The hearing board that handles these matters in Illinois decided that he should be censured for violating several rules of professional ethics, since he was overall a good guy and had lots of experience (why such factors should even be relevant is beyond my comprehension). This means publicly telling him that he did a bad job with no other collateral effects or punishment. When lawyers who are proved guilty of ethics violations and receive nothing more than what amounts to a warning, I can understand how the public can grow cynical about how seriously the legal profession views its ethical responsibilities. We as a profession earn it by even claiming that actions like censures (and many states even have a milder "private censure", which is a reprimand that is given privately to the unethical attorney).
I am, at least, going to publish the opinion of the Board here, as the Illinois system is not easily searched and does not appear to come up in Google searches either. Apologies if this is long. This blog does come up on Google, MSN, Yahoo and other types of searches, so it will, at least, serve as a warning to anyone who does such a search regarding Donald Ray Brewer that he is an attorney who has been found by an Illinois tribunal to have acted unethically in a personal injury case.
I'll also note, for the record, that despite the fact that I was the complaining witness in this case, that more than three weeks after it was resolved, no one even bothered to tell me the resolution of the case or send me a copy of the apparently final order in the case. Thank you Illinois for the red carpet treatment you provide to people who complain about unethical attorney conduct in your state.
DECISION FROM DISCIPLINARY REPORTS AND DECISIONS SEARCH
Filed October 6, 2005
In re Donald Ray Brewer
Commission No. 04 CH 55
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) failing to provide competent representation to a client; 2) failing to act with reasonable diligence and promptness; 3) failing to keep a client reasonably informed about the status of a matter or to promptly comply with reasonable requests for information; 4) failing to make reasonable efforts to expedite litigation consistent with the interests of the client; 5) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 6) engaging in conduct that is prejudicial to the administration of justice; and 7) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute
RULES DISCUSSED: Rules 1.1(a), 1.3, 1.4(a), 3.2, 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770
DATE OF OPINION: October 6, 2005
HEARING PANEL: David F. Rolewick, Chair, George M. Shur and Fran McConnell Williams
RESPONDENT'S COUNSEL: Warren Lupel
ADMINISTRATOR'S COUNSEL: Robert J. Verrando
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
DONALD RAY BREWER,
Commission No. 04 CH 55
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing was held on March 2, 2005, at the Chicago, Illinois, offices of the Attorney Registration and Disciplinary Commission ("ARDC") before the Panel of David F. Rolewick, Chair, George M. Shur and Fran McConnell Williams. Robert J. Verrando represented the Administrator of the ARDC. Respondent appeared in person and was represented by Warren Lupel.
On June 22, 2005, the Administrator filed a one-count Complaint against the Respondent pursuant to Supreme Court Rule 753(b). The Complaint charges the Respondent with: a) failing to provide competent representation to a client; b) failing to act with reasonable diligence and promptness; c) failing to keep a client reasonably informed about the status of a matter or to promptly comply with reasonable requests for information; d) failing to make reasonable efforts to expedite litigation consistent with the interests of the client; e) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; f) engaging in conduct that is prejudicial to the administration of justice; and g) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Respondent filed his
Answer to Complaint on August 27, 2004. The Respondent admits some factual allegations and denies others, but denies all allegations of misconduct.
The Administrator submitted documentary exhibits 1- 24, called the Respondent as an adverse witness and presented the testimony of Tom Rausch and Andrew Oh-Willeke. The Respondent testified on his own behalf and presented the testimony of Thomas Burney, John M. Falasz and James Steigert.
