the funds, however, because during the time period between July and November 2000 he was occupied with several criminal trials and a week-long commercial trial. He believed that as long as the funds were secure in his safe, the situation was not urgent. (Tr. 68-73, 95-97, 100).
Respondent stated that on November 1, 2000 he received a letter from his former partner informing him that Herbert Tomita was deceased and asking him what he intended to do regarding the administration of the Shotivattana estate. Prior to his receipt of the letter, Respondent had no knowledge that Tomita had died. The letter from Hoxha further stated "I assume that you [withdrew the estate funds] to prevent the assets from going to the State of Illinois because the account has been dormant for sometime, and that said funds are currently in your client's funds account." Respondent replied, by letter of November 1, 2000, that he intended to handle the estate matter and requested that Hoxha forward any documents regarding the matter. (Admin. Ex. 12, 13; Tr. 75, 79).
Zezelic testified that in November, 2000 he also received a letter from Hoxha's office informing him that Tomita was deceased at the time the bank issued a check for the proceeds of the Shotivattana estate account. In light of the improper endorsement of Tomita's name on the check, Hoxha demanded that the bank immediately replenish the funds to the estate account. Upon receipt of the letter, Zezelic contacted Respondent and requested that the funds be returned. The following morning, Respondent appeared at the bank with the full amount of cash to redeposit into the estate account. Although Respondent stated that he returned the full amount in the exact same $100 bills he had received when he cashed the check, Zezelic testified that, from his vantage point at another teller window, he saw that Respondent had deposited $20 bills. Zezelic further stated that to his knowledge Respondent did not return the funds with interest even though the estate account was an interest bearing account. Respondent denied spending any of the estate money. (Ad. Ex. 14; Tr. 32-33; 92-93, 143-44, 149).
Respondent expressed his regret that he did not act differently with regard to the Shotivattana account and admitted that he was guilty of bad decision-making. He apologized for any damage done to the legal profession. (Tr. 133-35).
Evidence was submitted concerning Respondent's financial situation during the time period prior to November, 2000. Respondent testified that his 1997 divorce strained his financial situation and approximately one year after the divorce he filed for bankruptcy under Chapter 7 of the Bankruptcy Code. Although his debts were discharged in bankruptcy, Respondent has paid some of those debts and intends to pay the remainder as well. He stated that his financial status has improved, he has a good credit rating and his checking account was never overdrawn during the time period involved in this matter. He pays all of his bills on time, including the mortgage on his home and child support for his two children. During the summer and fall of 2000, his investment account had a balance of between $10,000 and $14,000. Respondent stated that his law practice was in good financial condition throughout 2000 and there were no shortfalls or overdrafts in his client trust account. He estimated that his gross revenue for fiscal 2000 was $175,000. (Resp. Ex. 6-11; Tr. 107-21).
Respondent has made charitable contributions to various organizations, including his synagogue and the Hebrew Theological College. He attends regular services and study groups at his synagogue. (Resp. Ex. 13; Tr. 122-24).
Respondent's pro bono endeavors have included bankruptcy work for a disabled attorney, criminal defense work and an immigration case in which a Chicago mother was reunited with her child from Romania. He has worked with the clerk of the Circuit Court of Cook County on the relocation of the traffic court and on establishing a system for reporting felony DUI's to the Secretary of State's office. He co-chaired a committee that reviewed the status of the civil division of the circuit court and made recommendations for improvements to the division. (Tr. 125-131).
Several witnesses, including a judge and a Chicago police officer, testified to Respondent's upstanding reputation for truthfulness and veracity. Two additional witnesses discussed work that Respondent had done for them on a pro bono basis. Donald Utrosa believed that Respondent was single-handedly responsible for bringing his wife's son to the United States from Romania. Robert Kleinberg credited Respondent with negotiating a reduced sentence for Kleinberg's son in a substance abuse matter and with providing continuous support and assistance to the Kleinberg family.
Victor Zezelic testified that Respondent had a good relationship with Bank Leumi and that Respondent had just made a mistake. Zezelic believed that Respondent should be shown some leniency. He admitted that he had not discussed Respondent's reputation for truth, veracity or honesty with anyone in the legal community. (Tr. 50-51).
