August 27, 1997
 
 

Ms. Mary Robinson,
Administrator Attorney Registration
    and Disciplinary Commission
130 E. Randolph Dr. - #1500
Chicago, IL 60601-6219

Dear Ms. Robinson:

            Re: George Julian VanEmden

These charges of attorney misconduct are being filed against attorney George J. VanEmden for the ethical violations stated below.

On September 12, 1984, attorney George J. VanEmden filed an action on behalf of Saber Computer Services, Inc. ("Saber") in case no. 84-M1-114157, known as Saber Computer Services, Inc. v. Productivity Specialists, Inc. in the amount of $1710.00, plus interest and costs.

On September 26, 1985 VanEmden signed a Release (Satisfaction) of the Judgment obtained on November 30, 1984 in the amount of #1710.00 plus costs.

At no time has attorney George J. VanEmden paid the collected monies to Saber Computer Services, Inc.

Saber incorporates the full and complete record of case no. 84-M1-114157 as part of these charges and as an exhibit to the following charges.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had the legal and fiduciary duty to pay Saber Computer Services, Inc. the sum collected, less reasonable attorney fees, promptly upon receipt of payment.
As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of the Illinois Rules of Professional Conduct ("IRPC") Rules 1.8(i) and 8.4(a)(4).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had to keep all client funds that have been collected in a separate and identifiable client trust account at all times, even if the period of time is temporary.

It is now 12 years later. Saber suggests that 12 years cannot be considered a temporary period of time. Saber suggests that VanEmden was, and is, consciously, deliberately, intentionally, and knowingly engaged in theft of Saber's property. 720 ILCS 5/16-3(a).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rule 1.15(a).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he did not have any authority to sign any of the checks made out to Saber Computer Services, Inc. by Productivity Specialists, Inc. or by 1st National Bank of Mt. Prospect, IL. for the payment of the monies owed to Saber Computer Services, Inc. by Productivity Specialists, Inc.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rules 8.4(a)(4) and 8.4(a)(5).

As an attorney, George J. VanEmden knew, or reasonably should have known, that by not paying the funds collected to Saber Computer Services, Inc., VanEmden unlawfully converted his client's funds to himself and to others.

"Conversion is an unauthorized act which deprives a person of his property permanently or for an indefinite period of time. In re Rosin, 156 Ill.2d 202, 206, 620 N.E.2d 368, 370 (1993). The essence of conversion is the wrongful deprivation of property from its rightful owner. Id."

"When a lawyer converts client money to his own use, he commits an act involving moral turpitude". In re Stillo, 68 Ill.2d 49, 368 N.E.2d 897, 899 (1977).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rule 1.15(a).

As an attorney, George J. VanEmden knew, or reasonably should have known, that by not paying the funds collected to Saber Computer Services, Inc., VanEmden unlawfully commingled his client's funds with his own or his law-firm's funds.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rule 1.15(a).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had a legal and fiduciary duty to inform his client that he had collected the funds. In re Howard Solomon 118 Ill.2d 287 (1987) ("he had a duty to render a formal accounting to his clients even though clients may not make such a request."). At no time did VanEmden inform Saber Computer Services, Inc. that he had collect the funds from Productivity Specialists, Inc.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rule 1.15(b).

As an attorney, George J. VanEmden knew, or reasonably should have known, that by endorsing the checks without the knowledge and the approval of Saber Computer Services, Inc., he converted Saber Computer Services, Inc. funds to his own or his law-firm, even if only for a moment.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had not, at any time, submitted an accounting of the funds collected to his client. Instead he consciously, deliberately, knowingly, and intentionally converted the funds to his own use. In re Howard Solomon, 118 Ill.2d 287 (1987) ("he had a duty to render a formal accounting to his clients even though clients may not make such a request.").

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rules 1.15(a) and 1.15(b).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had a duty under law to communicate with his client and to keep the client fully informed. At no pertinent time did VanEmden inform Saber Computer Services, Inc. as to the status of the referenced case, nor did he, at any time, inform Saber Computer Services, Inc. that he had obtained a judgment for the funds, or that he collected the funds sued for.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he consciously, deliberately, knowingly, and intentionally engaged in actions in violation of IRPC Rule 1.4.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, knowingly, and intentionally engaged in an act of fraud upon his client.
The Supreme Court, In re Eugene Lee Armentrout et al., 99 Ill.2d 242, 75 Ill.Dec. 703, 457 N.E.2d 1262 (1983), stated that:

"Fraud encompasses a broad range of human behavior, including " ' * * * anything calculated to deceive, * * * whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture.' " (Regenold v. Baby Fold, Inc. (1977), 68 Ill.2d 419, 435, 12 Ill.Dec. 151, 369 N.E.2d 858, citing People ex rel. Chicago Bar Association v. Gilmore (1931), 345 Ill. 28, 46, 177 N.E. 710; In re Alschuler (1944), 388 Ill. 492, 503-04; Black's Law Dictionary 594 (5th ed. 1979).) Too, this court has previously disciplined lawyers even though their fraudulent misconduct did not harm [99 ILL2D 252] any particular individual. In re Lamberis (1982), 93 Ill.2d 222, 229, 66 Ill.Dec. 623, 443 N.E.2d 549."

