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Attorney Registration And Disciplinary Commission of Supreme Court of Illinois Issues Amended Complaint Filed Regarding Mark Steven Komessar

Targeted News Service

SPRINGFIELD, Ill., Dec. 19 -- The Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois issued this text of a complaint filed:

In the Matter of:

MARK STEVEN KOMESSAR,

Attorney-Respondent,

No. 3121877.

Commission No. 2012PR00170

FILED --- December 19, 2013

AMENDED COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Peter L. Apostol, pursuant to Supreme Court Rule 753(b), complains of Respondent, Mark Steven Komessar, who was licensed to practice law in Illinois on November 3, 1978, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, and which subjects Respondent to discipline pursuant to Supreme Court Rule 770:

ALLEGATIONS COMMON TO ALL COUNTS

1. At all times alleged in this complaint, Respondent concentrated his law practice in the representation of plaintiffs in personal injury matters, and operated the law firm of "Komessar & Associates, LLC."

2. Since at least 2010, Respondent maintained a client fund account at JP Morgan Chase ending in the four digits 5970. That account was entitled, "Komessar & Associates LLC, IOLTA Trust Account" ("Respondent's client trust account"), and was used by Respondent as the depository of funds belonging to Respondent's clients, third parties, or Respondent.

COUNT I

(Conversion of $5,825.34 and dishonest conduct - Edward Madison and Clarence Dixon)

3. On November 21, 2009, Edward Madison ("Madison") and Clarence Dixon ("Dixon") were involved in an incident in which a vehicle Madison was driving and in which Dixon was a passenger collided with a vehicle operated by Antone Williams ("Williams") at or near the intersection of Colfax and 87th Street in Chicago.

4. On or about November 30, 2009, Respondent agreed to represent Madison and Dixon in a personal injury claim related to the November 21, 2009 car accident. Respondent and Madison and Dixon agreed that Respondent's receipt of a fee would be contingent upon the recovery of an award or settlement, and that the fee would be one-third of any amount recovered. Madison and Dixon signed a contingent fee agreement prepared by Respondent. Respondent also referred Madison and Dixon to Chatham Advanced Pain Relief for chiropractic treatment. Thereafter, Madison and Dixon received treatment from Daniel Cammarano ("Dr. Cammarano"), a chiropractor at Chatham Advanced Pain Relief.

Watch this video.

5. On May 10, 2010, Respondent learned that Williams had not been insured at the time of the November 21, 2009 incident referred to in paragraph three, above. Thereafter, Respondent submitted an uninsured motorist claim to Madison's insurer, State Farm Insurance ("State Farm"), on behalf of Madison and Dixon.

6. On or shortly after June 24, 2010, State Farm paid Chatham Advanced Pain Relief $3,835 for treatment provided to Madison.

7. On or shortly after July 6, 2012 2010, State Farm paid Chatham Advanced Pain Relief $3,085 for treatment provided to Dixon.

8. Prior to August 27, 2010, Madison and Dixon and State Farm agreed that State Farm Insurance would pay Madison and Dixon $5,000 each in settlement of their uninsured motorist claims.

9. On August 27, 2010, State Farm issued its check number 101760721J, which had been made payable to Madison and Respondent's firm in the amount of $5,000. Also on August 27, 2010, State Farm issued its check number 101760722J, which had been made payable to Dixon and Respondent's firm in the amount of $5,000. Check numbers 101760721J and 101760722J represented State Farm's settlement of the uninsured motorist claims with Madison and Dixon. Respondent received check numbers 101760721J and 101760722J shortly thereafter.

10. On August 31, 2010, Respondent endorsed and deposited check numbers 101760721J and 101760722J into his client trust account.