There is no significant factual dispute. The evidence will be reviewed in a single narrative. In November 1999, Melody Wainwright died after receiving psychiatric treatment at Blessing Hospital in Quincy, Illinois. She was survived by her husband, William Wainwright, and her three minor children. At all times relevant, Mr. Wainwright lived in Colorado and was represented by Andrew Oh-Willeke, a Colorado attorney. On October 9, 2001, Mr. Oh-Willeke sent the Respondent a fax regarding the Wainwright matter and seeking local counsel for potential litigation. (Adm. Ex. 2). Mr. Oh-Willeke testified that he had several telephone conversations with the Respondent regarding the Wainwright matter during October and November 2001. (Tr. 34). On November 13, 2001, the Respondent agreed to represent Mr. Wainwright to recover damages relating to his wife's death from the hospital and the physicians and staff who treated her and from her health insurer. (Adm. Ex. 1). Under the terms of the retainer contract, the Respondent agreed to undertake responsibility for the trial work in Illinois. (Adm. Ex. 1; Tr. 87). Further, the Respondent agreed to cooperate and communicate with Mr. Oh-Willeke in prosecuting Mr. Wainwright's claims in Illinois. (Adm. Ex. 1). When the Respondent agreed to represent Mr. Wainwright, he knew that the statute of
limitations for the Wainwright matter would expire November 24, 2001, ten days later. (Tr. 112).
The Respondent prepared a complaint on Mr. Wainwright's behalf against Blessing Hopital, Leroy Johnson, M.D. and Richard Newman, M.D., Humberto Aguilar, M.D., Quincy Physicians and Surgeons Clinic ("Quincy") and Rocky Mountain Healthcare Options, Inc. ("Rocky Mountain") for filing in the United States District Court for the Central District of Illinois. (Adm. Ex. 18). The complaint was filed on November 21, 2001. (Tr. 87). At the time, 735 ILCS 5/2-622(a)(1) required that the plaintiff's attorney in an action based on healing art malpractice filed in Illinois attach to the complaint his affidavit and a physician's report explaining that there is a reasonable and meritorious cause of action based upon the physician's review of the medical record and other relevant material. (hereafter referred to as a "622 report")The failure to file such certificate and report is grounds for dismissal of the complaint. When the Respondent accepted the case, he knew the requirements of Section 2/622 of the Code of Civil Procedure. (Tr. 88). The Respondent knew that an opinion in this case had to come from a degreed medical doctor. (Tr. 88). The complaint that was filed on November 21, 2001, did not contain a 622 report. The Respondent testified that he never received medical records from Mr. Wainwright or Mr. Oh-Willeke, which were necessary for the 622 report. (Tr. 115). The Respondent explained that he waited until each of the named defendants had been served and then subpoenaed each of the medical personnel and the hospital for their medical records. (Tr. 115).
While waiting for the medical records, the Respondent began searching for a medical expert to prepare the 622 report. (Tr. 117). The Respondent determined that he needed a psychiatric M.D. and someone who was a hospital administrator. (Tr. 119). The Respondent
first communicated with Joseph Stevens, who at that time was an officer of Sherman Hospital and administrator in charge of all the doctor medical professionals in the hospital. (Tr. 120). The Respondent also called several doctors from an Elgin mental health facility. (Tr. 122). The Respondent also recalled talking to Michelle Skinner who was an administrator for Good Shepard Hospital. (Tr. 122). All of the people that the Respondent called and spoke with told the Respondent that they would not be able to prepare the 622 report. (Tr. 121-122).
On January 4, 2002, Mr. Oh-Willeke sent the Respondent a letter requesting status information regarding the Wainwright matter. (Adm. Ex. 3). Mr. Oh-Willeke testified that the Respondent answered the letter a month and a half later. (Tr. 36; Adm. Ex. 4).
On February 14, 2002, the Respondent sent Mr. Oh-Willeke a letter telling him that he was having problems getting experts and that he had been turned down by numerous doctors and administrators. (Adm. Ex. 4; Tr. 89). At that time, the Respondent spoke with Tom Rausch, an attorney the Respondent had opposed on prior occasions. (Tr. 122). The Respondent admitted that when he discussed the situation with Mr. Rausch, he did not specify that he needed a M.D. He just requested a recommendation for a doctor. (Tr. 123). Mr. Rausch recommended Dr. Robert Meyer. (Tr. 123).
