Articles Posted in Legal Ethics

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Nelson, and her codefendants, Hall, Cox, and Ball, were tried simultaneously but in severed bench trials for the armed robbery and stabbing death of Wilson. The prosecution produced five eyewitnesses, who gave generally consistent testimony. Police had followed a blood trail to the four defendants. There was DNA evidence linking defendants to the crime. All were found guilty. The appellate court rejected Nelson's argument that she was denied her sixth amendment right to conflict-free counsel where attorneys from the same law firm represented her and codefendant Hall and that the attorneys, in making their choice of defenses, decided to forgo asserting an innocence defense in favor of pursuing a joint defense of self-defense. The Illinois Supreme Court affirmed, finding that Nelson had not demonstrated an actual conflict. In light of the evidence, Nelson could not show that an innocence defense based on a lack of accountability was a plausible alternative defense. View "People v. Nelson" on Justia Law

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Fee-sharing provisions in otherwise valid retainer agreements between clients and two separate law firms are not unenforceable simply because the primary service performed by one firm is the referral of the clients to the other and the agreements fail to specifically notify clients that each firm has assumed joint financial responsibility for the representation. In 2007-2010, Plaintiff, a Gurnee law firm, was retained by 10 clients for representation under the Workers’ Compensation Act. Plaintiff contracted with attorney Esposito for assistance in representing the clients before the Workers’ Compensation Commission. A letter of understanding was drafted by defendant, confirming that the cases had been referred to defendant by plaintiff, outlining the parties’ respective responsibilities regarding representation of the clients, and specifying that the attorney fees obtained in each case would be split between Plaintiff and Esposito. The agreements did not specifically notify the clients that the lawyers in each firm had assumed joint financial responsibility for the representation. Plaintiff’s breach of contract suit against Esposito was dismissed. The Illinois Supreme Court affirmed the appellate court’s reversal, rejecting an argument that the agreements’ lack of an express statement that the attorneys assumed joint financial responsibility violated Rule 1.5(e) of the Illinois Rules of Professional Conduct and thereby rendered the agreements invalid. View "Ferris, Thompson & Zweig, Ltd. v. Esposito" on Justia Law

Posted in: Contracts, Legal Ethics

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In 2008, defendant was convicted of armed robbery and sentenced, as a habitual criminal, to natural life imprisonment. The appellate court affirmed. In 2011, defendant, through privately retained counsel, filed a postconviction petition, claiming due process violations and ineffective assistance of trial and appellate counsel on multiple grounds. The trial court advanced defendant’s petition to second-stage proceedings. The state moved to dismiss, arguing that the petition was not timely filed; that defendant failed to allege the untimely filing was not due to his culpable negligence; that defendant’s substantive claims were barred by res judicata and waiver and consisted primarily of unsupported, conclusory allegations; and that none of the claims made a substantial showing of a constitutional violation. Defendant’s postconviction counsel filed a response, arguing that the petition was untimely filed because trial counsel failed to inform defendant about the appellate court’s June 3, 2009, decision. In support, defendant attached evidence that the notice of appeal was mailed to his mother, not to defendant. The court dismissed, finding that the record did not substantiate defendant’s claim that his trial counsel suborned perjury and that counsel’s decisions did not rise to the level of deprivation of a constitutional right. The court did not reference timeliness. On appeal, defendant unsuccessfully argued only that his privately retained postconviction counsel did not provide the requisite “reasonable level of assistance” during second-stage proceedings because counsel failed to contest the assertion that defendant’s petition was untimely based on culpable negligence. The Illinois Supreme Court affirmed, stating the reasonable level of assistance standard applies to both retained and appointed postconviction counsel and that counsel met the standard. View "People v. Cotto" on Justia Law

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McVey sued for injuries she sustained after a waitress dropped a tray on her foot. Memorial Hospital of Carbondale treated her. McVey settled the lawsuit for $7,500, then filed a petition to adjudicate liens. The hospital’s lien was $2,891.64. In addition to attorney fees, McVey allegedly incurred litigation costs of $846.66 in securing the settlement. The trial court entered an order recognizing that under the Health Care Services Lien Act (Act) (770 ILCS 23/10), no individual licensed category of health care professional or health care providers may receive more than one-third of the award or settlement, so that the hospital could recover no more than $2,500. The court acknowledged precedent holding, that in order to ensure that a plaintiff receives 30% of the judgment, the computation of the amount available to health care providers should not begin until costs associated with bringing the case and securing payment have been deducted, but refused to deduct attorney fees and costs before calculating the amount available to the hospital. The appellate court reversed and remanded. The Illinois Supreme Court reversed, holding that hospitals are not required to contribute to the costs of litigation. View "McVey v. M.L.K. Enters., LLC" on Justia Law