A final witness, Judge Melvin Cole, was called as a character witness on behalf of Respondent. Upon examination, Judge Cole acknowledged that he had not spoken to anyone regarding Respondent's reputation in the legal community and any opinion as to Respondent's reputation would be based solely on his own personal experience and observance. Judge Cole did state that he had referred two matters to Respondent and he did speak to those clients and knew their opinion of the quality of Respondent's work. The Administrator objected to any testimony concerning Respondent's performance in other cases, arguing that such testimony is inadmissible. The hearing panel took the objection under advisement.
FINDINGS AND CONCLUSIONS
Respondent was charged with conversion of client funds; failing to deposit and maintain client funds in a separate identifiable trust account; committing a criminal act (forgery) that reflects adversely on his honesty, trustworthiness or fitness as a lawyer; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and engaging in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute. In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. See In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390, 393 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. See People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762, 765 (1991).
We find, based upon the admitted allegations of the complaint and the evidence adduced at hearing, that the Administrator proved by clear and convincing evidence that Respondent converted funds belonging to the Estate of Charroon Shotivattana. Respondent's assertion that he did not "use" the funds and simply kept them in his home safe does not preclude our finding. Conversion has been defined by the Supreme Court as "any unauthorized act, which deprives a man of his property permanently or for an indefinite time." In re Rosin, 156 Ill. 2d 202, 620 N.E.2d 368, 370 (1993). Conversion may occur in numerous ways and does not require a dishonest motive. See In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300, 309 (1993). When an attorney holds money for another, it is essential that it be held in "such a manner that there can be no doubt that the attorney is holding it only for another and that the money does not belong to him personally." See In re Clayter, 78 Ill. 2d 276, 399 N.E.2d 1318, 1321 (1980).
During the time Respondent held the funds in his home, without the knowledge or consent of any representative of the estate, the estate was deprived of the use of those funds. Moreover, the funds were in jeopardy of being lost to the estate in the event of Respondent's death because he did not maintain adequate documentation of the ownership of the funds nor did he provide any record of his transaction to the estate file, to his former partner or to the bank. In essence, funds that belonged to the client were turned into funds to which Respondent had sole access and which he could use freely without the client's knowledge or approval. This is conversion of funds.
The Administrator referred us to cases in which the Court rejected claims that client funds were protected where those funds were kept in the form of cash and locked up for safekeeping. In In re Ashbach, 13 Ill. 2d 411, 150 N.E.2d 119, 123 (1958), the attorney cashed the settlement checks of three clients and retained the proceeds in a filing cabinet. In finding that the attorney engaged in conversion the Court stated: "[t]he claim of respondent that he segregated the proceeds of these settlements in cash in a steel filing cabinet, and made disbursements therefrom without any written record or account, an assertion which is common under such circumstances (citation omitted), taxes our credulity." Ashbach, 150 N.E.2d at 123.
In In re Simpson, 41 Ill. 2d 562, 268 N.E.2d 20, 22 (1971), the Court stated that even if the attorney's account of safekeeping his client's funds in a safe without a receipt or record was accepted at face value, the "slip-shod" safekeeping, coupled with the attorney's failure to return the client's money on request and his retention of the money until after disciplinary hearings began, was "tantamount to a designed fraudulent conversion." Simpson, 268 N.E.2d at 22. See also In re Wallis, 96 SH 589 (1998), M.R. 15549 (1999) (case dismissed upon death of Respondent) (Hearing Board and Review Board found that conversion occurred when attorney held client funds, in the form of a cashier's check and currency, in a locked office). We adhere to the reasoning cited in the foregoing cases and reject any notion that keeping client funds in a locked safe is a defense to a charge of conversion.
We also find that the Administrator established by clear and convincing evidence that Respondent failed to deposit and maintain client funds in a separate identifiable trust account in violation of Rules 1.15(a) and 1.15(d) of the Illinois Rules of Professional Conduct. Respondent's own admissions that he kept the Shotivattana estate funds in the form of cash in his home establish a clear failure to comply with Rule 1.15. The fact that the funds were not commingled with his own or any other funds does not preclude a finding that the rule was violated.