11. Also on August 31, 2010, Respondent caused settlement statements to be prepared on behalf of Madison and Dixon. On or about August 31, 2010, Respondent met with both Madison and Dixon, and presented to them settlement statements containing the following information:

Table omitted. Click here to view: http://www.iardc.org/12PR0170CM.html

12. The August 31, 2010 settlement statements shown in paragraph 11, above, were false, and Respondent knew they were false, in that the settlement statements stated that Dr. Cammarano would be paid $1,666.66 from the settlement of Madison and $1,666.66 from the settlement of Dixon, thereby reducing the net amount of the settlement payable to Madison and Dixon, but Respondent knew that Dr. Cammarano's bills had already been paid by State Farm, as described in paragraphs six and seven, above. Respondent did not intend to pay Dr. Cammarano, and presented the false settlement statements to Madison and Dixon in order to deceive them, to allow Respondent to take a greater portion of their settlement proceeds than the amount permitted by his one-third contingent fee agreement (described in paragraph four, above).

13. On October 27, 2010, prior to any disbursement of the uninsured motorist claim proceeds to or on behalf of Madison or Dixon, the balance in Respondent's client trust account fell to $841.33, as Respondent had drawn checks and/or made withdrawals on the client trust account in payment of his business and personal expenses.

Watch this video.

14. As of October 27, 2010, Respondent was entitled to no more than $3,333.32 of the uninsured motorist claim proceeds in relation to the Madison and Dixon matters ($1,666.66 as to Madison and $1,666.66 as to Dixon), based upon his one-third contingent fee agreement with Madison and Dixon described in paragraph four, above.

15. Between August 31, 2010 and October 27, 2010, Respondent used approximately $5,825.35 in personal injury settlement proceeds belonging to Madison, Dixon, and/or their medical providers, for Respondent's own business or personal purposes, without authority.

16. On January 19, 2011, Respondent paid Madison and Dixon $1,666.68 each, but he did not provide them with the remaining portion of the uninsured motorist claim proceeds.

17. At no time prior to November 26, 2012, the date this matter was referred to Panel A of the Inquiry Board, did Respondent refund the remaining $1,666 owed to Madison and the remaining $1,666 owed to Dixon.

18. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. conversion;

b. breach of fiduciary duty;

a. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by converting client and/or third party funds to his own use and causing the balance in his client trust account to fall below the amount then belonging to clients and/or third parties, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010);

b. failure to promptly deliver to a client or third person funds that the client or third person is entitled to receive, in violation of Rule 1.15(d) of the Illinois Rules of Professional Conduct (2010); and

c. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including converting client and/or third party funds to his own use and presenting settlement statements to his clients containing false statements, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

d. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT II

(Conversion of $13,333.34 - Gerald Caffey)

19. On April 3, 2010, Gerald Caffey ("Caffey") was involved in an incident in which a vehicle Caffey was driving collided with a vehicle operated by Jose Morales ("Morales") at or near 7500 South 75th Street, Chicago.

Watch this video.

20. On or about April 9, 2010, Respondent agreed to represent Caffey in a personal injury claim related to the April 3, 2010 car accident. Respondent and Caffey agreed that Respondent's receipt of a fee would be contingent upon the recovery of an award or settlement, and that the fee would be one-third of any amount recovered. Caffey signed a contingent fee agreement prepared by Respondent. Thereafter, Respondent began negotiating with Morales' insurance carrier, Founders Insurance Company ("Founders Insurance").

21. On April 14, 2010, Respondent filed, on behalf of Caffey, a personal injury action against Morales in the Circuit Court of Cook County. The matter was captioned Caffey v. Morales, case number 2010L004427.

22. On August 9, 2010, Caffey and Founders Insurance agreed that Founders Insurance would pay Caffey $20,000 in settlement of case number 2010L004427.

23. On August 12, 2010, Founders Insurance issued its check number 0100279107, which had been made payable to Caffey and Respondent's firm in the amount of $20,000. Check number 0100279107 represented Founders Insurance's settlement of case number 2010L004427. Respondent received check number 0100279107 shortly thereafter.

24. On August 23, 2010, Respondent endorsed and deposited check number 0100279107 into his client trust account.

25. On October 27, 2010, prior to any disbursement of the personal injury settlement proceeds to or on behalf of Caffey, the balance in Respondent's client trust account fell to $841.33, as Respondent had drawn checks and/or made withdrawals on the client trust account in payment of his business and personal expenses.