On July 23, 2002, Mr. Oh-Willeke sent the Respondent an e-mail requesting information regarding the status of the Wainwright matter. The e-mail message made reference to a conversation between the Respondent and Mr. Oh-Willeke in May 2002. (Adm. Ex. 6). Mr. Oh-Willeke testified that the statements made in the e-mail were accurate. Further, Mr. Oh-Willeke stated that he received a partial answer to his July 23, 2002 e-mail from the Respondent in November 2002. (Tr. 38). In July 2002, the Respondent voluntarily dismissed the Quincy clinic and Dr. Aguilar as defendants from the case. (Tr. 39). On August 13, 2002, Mr. Oh-Willeke
learned that Rocky Mountain Healthcare, a defendant, was also dismissed from the case for jurisdictional reasons. (Adm. Ex. 7). At that time, Mr. Oh-Willeke asked the Respondent for information about an expert needed to write the 622 report. (Adm. Ex. 7). The Respondent informed Mr. Oh-Willeke on August 14, 2002 that he was just then able to obtain access to the necessary medical records. (Adm. Ex. 8). The Respondent also informed Mr. Oh-Willeke that he was not in communication with the client, Mr. Wainwright. (Adm. Ex. 8).
In August 2002, the Respondent hired Dr. Robert Meyer as his expert witness in the case. (Tr. 91-92). At the time the Respondent hired Dr. Meyer, he did not review his curriculum vitae but relied on information from Mr. Rausch that Dr. Meyer was a doctor and a lead administrator at Horizons Health. (Tr. 92). On September 16, 2002, the Respondent received a 622 report from Dr. Meyer. (Adm. Ex. 9). The document is signed by Dr. Robert Meyer, Ph.D. The Respondent did not note the doctor's degree at that time. (Tr. 125; Adm. Ex. 9). The Respondent testified that he first learned that Dr. Meyer was not a M.D. in November 2002. (Tr. 93). At that time, the Respondent asked Dr. Meyer to refer him to a medical doctor who could prepare the 622 report. (Tr. 128). Dr. Meyer referred the Respondent to Dr. Dennis Brightwell. (Tr. 128; Adm. Ex. 10).
On November 4, 2002, Mr. Oh-Willeke sent a letter to the Respondent requesting copies of all the pleadings and correspondence in the Wainwright matter. (Adm. Ex. 12). The letter makes note that a request for the documents had been made some months earlier. (Adm. Ex. 12). On November 8, 2002, Mr. Oh-Willeke sent an e-mail to the Respondent requesting information about the status of the Wainwright matter. (Adm. Ex. 13). On November 14, 2002, the Respondent mailed copies of correspondence and pleadings for the Wainwright matter to Mr. Oh-Willeke. (Adm. Ex. 14). Mr. Oh-Willeke testified that the documents the Respondent
sent to him consisted of pleadings and correspondence filed early in the case. (Tr. 45-46). After receiving the documents that the Respondent sent him, Mr. Oh-Willeke sent the Respondent a letter explaining his understanding of the status of the case on November 18, 2002. (Adm. Ex. 15). The letter contained several questions regarding the dismissal of defendants Aquilar and Quincy Physicians, the Respondent's strategy and the 622 report. (Adm. Ex. 15). Mr. Oh-Willeke testified that the Respondent never responded to his November 18, 2002 letter. (Tr. 48).
On January 23, 2003, Dr. Brightwell sent the Respondent a 622 report in support of the Wainwright matter. (Adm.Ex. 11). Dr. Brightwell's report stated that the defendants had done an adequate assessment of the deceased while she was in the hospital and her care was consistent with community standards. (Adm.Ex. 11). The Respondent continued to work with Dr. Brightwell and showed him specifically what he needed in the 622 report. (Tr. 131). There were at least four subsequent reports. (Tr. 131). As of February 5, 2003, the Respondent had not filed an affidavit or a 622 report. On that date, the judge entered an order dismissing the negligence allegations of the complaint on the basis of the Respondent's failure to comply with 735 ILCS 5/2-622(a)(1). (Adm. Ex. 18, p. 192). The Respondent did not inform Mr. Wainwright or Mr. Oh-Willeke of the order. The Respondent did not file a motion asking the court to reconsider or vacate the order. The Respondent received a final 622 report from Dr. Brightwell on August 6, 2003. (Tr. 132). The Respondent stated that the final report was still not sufficient and that he never received a sufficient report. (Tr. 133).