In In re Johnson, 133 Ill. 2d 516, 552 N.E.2d 703 (1989) the Court was confronted with an attorney who also served as consul general for the Republic of Iceland. The attorney deposited client settlement funds into a consular account in order to protect the funds from his client's creditors. The Court rejected the attorney's argument that the "separate identifiable" provision of the rule was satisfied and noted that while there was no evidence of a technical commingling, the rule is intended to "guard not only against the actual loss of the funds but also against the risk of loss." Johnson, 552 N.E.2d at 710. The Court pointed out that failure to comply with the express mandate of the rule often leads to the commingling of client funds which, in turn, often leads to the conversion of the client funds to the attorney's personal use or benefit. See Johnson, 552 N.E.2d at 710.
In In re Lingle, 27 Ill. 2d 459, 189 N.E.2d 342, 344 (1963) the attorney cashed a settlement check and, after withdrawing his fees and expenses, placed the balance of the funds in an envelope which he marked and put into his safety deposit box. When he eventually removed the cash from the safety deposit box, he did not save the marked envelope. The Court described the attorney's actions as "a covert method of handling a client's funds" which was "highly unprofessional and one which can only create suspicion and harmful inference." Lingle, 189 N.E.2d at 344.
We further find that Respondent's acts of conversion and failure to deposit client funds into a separate identifiable account have brought the legal profession into disrepute in violation of Supreme Court Rule 771. See In re Lingle, 189 N.E.2d at 346 ("The loose, careless and dilatory practices followed by respondent in matters entrusted to him, his failure to follow court orders, and his unorthodox methods of handling and accounting for funds entrusted to him, all were such as to bring the legal profession, the courts and the administration of justice into disrepute"); In re Lewis, 118 Ill. 2d 357, 515 N.E.2d 96, 98 (1987) (commingling and conversion places the entire legal profession in disrepute).
As to the remaining charges set forth in the complaint, we find that the Administrator did not prove by clear and convincing evidence that Respondent committed the criminal act of forgery as that offense is set forth in the Illinois Criminal Code, 720 ILCS 5/17-3. The Code defines forgery as follows:
Forgery. (a) A person commits forgery when, with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; or
(2) Issues or delivers such document knowing it to have been thus made or altered; or
(3) Possesses, with intent to issue or deliver, any such document knowing it to have been thus made or altered.
A key element of forgery, an "intent to defraud," is the element we find to be missing in the present case. Respondent admitted that he signed Tomita's name on three separate occasions -- twice on bank forms and once as an endorsement to the cashier's check made payable to Tomita. His testimony reveals, however, (and we believe his statements) that his intent in signing another person's name was not to defraud the bank or his client. He repeatedly stated that he was worried about the imminent forfeiture of the funds to the State and wanted to act quickly to protect those funds on behalf of his client. Moreover, he believed that as an attorney of record for the Shotivattana estate, he had the authority to sign Tomita's name to release the estate funds. His actions, as he came to learn at a later time, were fraught with mistaken assumptions. While we clearly do not excuse Respondent for his failure to investigate his authority to sign another person's name or his lack of thoroughness in researching the law applicable to dormant accounts, his misguided actions and lack of research alone are not sufficient to establish an intent to defraud. Nor can we infer a fraudulent intent from any other conduct or circumstances. See In re Stern, 124 Ill. 2d 310, 529 N.E.2d 562, 565 (1988) (motive and intent are rarely proved by direct evidence and must be inferred from conduct and circumstances.) Here, the Administrator offered no proof that Respondent actually spent any of the estate funds, that he had a plan for the funds, that he was in dire financial straits, or that he attempted to cover his tracks to avoid any detection.
The conflicting testimony concerning the denomination of the bills returned by Respondent does not disturb us. Although Mr. Zezelic recalled seeing Respondent deposit $20 bills, he admitted that he viewed the transaction from a distance. While we have no reason to doubt the trustworthiness of Zezelic, we recognize that the likelihood of his being able to clearly recollect and distinguish Respondent's transaction from the dozens of others he probably witnessed during that day is marginal. Respondent, on the other hand, described the type of bills he received from his friend Abusaad and testified convincingly that he redeposited the exact same bills to the estate account.
