{ "id": 3152682, "name": "In re ROBERT JOHN HEILGEIST, Attorney, Respondent", "name_abbreviation": "In re Heilgeist", "decision_date": "1984-10-03", "docket_number": "No. 59671", "first_page": "453", "last_page": "465", "citations": [ { "type": "official", "cite": "103 Ill. 2d 453" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "69 Ill. 2d 355", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5455585 ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0355-01" ] }, { "cite": "69 Ill. 2d 343", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5456852 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/69/0343-01" ] }, { "cite": "85 Ill. 2d 318", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469377 ], "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0318-01" ] }, { "cite": "78 Ill. 2d 276", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074610 ], "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0276-01" ] }, { "cite": "77 Ill. 2d 205", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490908 ], "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0205-01" ] }, { "cite": "402 Ill. 120", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2615706 ], "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill/402/0120-01" ] }, { "cite": "358 Ill. 69", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5279204 ], "opinion_index": 0, "case_paths": [ "/ill/358/0069-01" ] }, { "cite": "8 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2715424 ], "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0373-01" ] } ], "analysis": { "cardinality": 861, "char_count": 20697, "ocr_confidence": 0.718, "pagerank": { "raw": 7.371480882347078e-08, "percentile": 0.44190568639329936 }, "sha256": "b7b5b2f5606ee8ef3ef07032dc13104f8b111dfb3aab6d7033be776b6ff4cdb0", "simhash": "1:461e363a9adc9b4c", "word_count": 3414 }, "last_updated": "2023-07-14T22:46:40.164441+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ROBERT JOHN HEILGEIST, Attorney, Respondent." ], "opinions": [ { "text": "JUSTICE CLARK\ndelivered the opinion of the court:\nThe respondent, Robert John Heilgeist, was admitted to the Illinois bar on November 29, 1955. On November 12, 1981, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against the respondent alleging misconduct arising out of his dealings with two clients, Waldemar and Christel Hein. The Hearing Board recommended that respondent be suspended from the practice of law for 18 months. Respondent filed exceptions to the Hearing Board\u2019s recommendations. The Review Board of the Attorney Registration and Disciplinary Commission reviewed the matter and filed a report finding that respondent had \u201cengaged in the creation of false evidence,\u201d and that respondent had not failed to withdraw as the Heins\u2019 counsel in violation of the Code of Professional Responsibility. The Review Board recommended that respondent be censured. This court allowed the Administrator leave to file exceptions to the report of the Review Board.\nSince the respondent, in his brief before this court, adopted the Administrator\u2019s statement of facts as contained in the Administrator\u2019s brief that was filed before the Review Board, we will also accept that statement of facts.\nOn May 25, 1978, Waldemar and Christel Hein consulted respondent regarding their rights arising out of an April 10, 1977, construction agreement with E. W. Wiswald Builders. The Heins presented respondent with the construction agreement, a list of items not properly or timely completed, various materialmen\u2019s liens, and pictures of the building.\nAccording to the Heins, respondent advised them that they would be successful in a contract action against Wiswald and suggested that they terminate the construction agreement. When Waldemar Hein objected due to the further delay incident to such action, respondent suggested that the building could be completed by August 1, 1978, by Artisan Construction. Artisan Construction was an assumed name for a business being conducted by George Radtke, the fiance of respondent\u2019s secretary. The Heins agreed to follow respondent\u2019s advice and also to pay respondent a $500 retainer fee for his legal services, which Christel Hein sent to respondent on May 26,1978.\nWithin a few days of the initial conference, respondent personally observed the serious construction problems. The building had been \u201cred-tagged\u201d for various building violations by the city building department. Shortly thereafter, pursuant to respondent\u2019s arrangement, Radtke appeared at the site with a copy of the list which the Heins had provided respondent and inspected the building. The Heins did not participate in his inspection.\nOn June 6, 1978, pursuant to the direction of the Heins, respondent sent Wiswald a letter terminating the construction agreement. Shortly after June 22, 1978, Christel Hein delivered to respondent\u2019s office a summons and complaint which was served on her and related to Wickes v. VIP Holding, E. W. Wiswald Builders, Waldemar Hein and Christel Hein, 78 CH 205 (circuit court of Lake County). On July 6, 1978, respondent filed an appearance, answer and counterclaim against Wiswald in that case on behalf of the Heins.\nOn or before August 3, 1978, respondent drafted a proposal on behalf of Artisan, for submission to the Heins, setting forth certain construction services to be performed on the building which was the subject of the above-described construction agreement and litigation. Shortly thereafter, respondent delivered the proposal to the Heins.