Prior to that, Mr. Oh-Willeke sent a letter to the Respondent dated May 23, 2003. (Adm. Ex. 20). In the letter, Mr. Oh-Willeke expressed concern about the lack of communication regarding the Wainwright matter. (Adm. Ex. 20). The letter mentioned several dates when Mr. Oh-Willeke left messages for the Respondent but he received no answers. (Adm. Ex. 20).
Mr. Oh-Willeke testified that the Respondent did not answer this letter. (Tr. 53). On June 2, 2003, Mr. Oh-Willeke again sent a letter to the Respondent expressing extreme concern over the lack of communication with the Respondent. (Adm. Ex. 21). Mr. Oh-Willeke testified that the Respondent did not answer the June 2, 2003 letter. (Tr. 53). Mr. Oh-Willeke sent a similar letter to the Respondent on June 9, 2003. (Adm. Ex. 22). Again, Mr. Oh-Willeke testified that the Respondent did not reply to the June 9, 2003 letter. (Tr. 54).
The Respondent testified that defendants Johnson, Newman and Blessing Hospital were dismissed from the lawsuit as a result of the Respondent's inability to get a 622 report. (Tr. 133). The Respondent learned in September 2003 that the lawsuit had been dismissed on July 16, 2003. (Tr. 139).
On September 29, 2003, Mr. Oh-Willeke sent a letter to the Respondent terminating his services. (Adm. Ex. 23). Mr. Oh-Willeke first learned of the dismissal when the Respondent sent him copies of certain pleadings three months later, in September 2003. (Adm. Ex. 23).
Thomas Burney has been a practicing attorney since 1977. Mr. Burney concentrates his practice in land use and zoning municipalities. Mr. Burney has known the Respondent for nine years. Mr. Burney has had the opportunity to work with the Respondent regarding county board issues. Mr. Burney testified that the Respondent's reputation is one of knowledge and the highest integrity. (Tr. 141-143).
John M. Falasz
John M. Falasz has been licensed to practice law in Illinois since 1957. Mr. Falssz is a trial attorney and a member of the plaintiff's bar in Illinois with the Respondent. Mr. Falasz has
known the Respondent for over 25 years. Mr. Falasz testified that the Respondent's reputation for truth, honesty and integrity is excellent. Mr. Falasz did not read the complaint in this matter though upon learning about the matter, Mr. Falasz did not change his opinion of the Respondent. (Tr. 143-147).
James Steigert is an interior designer, space planner and works in residential architecture. Mr. Steigert has known the Respondent for 13 years. Mr. Steigert lives in the Respondent's community. Mr. Steigert is a trustee for the Village of Algonquin while the Respondent is a McHenry County Board Member. Mr. Steigert testified that he is familiar with the Respondent's reputation for truth and integrity and stated that people trust him implicitly. (Tr. 147-150).
The Respondent has been a lawyer for over 30 years. The Respondent has not previously been disciplined. In addition to his license to practice law in Illinois, the Respondent has a patent law license. The Respondent is authorized to practice before the United States Court of Customs and Appeals and the Patent Tribunal. The Respondent has primarily been a sole practitioner from 1975 until present. (Tr. 106-108).