26. As of October 27, 2010, Respondent was entitled to no more than $6,666.66 of Caffey's personal injury settlement, based upon his one-third contingent fee agreement with Caffey described in paragraph 20, above.

27. Between August 23, 2010 and October 27, 2010, Respondent used approximately $13,333.34 in personal injury settlement proceeds belonging to Caffey and/or his medical providers, for Respondent's own business or personal purposes, without authority.

28. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. conversion;

b. breach of fiduciary duty;

a. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by converting client and/or third party funds to his own use and causing the balance in his client trust account to fall below the amount then belonging to clients and/or third parties, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010); and

b. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including converting client and/or third party funds to his own use, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

c. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT III

(Conversion of $14,382.20 - Willie Edwards, Alicia Williams, and Courtney Isom)

29. On March 24, 2007, Willie Edwards ("Edwards"), Alicia Williams ("Williams"), and Courtney Isom ("Isom") were involved in an incident in which a vehicle Edwards was driving and in which Williams and Isom were passengers collided with a vehicle operated by Frank Johnson ("Johnson") at or near the intersection of Jackson and Laramie in Chicago.

30. On April 2, 2007, Respondent agreed to represent Edwards, Williams, and Isom in a personal injury claim related to the March 24, 2007 car accident. Respondent and Edwards, Williams, and Isom agreed that Respondent's receipt of a fee would be contingent upon the recovery of an award or settlement, and that the fee would be one-third of any amount recovered. Edwards, Williams, and Isom signed a contingent fee agreement prepared by Respondent.

31. On February 13, 2009, Respondent, on behalf of Edwards, Williams, and Isom, filed a personal injury lawsuit against Johnson in the Circuit Court Of Cook County. The matter was docketed as Edwards v. Johnson, case number 09 M1 300464.

32. On or about February 27, 2009, Respondent learned that Johnson had not been insured at the time of the March 24, 2007 incident referred to in paragraph 29, above. Thereafter, Respondent submitted an uninsured motorist claim to Edwards' insurer, Safeway Insurance, on behalf of Edwards, Williams, and Isom.

33. On March 16, 2010, with the parties having failed to reach a settlement on the uninsured motorist claim, Respondent demanded arbitration on behalf of Edwards, Williams, and Isom. The matter was assigned to an arbitrator and docketed as Edwards v. Safeway Insurance, American Arbitration Association, case number 51-220-00512-10.

34. On October 5, 2010, the arbitrator in case number 51-220-00512-10 awarded $3,500 to Edwards, $12,000 to Williams, and $7,500 to Isom, in the uninsured motorist claim.

35. On October 26, 2010, Safeway Insurance issued the following checks in payment of the uninsured motorist claim, which had been made payable to both Respondent's law firm and the persons listed below:

Table omitted. Click here to view: http://www.iardc.org/12PR0170CM.html

36. The checks listed in paragraph 35, above, represented the payment by Safeway Insurance of the uninsured motorist claim, with one-third being payable to Respondent for his legal fees, and the remaining two-thirds being payable to Edwards, William, Isom, and/or their medical providers.

37. On or about October 28, 2010, Respondent received the checks listed in paragraph 35, above. On October 28, 2010, Respondent endorsed the checks and deposited a total of $23,000 in uninsured motorist claim proceeds into his client trust account.

38. On November 19, 2010, prior to any disbursement of the uninsured motorist claim proceeds to or on behalf of Edwards, Williams, or Isom, the balance in Respondent's client trust account fell to $951.13, as Respondent had drawn checks and/or made withdrawals on the client trust account in payment of his business and personal expenses.

39. As of November 19, 2010, Respondent was entitled to no more than $7,666.66 of the uninsured motorist claim proceeds in the Edwards, Williams, and Isom matters ($1,166.66 as to Edwards, $4,000 as to Williams, and $2,500 as to Isom), based upon his one-third contingent fee agreement described in paragraph 30, above.

40. Between October 28, 2010 and November 19, 2010, Respondent used approximately $14,382.20 of the settlement funds belonging to Edwards, Williams, Isom, and/or their medical providers, for Respondent's own business or personal purposes, without authority.

41. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. conversion;

b. breach of fiduciary duty;

a. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by converting client and/or third party funds to his own use and causing the balance in his client trust account to fall below the amount then belonging to clients and/or third parties, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010); and

b. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including converting client and/or third party funds to his own use, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

c. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT IV

(Conversion of $5,433.34 -Amelia Thompson-Daniels)

42. On March 5, 2009, Amelia Thompson-Daniels ("Thompson-Daniels") was involved in an incident in which a vehicle Thompson-Daniels was driving collided with a vehicle operated by Michael Hughes ("Hughes") at or near 444 East 79th Street in Chicago.

43. On March 10, 2009, Respondent agreed to represent Thompson-Daniels in a personal injury claim related to the March 5, 2009 car accident. Respondent and Thompson-Daniels agreed that Respondent's receipt of a fee would be contingent upon the recovery of an award or settlement, and that the fee would be one-third of any amount recovered. Thompson-Daniels signed a contingent fee agreement prepared by Respondent.

44. On or about July 8, 2009, Respondent learned that Hughes had not been insured at the time of the March 5, 2009 incident referred to in paragraph 42, above. Thereafter, Respondent submitted an uninsured motorist claim to Thompson-Daniels' insurer, First Acceptance Insurance, on behalf of Thompson-Daniels.

45. Prior to July 1, 2010, Thompson-Daniels and First Acceptance Insurance agreed that First Acceptance Insurance would pay Thompson-Daniels $9,412 in settlement of the uninsured motorist claim.

46. On July 1, 2010, First Acceptance Insurance issued its check number 335421, which had been made payable to Thompson-Daniels and Respondent's law firm in the amount of $9,412. Check number 335421 represented First Acceptance Insurance's settlement of the uninsured motorist claim with Thompson-Daniels. Respondent received check number 335421 shortly thereafter.

47. On July 6, 2010, Respondent endorsed and deposited check number 335421 into his client trust account.

48. On October 27, 2010, prior to any disbursement of the uninsured motorist claim proceeds to or on behalf of Thompson-Daniels, the balance in Respondent's client trust account fell to $841.33, as Respondent had drawn checks and/or made withdrawals on the client trust account in payment of his business and personal expenses.

49. As of October 27, 2010, Respondent was entitled to no more than $3,137.33 of Thompson-Daniels' settlement, based upon his one-third contingent fee agreement with Thompson-Daniels described in paragraph 43, above.

50. Between July 6, 2010 and October 27, 2010, Respondent used approximately $5,433.34 in uninsured motorist claim proceeds belonging to Thompson-Daniels and/or her medical providers, for Respondent's own business or personal purposes, without authority.

51. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. conversion;

b. breach of fiduciary duty;

a. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by converting client and/or third party funds to his own use and causing the balance in his client trust account to fall below the amount then belonging to clients and/or third parties, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010); and

b. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including converting client and/or third party funds to his own use, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

c. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT V

(Conversion of $4,758.67 - Milton G.)

52. On May 10, 2009, Milton G. ("Milton"), a 16 year-old minor, was involved in an incident in which a vehicle Milton was driving collided with a vehicle operated by Larry Hoover, Jr. ("Hoover") at or near 1100 Sibley Boulevard, in Calumet City, Illinois.

53. In or about October 2009, Respondent agreed to represent Milton in a personal injury claim related to the May 10, 2009 car accident. Respondent and Milton's mother, Gloria G. ("Gloria"), agreed that Respondent's receipt of a fee would be contingent upon the recovery of an award or settlement, and that the fee would be one-third of any amount recovered. Gloria signed a contingent fee agreement prepared by Respondent.

54. Starting in or about late October 2009, Respondent began settlement discussions on behalf of Milton with Swift Transportation, the company that owned the vehicle driven by Hoover at the time of the May 10, 2009 car accident.

55. Prior to August 13, 2010, Milton (through his mother, Gloria) and Swift Transportation agreed that Swift Transportation would pay Milton$8,400 in settlement of the personal injury claim related to the May 10, 2009 car accident.