In Frederick Edward Strufe, Disciplinary case no. 93 SH 100, the Supreme Court held that "Fraud has been broadly defined as anything calculated to deceive."

Our Supreme Court, in Steven R. Jakubowski, Disciplinary case no. 93 CH 455, stated that:

"The Court has broadly defined fraud as any conduct calculated to deceive, whether it be by direct falsehood or by innuendo, by speech or silence, by word of mouth, by look, or by gesture. (In re Armentrout (1983) 99 Ill.2d 242, 457 N.E.2d 1262, 1266, 75 Ill. Dec. 703; In re Segall (1987) 117 Ill.2d 1, 509 N.E.2d 988, 991, 109 Ill. Dec. 149). Fraud includes the suppression of the truth, as well as the presentation of false information. (In re Witt (1991) 145 Ill.2d 380, 583 N.E.2d 526, 531, 164 Ill. Dec. 610)."

VanEmden had consciously, deliberately, knowingly, and intentionally engaged in an act of committing fraud upon this client, and had consciously, deliberately, knowingly, and intentionally engaged in acts in violation of IRPC Rules 8.4(a)(1), 8.4(a)(3), 8.4(a)(4), and 8.4(a)(5).

As an attorney, George J. VanEmden knew, or reasonably should have known, that at no time did Saber Computer Services, Inc. see any of the checks payable to it from Productivity Specialists, Inc. or 1st National Bank of Mt. Prospect.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rules 1.15, 8.4(4)(a), and 8.4(a)(5).

As an attorney, George J. VanEmden knew, or reasonably should have known, that at no time did Saber Computer Services, Inc. endorse any of the checks payable to Saber Computer Services, Inc. by Productivity Specialists, Inc. or 1st National Bank of Mt. Prospect.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rules 1.15, 8.4(a) and 8.4(a)(5).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, knowingly, and intentionally placed Saber Computer Services, Inc.'s funds at risk, because the client's funds were not at all times in a client trust account, was converted to his use, and was commingled with his or his law-firm's funds.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rule 1.15(a).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in actions to deprive Saber Computer Services, Inc. of its property.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rule 1.15.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in actions to deprive Saber Computer Services, Inc. of its interest earned on the property.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rule 1.15.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in actions to deprive Saber Computer Services, Inc. of its investment income on the property unlawfully held by VanEmden.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rules 1.15, 8.4(a)(4), and 8.4(a)(5).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in actions calculated to harm Saber Computer Services, Inc. economically.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rule 8.4(a)(4).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly betrayed the trust of this client, and acted in a conflict of interest with his client as placing his interest in the client's money ahead of the client's own interest in the client's funds.

VanEmden had consciously, deliberately, intentionally, and knowingly engaged in actions of overreaching. Overreaching is defined as taking advantage of the position of influence that an attorney naturally holds vis-a-vis a client. In re Stille, 68 Ill.2d 49, 368 N.E.2d 897 (1977).

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in violations of IRPC Rules 1.7(b) and 1.8.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly betrayed the trust placed upon him by the Illinois Supreme Court in granting him permission to engage in the practice of law in the State of Illinois.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had the duty under law to either pay the monies to his client or to deposit said funds with the State of Illinois under the Unclaimed Property Act. Such funds of Saber Computer Services, Inc. were not included in the latest list of "Notice of Names of Persons Appearing to be Owners of Unclaimed Property" issued by the State of Illinois Department of Financial Institutions, and appearing in the August 17, 1997 published Legal Notices.

If VanEmden did not intend to keep the funds collected on behalf of Saber, he should have paid the funds to Saber or paid the funds to the State of Illinois, as required by law. Obviously, VanEmden intended to keep the client's funds.

VanEmden sought to enrich himself dishonestly at the expense of his client; he has dishonored the profession by conduct inconsistent with the standards of the profession. Saber suggests the privilege of practicing law should only be accorded to those who demonstrate the requisite moral attainment and moral character. An attorney who betrays the trust reposed in him for personal financial gain demonstrates he no longer possesses the requisite moral character to be an attorney.

As an attorney, George J. VanEmden knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in actions which tends to defeat the administration of justice and brings the legal profession into disrepute. Supreme Court Rule 771.

We further request that attorney VanEmden be ordered to pay the funds he collected to Saber Computer Services, Inc.

We would appreciate your conducting an investigation into the above charges.

Yours truly,

SABER COMPUTER SERVICES, INC.

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