The Respondent stated that he performs a significant amount of pro bono work, specifically for Senior Services. The Respondent is active in the Algonquin, Lake in the Hills Rotary. The Respondent does a lot of legal work for the Rotary Charitable Foundation. The Respondent does pro bono legal work for the Lake in the Hills Noon Club Charitable Organization. The Respondent has done legal work for the Springbrook Community Church and the Cornerstone Community Church. Since the Respondent received his law license, he has
worked for the Illinois State Baptist Association and the Chicago Metropolitan Baptist Association. (Tr. 151?156)
The Respondent testified he has performed significant pro bono work for the Baptist Joint Committee of Public Affairs as well as the YMCA. The Respondent explained he assisted his local park district for the formation of a park district in the greater Algonquin area. The Respondent helped form the Chicago Urban Mission Foundation and continues to provide that foundation with legal services and serves on their board. The Respondent also formed the Uptown Urban Impact Foundation that donates money to displaced persons in the Uptown Area. (Tr. 156- 159).
The Respondent testified he has been a member of the McHenry County Board for ten years. The Respondent explained he is also a member of the Economic Development Commission of the Village of Algonquin. The Respondent testified he is a Mason. (Tr. 159-161).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). It is the responsibility of the Hearing Panel to determine the credibility and believability of the witnesses, weigh the conflicting testimony, draw reasonable inferences, and make factual findings based upon all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 308 (1993).
The merits of a case do not negate the Respondent's obligation to provide thorough representation to a client and to keep the client informed about the status of a matter.
Therefore, we find the Respondent was negligent and failed to provide his client, Mr. Wainwright, competent representation regarding the suit the Respondent. Further, we find that the Respondent failed to reasonably inform Mr. Wainwright or Mr. Oh-Willeke about the status of the case. The Respondent also failed to respond to Mr. Oh-Willeke's letters and messages requesting information about the case in a reasonable manner. The reputation of the legal community is diminished when a lawyer neglects a case to such an extent and fails to comply with Supreme Court Rules. See In re Smith, 168 Ill. 2d 269, 659 N.E.2d 896 (1995); In re Ring, 141 Ill. 2d 128, 565 N.E.2d 983 (1990).
Specifically, we find that the Respondent:
failed to provide competent representation to a client in violation of Rule 1.1(a) of the Illinois Rules of Professional Conduct;
failed to keep a client reasonably informed about the status of a matter or to promptly comply with reasonable requests for information in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct;
engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and
engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.
However, we find that the Administrator failed to prove by clear and convincing evidence that the Respondent: 1) failed to act with reasonable diligence and promptness in representing a client; 2) failed to make reasonable efforts to expedite litigation consistent with the interests of his client; and 3) engaged in dishonest or fraudulent conduct.
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. In re Howard, 188 Ill. 2d 423, 434,
721 N.E.2d 1126 (1999). We should not recommend a sanction, which will neither benefit the public or the legal profession. In re Leonard, 64 Ill. 2d 398, 406, 356 N.E.2d 62 (1976). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 298, 583 N.E.2d 526 (1991). The Supreme Court has previously recognized that neglect of an attorney's duties to his client is misconduct warranting discipline. In re Fox, 122 Ill. 2d 402, 522 N.E.2d 1229 (1988). The Administrator has recommended that the Respondent be suspended from the practice of law for thirty days. However, in cases involving neglect of three or fewer civil client matters, attorneys have more often been censured where there is no moral turpitude involved and mitigating factors are present. In re Harris, 03 CH 82, M.R. 19632 (September 27, 2004). We consider the Respondent's thirty years of law practice and his significant pro bono involvement in his community and with charitable organizations to be significant mitigation. We also consider the following case law as guidance for making the proper recommendation.
In In re Winn, the respondent was charged with three counts of negligence and making false representations regarding the status of a client matter. There, the respondent conceded that he failed to proceed with a lawsuit he filed causing the suit to be dismissed for want of prosecution. Further, the respondent failed to comply with a discovery order and made several misrepresentations regarding the status of a case to his clients. The Supreme Court determined that given the proven misconduct, significant mitigating evidence and lack of aggravating evidence, that a censure was the appropriate sanction. Further, the Court agreed with the Hearing Board when it stated that there had been no showing of corrupt motive or moral turpitude. In re Winn, 103 Ill.2d 334, 469 N.E.2d 198 (1984).