56. On August 13, 2010, Swift Transportation issued its check number 50088208, which had been made payable to Milton and Respondent's firm in the amount of $8,400. Check number 50088208 represented Swift Transportation's settlement of the personal injury claim with Milton. Respondent received check number 50088208 shortly thereafter.

57. On August 18, 2010, Respondent endorsed and deposited check number 50088208 into his client trust account.

58. On October 27, 2010, prior to any disbursement of the personal injury settlement proceeds to or on behalf of Milton, the balance in Respondent's client trust account fell to $841.33, as Respondent had drawn checks and/or made withdrawals on the client trust account in payment of his business and personal expenses.

59. As of October 27, 2010, Respondent was entitled to no more than $2,800 of Milton's personal injury settlement, based upon his one-third contingent fee agreement with Milton described in paragraph 53, above.

60. Between August 18, 2010 and October 27, 2010, Respondent used approximately $4,758.67 in personal injury settlement proceeds belonging to Milton and/or his medical providers, for Respondent's own business or personal purposes, without authority.

61. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. conversion;

b. breach of fiduciary duty;

a. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by converting client and/or third party funds to his own use and causing the balance in his client trust account to fall below the amount then belonging to clients and/or third parties, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010); and

b. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including converting client and/or third party funds to his own use, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

c. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT VI

(Conversion of $5,446.14 - Rochelle Prather)

62. On October 22, 2009, Rochelle Prather ("Prather") was involved in an incident in which a vehicle Prather was driving collided with a vehicle operated by Zachary Coleman ("Coleman") at or near 11200 South Halsted Street, Chicago.

63. On October 29, 2009, Respondent agreed to represent Prather in a personal injury claim related to the October 22, 2009 car accident. Respondent and Prather agreed that Respondent's receipt of a fee would be contingent upon the recovery of an award or settlement, and that the fee would be one-third of any amount recovered. Prather signed a contingent fee agreement prepared by Respondent. Thereafter, Respondent submitted a personal injury claim to Progressive Universal Insurance Company ("Progressive Insurance"), which had insured the vehicle driven by Coleman.

64. Prior to August 27, 2010, Prather and Progressive Insurance agreed that Progressive Insurance would pay Prather $13,300, $10,720.80 of which would be in settlement of Prather's bodily injury claims, and the remaining $2,579.20 would be in settlement of medical liens related to treatment received by Prather.

65. On August 27, 2010, Progressive Insurance issued the following checks, which represented Progressive Insurance's settlement of the medical liens described in paragraph 64, above:

Table omitted. Click here to view: http://www.iardc.org/12PR0170CM.html

66. On August 27, 2010, Progressive Insurance issued its check number 467472081, which had been made payable to Prather and Respondent's law firm in the amount of $10,720.80. Check number 467472081 represented Progressive Insurance's settlement of the bodily injury claim with Prather. Respondent received check number 467472081 shortly thereafter.

67. On August 31, 2010, Respondent endorsed and deposited check number 467472081 into his client trust account.

68. On October 27, 2010, prior to any disbursement of the bodily injury claim proceeds to or on behalf of Prather, the balance in Respondent's client trust account fell to $841.33, as Respondent had drawn checks and/or made withdrawals on the client trust account in payment of his business and personal expenses.

69. As of October 27, 2010, Respondent was entitled to no more than $4,433.33 of the bodily injury claim proceeds, based upon his one-third contingent fee agreement with Prather as to the $13,300 total settlement, as described in paragraph 63, above.

70. Between August 31, 2010 and October 27, 2010, Respondent used approximately $5,446.14 in settlement proceeds belonging to Prather and/or her medical providers, for Respondent's own business or personal purposes, without authority.

71. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. conversion;

b. breach of fiduciary duty;

a. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by converting client and/or third party funds to his own use and causing the balance in his client trust account to fall below the amount then belonging to clients and/or third parties, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010); and

b. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including converting client and/or third party funds to his own use, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

c. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT VII

(Conversion of $1,470 - Charles Kemp)

72. On July 31, 2009, Charles Kemp ("Kemp") was involved in an incident in which a vehicle Kemp was driving collided with a vehicle operated by Mark Snow ("Snow") at or near 8010 South Ashland, Chicago.