The testimony that does trouble us is Respondent's admission that he purposely attempted to sign Tomita's name so as to replicate Tomita's actual signature. If Respondent sincerely believed he had authority to sign Tomita's name, there would be no reason for such a subterfuge. Having observed Respondent, however, and listened to his explanations and concerns over the funds, we believe that his purposeful attempt to mimic Tomita's signature was predicated upon his belief that time was of the essence in securing the funds from forfeiture to the State. He apparently sincerely believed that his action was necessary to quickly protect his client's funds. In light of our observations and conclusions regarding Respondent's testimony and demeanor, we find that Respondent did not possess the requisite intent to commit forgery and therefore did not violate Rule 8.4(a)(3).
For similar reasons we find that Respondent did not engage in dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). We believe that the element of intent is inherent in that rule and that the Administrator did not prove that Respondent acted with the necessary intent to deceive anyone. Rather, Respondent's greatest mistake was acting in haste without seeking appropriate information or advice. His decision-making was further clouded by the ill will that existed between himself and his former partner.
In In re Howard, 96 CH 531 (Rev. Bd. 1998), appr'd M.R. 15103 (1998), an attorney who signed the names of hospital employees on birth history forms without the authorization of those employees was charged with engaging in dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). The Review Board expressed some doubt as to whether "the purpose of Rule 8.4(a)(4) was intended to cover situations where an attorney's questionable completion of a form may have been simply the result of a misunderstanding on her part". Howard, Rev. Bd. Rpt. at 15. After noting that the attorney should have been cognizant of the impression she gave to anyone who might read the form, the Board stated that "without any evidence of dishonest intent, however, we view any misrepresentation as simply an exercise in poor judgment and, at most, a technical violation of the rule." Howard, Rev. Bd. Rpt. at 15. See also In re Johnson, 133 Ill. 2d 516, 552 N.E.2d 703, 709 (1989) (attorney who signed co-counsel's name to check did not engage in dishonesty, fraud, deceit or misrepresentation with respect to his co-counsel where attorney's purpose was to quickly deposit settlement check); In re Witt, 145 Ill. 2d 380, 583 N.E.2d 526, 534 (1991) (no violation of Rule 1-102(a)(4) (predecessor to Rule 8.4(a)(4)) where judge failed to disclose loan on "Declaration of Economic Interest" but had no intent to deceive).
Having concluded that Respondent engaged in wrongdoing, we must determine the appropriate discipline warranted by the misconduct. In determining the proper sanction, we consider the purposes of the disciplinary process. The goal of these proceedings is not to punish but rather to safeguard the public, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300, 309 (1993). Another factor for consideration is the deterrent value of attorney discipline and the need to impress upon others the repercussions of errors such as those committed by Respondent in the present case. See In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906, 912 (1995).
We also take into account those circumstances which may mitigate and/or aggravate the misconduct. See In re Witt, 145 Ill. 2d 380, 583 N.E.2d 526, 535 (1991). In mitigation, the evidence established that Respondent has acknowledged his wrongdoing, expressed remorse for his actions and cooperated in these proceedings. Further, the evidence did not indicate that Respondent's actions resulted from any dishonest or pecuniary motive and there are no prior orders or opinions imposing discipline upon Respondent. See In re Clayter, 78 Ill. 2d 276, 399 N.E.2d 1318, 1321 (1980); In re Samuels, 126 Ill. 2d 509, 535 N.E.2d 808, 816 (1989).
We note that Respondent returned the estate funds to Bank Leumi promptly upon request and before any complaint was filed in this matter. Restitution, while not a defense to charges of misconduct, can be taken into consideration as a factor in mitigation. See In re Rolley, 121 Ill. 2d 222, 520 N.E.2d 302, 307 (1988).