\nAccording to the Heins, after they had reviewed the document, they returned to respondent\u2019s office and discussed the proposal with him. Waldemar Hein questioned the quoted prices, especially the $2,700 carpentry figure. According to the Heins, respondent replied that his legal fees would be included, but that the Heins should not disclose this to the judge. Respondent allegedly further cautioned the Heins to attribute the payments to be made solely to carpentry, brickwork and plumbing. Respondent denied making any such statements.\nAfter returning home and discussing the proposal, Waldemar Hein signed it. Christel Hein brought the signed document back to respondent\u2019s office. Christel Hein testified that after she and respondent made various adjustments to the proposal, respondent signed \u201cArtisan Constr.\u201d to the document. According to respondent, respondent\u2019s secretary signed \"Artisan Constr.\u201d\nA few days after the proposal had been accepted, respondent undertook to complete the services described in the Artisan contract because Radtke abandoned the contract. Respondent knew if he did the work he might have to be a witness in the case in which he was representing the Heins. According to respondent, he advised the Heins of Radtke\u2019s abandonment and offered to complete the construction services for them. Respondent testified that the Heins and he entered into such an agreement after respondent disclosed that as a result of his dual role as attorney and builder, he might have to withdraw as their attorney and appear at trial to prove the extent of damages. The Heins denied that respondent made any such disclosures.\nPursuant to their proposal and at the direction of the respondent, on three different occasions the Heins delivered to respondent three cashier\u2019s checks purchased from the Elmhurst Federal Savings and Loan Association and made payable to Artisan Construction. The three checks, dated August 28, 1978, September 26, 1978, and December 26, 1978, totaled $8,539.95. According to respondent, he requested these checks for use as evidence, because it was to the advantage of the Heins. Respondent anticipated that these checks payable to Artisan would be introduced at trial, even though Artisan had done little work and had received only $200.\nRespondent endorsed and cashed each of the above-described checks at the Bank of Lake Villa, deposited the cash into his business account at the same bank, and paid various family members and other individuals cash for various construction services without obtaining any receipts. The record indicates that respondent retained a portion of the $8,539.95 for his contracting services. The record does not indicate how much of the money was kept by respondent, but the Heins did not allege that the $8,539.95 was excessive or unreasonable.\nOn January 24, 1979, while representing the Heins in case No. 78 CH 205, respondent filed answers to interrogatories, sworn to by the Heins, stating that Arthur Lichter Construction Company (Arthur Lichter did some brick work on the fireplace of the Heins\u2019 building) and Artisan Construction were the only contractors which performed services at the building and attributing the work of his family to Artisan Construction. Respondent attached copies of the face of two of the checks payable to Artisan, but cashed by respondent. It is unclear from the record why the respondent did not produce a copy of the face of the third check. At the deposition of Waldemar Hein taken on March 2, 1979, respondent represented that Artisan was the contractor involved.\nAs of March 19, 1979, respondent had sent no bill to the Heins for any legal services. On March 19, 1979, respondent threatened to withdraw if the Heins did not pay $1,450 in additional legal fees prior to trial. On March 26, 1979, Waldemar Hein demanded an accounting of the funds delivered to respondent and stated that respondent had told them in August 1978 that his fee would be included in the proposal amount. On March 27, 1979, respondent wrote a letter to Waldemar Hein giving him an accounting of the legal work he had done and the hours he had spent. In his letter, the respondent did not deny that the proposal price was to include his legal fees. On April 8, 1979, Waldemar Hein replied in writing, stating, in part:\n\u201cWhen we signed the contract with you, you told us that all of the lawsuits will be included in $8,905 and $500 retainer, but we should not tell the judge about it.\u201d\nOn April 11, 1979, respondent replied in writing:\n\u201cI did not say not to tell anyone. I said if you wanted to collect it, don\u2019t tell anyone. Tell anyone anything you want but if you destroy your case, don\u2019t blame me.\u201d\nOn April 26, 1979, respondent countered with the following proposal:\n\u201cUpon payment of One Thousand Four Hundred Fifty ($1,450.00) Dollars by Wally and Christel Hein, the undersigned agrees to:\nProsecute 78 CH 205 and all claims thereunder to a conclusion in the Trial Court and in addition to:\n(1) Raise and block the garage valley roof at 845 North Nathan Hale Drive, Westmiltamore.\n(2) Install 1/4 Round in house.\n(3) Install gutters and downspouts.\n(4) Install 1x2 along Gable ends.\n(5) Sand and finish floors.\u201d\nWhen the Heins refused to enter into this agreement or pay any further funds to respondent, he withdrew. At this time, the construction services set forth in the August 3, 1978, proposal had not been completed. The Heins hired another contractor who completed them at a cost exceeding $4,000. They also incurred legal fees in retaining another attorney to conclude the litigation, which was settled within three months.