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Tuzzolino and his law firm represented Coletta. Coletta alleged that, in litigation, Tuzzolino failed to timely disclose expert witnesses; failed to retain needed expert witnesses; advised Coletta to settle for an amount far less than Coletta’s losses; told Coletta that negotiations were continuing after dismissal; and signed settlement documents without informing Coletta. According to Coletta, Tuzzolino offered to pay $670,000 to settle any potential malpractice claim, but never paid. Three months later, shortly before the expiration of the firm’s 2007-08 malpractice policy with ISBA Mutual, Tuzzolino completed a renewal application. In response to: “Has any member of the firm become aware of a past or present circumstance(s), act(s), error(s) or omission(s), which may give rise to a claim that has not been reported?” Tuzzolino checked “no.” Mutual issued the policy. Tuzzolino’s partner, Terpinas, learned of Tuzzolino’s malfeasance a month later, when he received a lien letter from Coletta’s attorney. Terpinas reported the claim to Mutual, which sought rescission and other relief. The circuit court entered summary judgment against Tuzzolino and rescinded the policy, finding that Mutual had no duty to defend Terpinas or the firm against Coletta’s action. The appellate court reversed as to Terpinas, citing the common law “innocent insured doctrine.” The Illinois Supreme Court reinstated the rescission, citing 215 ILCS 5/154, which allows rescission in cases involving misrepresentations “made by the insured or in his behalf,” with an actual intent to deceive or that “materially affect the acceptance of the risk or hazard assumed by the insurer.” View "Ill. State Bar Ass'n Mut. Ins. Co. v. Law Office of Tuzzolino & Terpinas" on Justia Law

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Holt threw eggs on the Katheiser driveway to frighten Kartheiser and his 6 year old daughter. Represented by counsel, she entered a negotiated guilty plea to resisting a peace officer. The other charge was nol-prossed. She was sentenced to 12 months of probation and was ordered to provide documentation of treatment. The court admonished Holt that the agreement involved a “conviction.” Days later, she filed a pro se motion to vacate, stating that she “was told there would be no conviction” and “never had the chance to testify.” Her counsel was allowed to withdraw. The circuit court granted the motion to withdraw the plea and appointed the public defender. The next day, Holt filed a pro se “Petition to Quash … the police report,” claiming tampering with the record, police brutality, and that her children were missing. After several more incidents, Holt was placed in a mental health center. She filed notice of appeal and a “Demand Letter for Formal Correction,” seeking to “hold Tim Brown accountable for ‘Bearing FALSE Witness’ the 8th Great Commandment and for Defamation.” The appellate court affirmed, reasoning that Holt had been found fit to stand trial during the pendency of the appeal so that whether she received effective assistance of counsel during proceedings below was moot. The Illinois Supreme Court affirmed, stating that public interest exception applies to warrant review. Where the evidence clearly indicates that defendant is unfit to stand trial, but a defendant contends that he is fit, counsel is not obligated to argue for a finding of fitness. In doing so, counsel would be violating his duty to the client and suborning a violation of due process. View "People v. Holt" on Justia Law

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Edmonds was admitted to the Illinois bar in 1975. He became a member of St. Mark Church. In1998, Sloan asked Edmonds to rewrite Sloan’s will to benefit St. Mark’s. Edmonds knew Hannah, a lawyer who, in 1992, was suspended for neglecting and misrepresenting client matters, failing to maintain a client trust account, and commingling. In 1994, Hannah was suspended until further order; he never sought reinstatement. Edmonds was unaware of Hannah’s disciplinary status and believed that Hannah was an estate planning expert. Edmonds introduced Hannah to Sloan, who transferred some assets to American Express for Hannah’s management. Sloan’s trust held $3.36 million at one point. Sloan died in 2000. Edmonds acted as executor and trustee. At his direction, the trust and estate bought Range Energy stock recommended by Hannah. Hannah eventually became president and CEO of Range, which, by 2001, held all of Sloan’s personal assets and most of the trust assets. In 2003, the British Columbia Securities Commission suspended trading of Range stock, which ultimately became worthless. Edmonds did not inform St. Mark’s about the situation. The church eventually filed suit. In 2009, the successor trustee closed the trust with a balance of $1,149. The ARDC Hearing Board found that Edmonds breached fiduciary duties, engaged in dishonest conduct, neglected an estate matter associated with the trust, and commingled his funds with client or third-party funds. The Review Board reversed the findings of breach of fiduciary duty and dishonest conduct and recommended that Edmonds be suspended for 60 days. The Illinois Supreme Court imposed a three-month suspension. View "In re Edmonds" on Justia Law