We also consider Respondent's charitable and pro bono activities as well as his reputation for truth and veracity. We decline to give any weight to the testimony of Judge Cole, however, since his opinion of Respondent's reputation in the legal community was confined to knowledge of Respondent's reputation for competence rather than to his reputation for truth and veracity. Judge Cole's knowledge of Respondent's performance on other cases is not relevant to our determination of discipline in this case. See In re Samuels, 126 Ill. 2d 509, 535 N.E.2d 808, 816 (1989) (Court refused to consider question of whether respondent's other clients were well-served).
In aggravation, we consider Respondent's disturbing failure to adequately research various issues relevant to his actions in this case. Had he investigated the repercussions of leaving the funds in the estate account, researched his authority to sign Tomita's name, contacted his former partner when he received the initial letter from the bank, or consulted any competent probate attorney for advice, he may have avoided a violation of the Rules of Professional Conduct and eliminated the necessity for the present proceeding.
Further, we consider in aggravation the fact that Respondent's conduct caused a serious risk of harm to his client. During the three months that the estate's $23,000 sat in Respondent's home safe with no written record of its whereabouts, the funds were at risk of being lost to the estate. The death or disability of Respondent, coupled with the continued failure by estate heirs or creditors to pursue their claims, could have caused the funds to be mistaken for property belonging to Respondent. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102, 107 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care").
The Administrator, assuming that we would find all of the charges in the complaint proved, suggested that we recommend a suspension of three years or, in the alternative, a suspension of three years until further order of court. Respondent proposed a censure.
Because we have found that significant charges of the complaint were not proved by clear and convincing evidence, we reject the Administrator's suggestion, and the cases she offered in support of that suggestion, as being too harsh. We look for guidance instead to those cases involving a single instance of conversion involving no dishonest motive. We also keep in mind the aggravating circumstances present in this case.
Discipline imposed in conversion cases involving a first offense with no dishonest motive has ranged from censure to short suspensions. See In re Young, 111 Ill. 2d 98, 488 N.E.2d 1014, 1017 (1986) (attorney censured for holding $3,209.04 of escrow funds in his personal account, the balance of which several times dropped below the amount being held in escrow and at one point was overdrawn); In re McLennon, 93 Ill. 2d 215, 443 N.E.2d 553, 556 (1982) (attorney censured for commingling $6600 of his client's money and using part of the funds for his personal purposes); In re Sherman, 60 Ill. 2d 590, 328 N.E.2d 553, 555 (1975) (attorney who deposited $5500 in escrow funds into his personal checking account which was subsequently overdrawn on several occasions censured); In re Cheronis, 114 Ill. 2d 527, 502 N.E.2d 722, 726-27 (1986) (three-month suspension where conversion was aggravated by Respondent's serious financial condition); In re Merriwether, 138 Ill. 2d 191, 561 N.E.2d 662, 667 (1990) (three-month suspension for conversion of funds owed to lienholder where Respondent made misrepresentations to claimant); In re Bauerle, 98 SH 21, M.R. 16712 (2000) (attorney suspended for twelve months with all but four months stayed in favor of probation for conversion of $43,000 of estate funds).
Although we glean some guidance from the foregoing cases, the situation before us is not an instance where Respondent's mere inattention to bookkeeping resulted in an unintentional use of client funds. Respondent purposely and recklessly withdrew his client's funds from a financial institution and subjected those funds to a risk of loss. We believe the aggravating circumstances of the present case and the considerably large amount of money involved make Respondent's misconduct inappropriate for a recommendation of a mere censure.
In fashioning a recommendation in this case, we consider the foregoing facts as well as our responsibility to safeguard the public and the reputation of the legal profession. In light of our findings regarding Respondent's lack of dishonest motive, we do not believe that he poses a threat to his future clients. We accept his testimony that he now has a full realization of his errors and therefore we do not anticipate that a similar situation will arise again.
Nonetheless, Respondent's actions have damaged the integrity of the profession. For this reason, and because we wish to once again alert other attorneys to the repercussions involved in the failure to properly maintain client funds, we conclude that a short suspension is warranted.
Accordingly, we recommend that Respondent Joel Alan Brodsky be suspended from the practice of law for a period of three months.
DATED: 15 February 2002
James A. Shapiro, Chair, with Leonard J. Schrager, concurring