73. On August 1, 2009, Respondent agreed to represent Kemp in a personal injury claim related to the July 31, 2009 car accident. Respondent and Kemp agreed that Respondent's receipt of a fee would be contingent upon the recovery of an award or settlement, and that the fee would be one-third of any amount recovered. Kemp signed a contingent fee agreement prepared by Respondent.

74. On or about February 2, 2010, Respondent learned that Snow had not been insured at the time of the July 31, 2009 incident referred to in paragraph 72, above. Thereafter, Respondent submitted an uninsured motorist claim to Kemp's insurer, Founders Insurance Company ("Founders Insurance"), on behalf of Kemp.

75. On or about March 8, 2010, with the parties having failed to reach a settlement on the uninsured motorist claim, Respondent demanded arbitration on behalf of Kemp. The matter was assigned to an arbitrator and docketed as Kemp v. Founders Insurance, American Arbitration Association, case number 51-220-00480-10.

76. On December 17, 2010, Kemp and Founders Insurance agreed that Founders Insurance would pay Kemp $10,000 in settlement of the uninsured motorist claim.

77. On March 1, 2011, prior to the receipt of any settlement funds on Kemp's behalf, Respondent wrote the following checks from his client trust account:

Table omitted. Click here to view: http://www.iardc.org/12PR0170CM.html

78. Check numbers 1286 and 1289 represented Respondent's payment of medical liens on behalf of Kemp.

79. Also on March 1, 2011, check numbers 1286 and 1289 cleared Respondent's client trust account.

80. As of March 1, 2011, Respondent had used $1,470 in funds belonging to other clients and/or third parties to pay medical liens on behalf of Kemp, without authority.

81. On March 7, 2011, Founders Insurance issued its check number 0100293181, which had been made payable to Kemp and Respondent's firm in the amount of $10,000. Check number 0100293181 represented Founders Insurance's settlement of the uninsured motorist claim with Kemp. Respondent received check number 0100293181 shortly thereafter.

82. On March 18, 2011, Respondent endorsed and deposited check number 0100293181 into his client trust account.

83. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. conversion;

b. breach of fiduciary duty;

a. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by converting client and/or third party funds to his own use and causing the balance in his client trust account to fall below the amount then belonging to clients and/or third parties, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010); and

b. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including converting client and/or third party funds to his own use, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010). c. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT VIII

(Conversion of $2,516.67 - David Thompson)

84. On June 4, 2010, David Thompson ("Thompson") was involved in an incident in which a vehicle Thompson was driving collided with a vehicle operated by Moolike Bennett ("Bennett") at or near the intersection of 87th and Lafayette in Chicago.

85. On June 11, 2010, Respondent agreed to represent Thompson in a personal injury claim related to the June 4, 2010 car accident. Respondent and Thompson agreed that Respondent's receipt of a fee would be contingent upon the recovery of an award or settlement, and that the fee would be one-third of any amount recovered. Thompson signed a contingent fee agreement prepared by Respondent.

86. On or about August 12, 2010, Respondent learned that Bennett had not been insured at the time of the June 4, 2010 incident referred to in paragraph 84, above. Thereafter, Respondent submitted an uninsured motorist claim to Thompson's insurer, State Farm Insurance ("State Farm").

87. Prior to October 8, 2010, Thompson and State Farm agreed that State Farm would pay Thompson $5,037 in settlement of the uninsured motorist claim. Pursuant to the terms of Thompson's insurance policy, State Farm also paid $5,000 to Thompson's medical providers for treatment provided to Thompson in connection with the car accident.

88. On October 8, 2010, State Farm issued its check number 1-01-983-917-J, which had been made payable to Thompson and Respondent's law firm in the amount of $5,037. Check number 1-01-983-917-J represented State Farm's settlement of the uninsured motorist claim with Thompson. Respondent received check number 1-01-983-917-J shortly thereafter.