\nThe Administrator raises two issues on appeal before this court. First, whether the Review Board erred in reversing the Hearing Board\u2019s finding that respondent had violated the Code by entering into a business transaction with his clients and by failing to withdraw as the Heins\u2019 counsel and, second, whether the respondent\u2019s conduct warrants 18 months\u2019 suspension, the recommendation of the Hearing Board, or censure, the recommendation of the Review Board.\nSince the alleged misconduct in this case occurred prior to 1980, when this court adopted our Code of Professional Responsibility as part of our rules, the rules under which the respondent was charged and which are cited and quoted are the rules of the Illinois State Bar Association which were in effect at the time of the alleged misconduct and then administered by the Attorney Registration and Disciplinary Commission.\nIn his brief, the respondent quotes from In re Moore (1956), 8 Ill. 2d 373, 379, wherein this court stated:\n\u201c[T]he power to discipline is not arbitrary, and must be exercised with legal discretion and caution. Proof of charges must be established by clear and convincing evidence, and the record must be free from doubt not only as to the act charged, but as to the motive with which it was done. In re Lasecki, 358 Ill. 69; In re Donaghy, 402 Ill. 120, 123.\u201d\nIt is clear that entering into a business transaction with a client was not a per se violation of DR 5 \u2014 104(A). The rule provided:\n\u201c(A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.\u201d (Emphasis added.) Illinois Code of Professional Responsibility, DR 5 \u2014 104(A) (Illinois State Bar Association (rev. ed. 1977)).\nThe respondent in the instant case testified that he informed the Heins of his dual role and in his brief asserts that \u201cwhen Artisan failed to perform the work, [he] attempted to rescue the Heins by completing the work himself.\u201d Mr. Hein stated that he knew the Heilgeists and saw them working on the house. He even testified that he worked with them. He also testified that he had \u201cnever seen Artisan Construction on my job, on my house.\u201d Mr. Hein\u2019s testimony supports respondent\u2019s contention that the Heins knew Artisan had backed out of the proposal and that the respondent and his family had taken over the work. Besides the fact that the Administrator failed to sustain his burden of proof regarding the charge of failure to disclose, there was no convincing evidence regarding the respondent\u2019s motive for the charge. The respondent did not stand to gain personally by attempting to bail out a client whose house had been red-tagged for numerous building violations. We therefore hold that the Review Board did not err in reversing the Hearing Board because the Administrator failed to sustain his burden of proof regarding the respondent\u2019s alleged failure to fully disclose his dual role and his alleged motive.\nThe Review Board also did not err in reversing the Hearing Board concerning the respondent\u2019s failure to withdraw as the Heins\u2019 counsel. The Administrator asserted that respondent violated DR 5 \u2014 102(A), which provided:\n\u201cIf, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5 \u2014 101(B)(1) through (4).\u201d Illinois Code of Professional Responsibility, DR 5 \u2014 102(A) (Illinois State Bar Association (rev. ed. 1977)).\nThe exceptions which were enumerated in DR 5\u2014 101(B)(1) through (4) are as follows:\n\u201cA lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:\n(1) If the testimony will relate solely to an uncontested matter.\n(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.\n(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.\n(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.\u201d\nAlthough it is arguable that respondent\u2019s continued representation fell under one of the exceptions to DR 5\u2014 102(A), the respondent never asserted that this case fell under an exception and therefore we will not address that point.\nThe Hearing Board found that respondent violated DR 5 \u2014 102(A) by \u201ccontinuing] to represent the Heins in a matter in which the respondent expected to be called as a witness.\u201d The Review Board found that since respondent had \u201cattempted to rescue the Heins by completing the work himself,\u201d he was on the job site directing personnel and paying the workers and, \u201c[hjaving undertaken this responsibility, there was a possibility that Respondent would be called as a witness.\u201d However, the Review Board also stated:\n\u201cHowever, that [the possibility of being a witness] isn\u2019t sufficient to preclude his continued representation. There is no evidence that his testimony would have been indispensible at trial.\u201d\nWe agree with the Review Board that the respondent was not required to withdraw under the facts of this case, because it was not, as required by DR 5 \u2014 102(A), \u201cobvious that he [the respondent] or a lawyer in his firm ought to be called as a witness.\u201d (Emphasis added.) Respondent knew that there was a possibility that if the case actually went to trial, he might be called as a witness. We do not believe that the respondent here was required to withdraw based on the possibility that he might have to become a witness, considering the stage of the representation with which we are dealing in this case.