In In re Kink, 92 Ill. 2d 293, 442 N.E.2d 2006 (1982), the respondent neglected matters for three clients, he was less than candid with one client and remained inaccessible despite attempts by clients to contact him. The respondent was cooperative and candid during the disciplinary proceedings, had an outstanding record of involvement in civic and religious programs, and a number of witnesses testified as to his excellent reputation in the community. In imposing a censure, the Supreme Court stated that the Hearing Board had determined that it was unlikely that events of that kind would happen again and that neither the purpose of safeguarding the public nor the purpose of maintaining the integrity of the legal profession would be served by suspending the respondent. Kink, 92 Ill. 2d at 302-05, 442 N.E.2d at 209-11.
A one-count complaint was filed against the respondent in In re Johnson, 94 CH 275, M.R. 11754 (December 1, 1995). There, the Hearing Board found that the respondent failed to provide competent representation, failed to act with reasonable diligence, failed to keep his client reasonably inform of the lawsuit progress, failed to promptly refund the unearned portion of fee, failed to take reasonable steps to expedite litigation and engaged in conduct which tends to defeat the administration of justice or bring the courts into disrepute. Considering the proven misconduct, the fact that the misconduct was an isolated incident, the respondent had practiced thirty-five years without prior discipline and the Hearing Board found the respondent candid and cooperative throughout the disciplinary process, the Hearing Board recommended that the respondent be censured. The Supreme Court approved the sanction.
By consent, the respondent in In re McConnell was censured after he filed a civil case for a client, which was dismissed due to the respondent's failure to comply with discovery. Further, the respondent falsely told his client that litigation was proceeding on five occasions. There was significant mitigating evidence, including twenty-six years of practice without prior discipline
and extensive public service both within and outside the legal profession. The petition was approved by the Supreme Court. In re McConnell, 98 CH 130, M.R. 15909 (September 29, 1999).
Also by consent, the respondent in In re Harris was censured when he neglected two client matters and failed to adequately communicate with the two clients about the status of their matters. There, the respondent fully cooperated with the Commission and had not been previously disciplined. The Supreme Court approved the sanction of censure given the respondent's admitted misconduct. In re Harris, 03 CH 82, M.R. 19632 (September 27, 2004).
Finally, the respondent in In re Rehberg was censured on a petition by consent after admitting that he neglected a civil matter and misrepresented the status of the matter to the client. In addition, the respondent falsely told the client several times that he had filed a lawsuit on the client's behalf and that the suit was still pending. After considering significant mitigating evidence, including no prior discipline as well as pro bono work and community service, the Hearing Board recommended that the respondent be censured. The Supreme Court approved the petition. In re Rehberg, 02 CH 24, M.R. 18696 (May 22, 2003).
Here, the Respondent engaged in similar misconduct. While we find the Respondent's extensive public service commendable and acknowledge that the Respondent has not been previously disciplined during his thirty years of experience, we also find evidence of aggravation. We find that the Respondent lacked use of best practices and thoroughness. The Respondent showed no remorse for his misconduct. Apparently he considers that there is no harm done because the case was not viable. That principal may apply in legal malpractice actions but not in professional responsibility proceedings. However, Mr. Wainwright may never know if no harm was done. His case was dismissed. The Respondent knew what was required
of him and the time restraints when he accepted the case. Those challenges do not negate the Respondent's failure to comply with the requirements of Civil Procedure or his failure to communicate with his client. Therefore, we find that discipline is warranted.
Upon consideration of the proven misconduct, the applicable caselaw, evidence in mitigation and aggravation, we find that a censure is the appropriate sanction. Similar to the reasoning in In re Kink, we find that it is unlikely that events of this kind will happen again and that neither the purpose of safeguarding the public nor the purpose of maintaining the integrity of the legal profession would be served by suspending the Respondent.
Upon consideration of the above stated cases and the mitigating and aggravating evidence, the Panel recommends that the Respondent be censured.
Date Entered: October 6, 2005