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Powell was adjudicated a disabled adult due to severe mental disabilities in 1997. His parents, Perry and Leona, were appointed as co-guardians of Powell’s person, but were not appointed as guardians of his estate. In 1999, Perry died following surgery. Leona engaged the Wunsch law firm to bring a claim against the doctors and hospital, Leona was appointed special administratrix of Perry’s estate. Wunsch filed a complaint under the Wrongful Death Act on behalf of Leona individually and as administratrix estate. The estate’s only asset was the lawsuit. A 2005 settlement, after attorney fees and costs, amounted to $15,000, which was distributed equally between Leona, Emma (the couple’s daughter) and Powell. The settlement order provided that Powell’s share was to be paid to Leona on Powell’s behalf. Leona placed both shares into a joint account. The probate court was not notified. Wunsch had referred the action to attorney Webb, for continued litigation. Emma waived her rights under a second settlement, Leona and Powell each received $118,000. A check was deposited into the joint account. The order did not provide that Powell’s was to be administered under supervision of the probate court and Powell did not have a guardian of his estate. Wunsch purportedly advised that it was “too much trouble” to go through the probate court for funds every time Leona needed money for Powell. In 2008, Emma petitioned to remove Leona as guardian of Powell’s person. The probate court appointed Emma as guardian of Powell’s person and the public guardian as guardian of his estate. Leona had withdrawn all but $26,000 and provided no accounting. The public guardian sued the attorneys and Leona. The trial court dismissed as to the attorneys, finding that the complaint failed to sufficiently allege defendants owed Powell a duty and to allege proximate cause. The appellate court determined that an attorney retained by a special administrator of an estate to bring a wrongful death action for the benefit of the surviving spouse and next of kin owed a fiduciary duty to those beneficiaries and remanded, with respect to the second settlement. The Illinois Supreme Court affirmed. View "In re the Estate of Powell" on Justia Law

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Radojcic, his daughters, his attorney Helfand, and the office manager for one of his companies, were indicted for 52 financial crimes involving fraud on mortgage lenders. It was also alleged that Radojcic, while owing the IRS more than two million dollars, fraudulently obtained rental checks exceeding $500,000 from the U.S. Department of Housing and Urban Development. After discovery, the state indicated its intent to call Helfand as a witness in exchange for use immunity. Helfand and Radojcic objected, asserting attorney-client privilege, and the trial court struck Helfand’s name from the state’s witness list. The appellate court reversed. The Illinois Supreme Court affirmed, based on the crime-fraud exception to the attorney-client privilege, which applies when a client seeks the services of an attorney in furtherance of criminal or fraudulent activity. Transcripts of grand jury testimony met the standard of providing a reasonable basis to suspect the perpetration, or attempted perpetration, of a crime or fraud by Radojcic and a reasonable basis to suspect that communications with Helfand were in furtherance of the fraudulent scheme. The state met its burden of overcoming the privilege; there was no need to examine Helfand in camera prior before trial testimony. The only attorney-client communications that are subject to disclosure are those related to transactions identified in the indictment. View "People v. Radojcic" on Justia Law

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Karavidas, admitted to practice law in Illinois in 1979, worked for the City of Chicago, the Attorney General, and several law firms. In 1988, he opened his own practice. His father executed will and trust documents prepared by another attorney in 2000, and died later the same day. Karavidas was named executor and successor trustee. His dealings with the estate resulted in charges of conversion of assets entrusted to him; breach of fiduciary obligations; conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Illinois Rules of Professional Conduct; conduct prejudicial to the administration of justice; and conduct tending to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Review Board of the IARDC recommended that charges be dismissed. The Illinois Supreme Court agreed. Before professional discipline may be imposed under Supreme Court Rule 770, the Administrator must demonstrate that the attorney violated the Rules of Professional Conduct. Personal misconduct that falls outside the scope of the Rules may be the basis for civil liability or other adverse consequences, but may not result in professional discipline. View "In re Karavidas" on Justia Law