\nThe last charge that we will address is the one that concerns us. Respondent has been charged with creating false evidence in violation of DR 7 \u2014 102(A)(6) and (7) (Illinois State Bar Association (rev. ed. 1977)). The Hearing Board found that respondent had participated in the creation of false evidence. The Review Board also stated that \u201c[t]here is little doubt that Respondent engaged in the creation of false evidence.\u201d The charge for creation of false evidence is based on the fact that respondent advised his clients to obtain cashier\u2019s checks made payable to Artisan Construction for work that was being done on their home, when, in fact, Artisan was no longer doing the work. Respondent contends that the advice he gave to the Heins to obtain cashier\u2019s checks \u201cwas nothing more than an effort to prepare for trial and obtain probative, competent evidence that not only did the Heins incur the damages, in support of their counterclaim, but they had paid the charges incurred.\u201d The Administrator alleges that the respondent had the Heins obtain the checks so as to \u201cobtain legal fees from Wiswald [the original builder] under the guise that they were contract damages to which the Heins were entitled *** unnecessarily involvpng] the Heins in a fraud.\u201d\nAssuming, arguendo, that the allegation regarding the legal fees being somehow built in to the fees for construction were true, two thoughts come to mind. First, the respondent had nothing to gain by trying to get his legal fees in this fashion. Respondent would still have received his legal fees from the Heins, his clients, regardless of whether he built them in to the contract damages. So he did not have anything to gain as the Administrator alleges. Second, the sum that was charged, $8,539.95, has at no time been alleged to be unreasonable or excessive for the construction services performed. If that sum is not unreasonable for the construction services, then we do not believe the legal fees were hidden.\nHowever, it was improper for the respondent to tell the Heins to have the checks made payable to Artisan Construction when he knew the money was really being distributed to persons other than those associated with Artisan. By handling the situation in this manner, respondent, even if it were not true, made it look as though he was trying to hide or misrepresent who was actually doing the construction work. While we do think the respondent used poor judgment in the way he handled the payments for the construction work, we do not believe that the respondent\u2019s conduct warrants an 18-month suspension as the Hearing Board recommended.\nThe purpose of attorney disciplinary proceedings is to safeguard the public and maintain the integrity of the legal profession. (In re Levin (1979), 77 Ill. 2d 205, 211.) While it is true that this court recognizes the need for uniformity in the sanctions it imposes in these cases (In re Clayter (1980), 78 Ill. 2d 276, 283), we are also cognizant of the fact that each case presents a unique factual situation and must be carefully evaluated based on its own merits (In re Hopper (1981), 85 Ill. 2d 318, 324).\nIn the instant case the Administrator has not asked for restitution. There is no allegation of an overcharge for either attorney fees or construction costs. It does not appear that the Heins were damaged in any way except for the fact that they had to hire a new lawyer after the respondent refused to represent them unless he received his fee. As the Review Board pointed out, the respondent stood to gain little, if anything, from his alleged misconduct, so that personal gain could not have been a motivating factor. The respondent is 55 years of age and has had a previously unblemished record after 28 years of practicing law in the State of Illinois.\nWe do not agree with the Administrator that this case is comparable to In re Howard (1978), 69 Ill. 2d 343, or In re Kien (1977), 69 Ill. 2d 355. In both those cases, the respective respondents paid police officers assertedly to secure their truthful testimony in court. We believe that eliciting certain testimony for money is different than having checks made payable to an incorrect party. The record indicates that respondent somehow believed that it looked better for his clients if the checks were made payable to a construction company. We agree with both the Hearing Board and the Review Board that respondent, by advising his clients to make their checks payable to a company that was not actually performing the construction work on their home, participated in the creation of false evidence. We therefore believe that the respondent\u2019s conduct warrants a three-month suspension.\nFor the foregoing reasons, we hold that suspension of the respondent from the practice of law for three months is the appropriate sanction in this case.\nRespondent suspended.\nJUSTICE MORAN took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE CLARK" } ], "attorneys": [ "Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.", "Sidney Z. Karasik, of Chicago, for respondent." ], "corrections": "", "head_matter": "(No. 59671.\nIn re ROBERT JOHN HEILGEIST, Attorney, Respondent.\nOpinion filed October 3, 1984.\nMORAN, J., took no part.\nJerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.\nSidney Z. Karasik, of Chicago, for respondent." }, "file_name": "0453-01", "first_page_order": 639, "last_page_order": 651 }