89. On October 12, 2010, Respondent endorsed and deposited check number 1-01-983-917-J into his client trust account.

90. On October 27, 2010, prior to any disbursement of the uninsured motorist claim proceeds to or on behalf of Thompson, the balance in Respondent's client trust account fell to $841.33, as Respondent had drawn checks and/or made withdrawals on the client trust account in payment of his business and personal expenses.

91. As of October 27, 2010, Respondent was entitled to no more than $1,679 of Thompson's uninsured motorist claim settlement, based upon his one-third contingent fee agreement with Thompson described in paragraph 85, above.

92. Between October 12, 2010 and October 27, 2010, Respondent used at least $2,516.67 in uninsured motorist claim proceeds belonging to Thompson, for Respondent's own business or personal purposes, without authority.

93. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. conversion;

b. breach of fiduciary duty;

a. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by converting client and/or third party funds to his own use and causing the balance in his client trust account to fall below the amount then belonging to clients and/or third parties, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010); and

b. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including converting client and/or third party funds to his own use, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

c. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT IX

(Conversion of $3,925.34 - Midwest Therapy Center)

94. On October 29, 2009, Lanard Gordon ("Gordon") and Tabatha Joseph ("Joseph") were involved in an incident in which a vehicle Gordon was driving and in which Joseph was a passenger collided with a vehicle operated by Ursulad Truss ("Truss") at or near 9624 South Loomis Street, Chicago.

95. On or about November 3, 2009, Respondent agreed to represent Gordon and Joseph in a personal injury claim related to the October 29, 2009 car accident. Respondent and Gordon and Joseph agreed that Respondent's receipt of a fee would be contingent upon the recovery of an award or settlement, and that the fee would be one-third of any amount recovered. Gordon and Joseph signed a contingent fee agreement prepared by Respondent. Thereafter, Respondent submitted a personal injury claim to Empire Fire and Marine Insurance Company ("Empire Insurance"), the insurance carrier for Truss. Gordon and Joseph also received medical treatment at Midwest Therapy Center.

96. As of July 26, 2010, Gordon and Joseph had incurred $2,212 and $1,807.20 in medical bills, respectively, from Midwest Therapy Center.

97. Prior to July 29, 2010, Gordon and Joseph and Empire Insurance agreed that Empire Insurance would pay Gordon and Joseph $7,000 and $6,000, respectively, in settlement of the personal injury claim.

98. On July 29, 2010, Empire Insurance issued its check number 5635074, which had been made payable to Gordon and Respondent's firm in the amount of $7,000. Also on July 29, 2010, Empire Insurance issued its check number 5635075, which had been made payable to Joseph and Respondent's firm in the amount of $6,000. Check numbers 5635074 and 5635075 represented Empire Insurance's settlement of the personal injury claim with Gordon and Joseph. Respondent received check numbers 5635074 and 5635075 shortly thereafter.

99. On August 3, 2010, Respondent endorsed and deposited check numbers 5635074 and 5635075 into his client trust account, for a total deposit of $13,000.

100. On or about August 24, 2010, Respondent issued his check number 1226 from his client trust account, which had been made payable to Gordon in the amount of $2,100. He also issued his check number 1225 from his client trust account, which had been made payable to Joseph in the amount of $1,800. Check numbers 1226 and 1225 represented the payment of settlement proceeds to Gordon and Joseph, less Respondent's fees and costs and payments to medical providers.

101. On October 27, 2010, prior to any disbursement of the personal injury claim proceeds to Midwest Therapy Center, the balance in Respondent's client trust account fell to $841.33, as Respondent had drawn checks and/or made withdrawals on the client trust account in payment of his business and personal expenses.

102. As of October 27, 2010, Respondent was entitled to no more than $4,333.33 from the settlements of Gordon and Joseph ($2,333.33 as to Gordon and $2,000 as to Joseph), based upon his one-third contingent fee agreement with Gordon and Joseph described in paragraph 95, above.

103. Between August 3, 2010 and October 27, 2010, Respondent used approximately $3,925.34 in uninsured motorist claim proceeds belonging to Midwest Therapy Center, for Respondent's own business or personal purposes, without authority.

104. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. conversion;

b. breach of fiduciary duty;

c. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by converting client and/or third party funds to his own use and causing the balance in his client trust account to fall below the amount then belonging to clients and/or third parties, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010); and

d. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including converting client and/or third party funds to his own use, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

e. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT X

(Failure to respond to lawful demands for information from the ARDC)

105. The Administrator realleges the allegations contained in paragraphs one through 103, above.

106. On March 11, 2011, the Administrator received a request for investigation from Elida Sanchez ("Sanchez"), a representative for a collection agency, relating to Respondent's handling of settlement funds during his representation of Gerald Caffey ("Caffey") in a personal injury matter. Based upon Sanchez's allegations, the Administrator docketed investigation number 2011IN01056 into Respondent's alleged conduct.

107. On December 8, 2011, the Administrator issued a subpoena duces tecum requiring Respondent, in part, to appear for a sworn statement and produce documents related to his representation of Caffey ("Caffey file"), on January 10, 2012. Respondent was personally served with the subpoena on December 15, 2011.

108. On January 10, 2012, Respondent appeared for his sworn statement, but he did not produce the Caffey file, as required by the Administrator's December 8, 2011 subpoena. Respondent testified that he would produce the Caffey file following his sworn statement.

109. As of January 23, 2012, Respondent had not produced the Caffey file. On January 23, 2012, the Administrator sent Respondent a letter requesting that Respondent produce the Caffey file, as required by the December 8, 2011 subpoena.

110. As of March 30, 2012, Respondent had not produced the Caffey file. On March 30, 2012, the Administrator issued a subpoena requiring Respondent to produce documents related to his representation of various clients, including Caffey, by April 13, 2012. Respondent received the subpoena by certified mail shortly thereafter.

111. Prior to April 27, 2012, Respondent produced various documents requested by the March 30, 2012 subpoena, but he did not produce the Caffey file. On April 27, 2012, the Administrator sent Respondent a letter requesting that Respondent produce the Caffey file, as required by the December 8, 2011 and March 30, 2012 subpoenas.

112. On May 8, 2012, Respondent sent a letter to the Administrator claiming that he had already produced the Caffey file, but that he would provide another copy later that week.

113. As of July 27, 2012, Respondent had not produced the Caffey file. On July 27, 2012, the Administrator sent Respondent a letter requesting additional information related to his handling of funds on behalf of various clients, by August 10, 2012. In addition, the Administrator issued a subpoena requiring Respondent to produce documents related to his representation of Clyde Burt ("Burt file") and Gerald Caffey, by August 10, 2012. Respondent received the July 27, 2012 letter and subpoena shortly thereafter.

114. As of August 10, 2012, Respondent had not produced either the Caffey or Burt files, nor had he responded to the Administrator's July 27, 2012 letter requesting additional information. On August 10, 2012, Respondent sent a letter to the Administrator acknowledging receipt of the Administrator's July 27, 2012 letter and stating that Respondent would be "gathering the materials and forwarding them" to the Administrator "as quickly as [he was] able."

115. As of November 26, 2012, the date this matter was referred to Panel A of the Inquiry Board, Respondent had not produced the Caffey or Burt files, nor had he responded to the Administrator's July 27, 2012 letter requesting additional information about investigation number 2011IN01056.

116. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. knowingly failing to respond to lawful demands for information from a disciplinary authority, in violation of Rule 8.1(b) of the Illinois Rules of Professional Conduct (2010); and

b. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

c. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

WHEREFORE, the Administrator requests that this case be assigned to a panel of the Hearing Board, that a hearing be conducted, that the panel make findings of fact and conclusions of fact and law and a recommendation for such discipline as is warranted.

Peter L. Apostol

Counsel for Administrator

One Prudential Plaza

130 East Randolph Drive, Suite 1500

Chicago, IL 60601

Telephone: (312) 565-2600

Respectfully submitted,

Jerome Larkin, Administrator

Attorney Registration and

Disciplinary Commission

By: Peter L. Apostol

TNS 18DejucosGrace-131226-30FurigayJane-4588606 30FurigayJane

Copyright: (c) 2013 Targeted News Service
Wordcount: 6479



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