{ "id": 5494360, "name": "In re JAMES D. FREEL, Attorney, Respondent", "name_abbreviation": "In re Freel", "decision_date": "1982-02-19", "docket_number": "No. 55035", "first_page": "263", "last_page": "273", "citations": [ { "type": "official", "cite": "89 Ill. 2d 263" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "39 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857919 ], "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0250-01" ] }, { "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": "60 Ill. 2d 590", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5416322 ], "weight": 2, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0590-01" ] }, { "cite": "27 Ill. 2d 459", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358816 ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0459-01" ] }, { "cite": "78 Ill. 2d 276", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074610 ], "weight": 6, "pin_cites": [ { "page": "283" }, { "page": "281" }, { "page": "283" }, { "page": "283" }, { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0276-01" ] }, { "cite": "19 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2745967 ], "year": 1968, "pin_cites": [ { "page": "98" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/19/0093-01" ] }, { "cite": "82 Ill. 2d 489", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474345 ], "year": 1975, "pin_cites": [ { "page": "494" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/82/0489-01" ] }, { "cite": "83 Ill. 2d 20", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5472971 ], "year": 1980, "pin_cites": [ { "page": "25" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/83/0020-01" ] }, { "cite": "89 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493688 ], "opinion_index": 1, "case_paths": [ "/ill-2d/89/0151-01" ] }, { "cite": "65 Ill. 2d 152", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5436605 ], "year": 1982, "pin_cites": [ { "page": "157" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/65/0152-01" ] }, { "cite": "89 Ill. 2d 247", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493135 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/ill-2d/89/0247-01" ] }, { "cite": "39 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857919 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill-2d/39/0250-01" ] }, { "cite": "60 Ill. 2d 590", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5416322 ], "pin_cites": [ { "page": "593" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/60/0590-01" ] }, { "cite": "27 Ill. 2d 459", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358816 ], "opinion_index": 1, "case_paths": [ "/ill-2d/27/0459-01" ] }, { "cite": "78 Ill. 2d 276", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074610 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill-2d/78/0276-01" ] } ], "analysis": { "cardinality": 705, "char_count": 16433, "ocr_confidence": 0.867, "pagerank": { "raw": 1.5858899468161768e-07, "percentile": 0.6812202178582613 }, "sha256": "dba9f02ccb63ad4f6e818d7ae4dcc5b9d2e7a0fe48afd9ee9f8f843937876736", "simhash": "1:fb5d69b358874b38", "word_count": 2752 }, "last_updated": "2023-07-14T21:33:34.158877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re JAMES D. FREEL, Attorney, Respondent." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nOn May 9, 1980, the Administrator of the Attorney Registration and Disciplinary Commission (Commission) filed a one-count complaint against respondent, James D. Freel, who was admitted to the practice of law on November 19, 1954. A panel of the Hearing Board found that the Administrator had proved by clear and convincing evidence that respondent had failed to properly account for his client\u2019s funds, had failed promptly, upon request, to pay and deliver the client\u2019s funds, and had commingled the client\u2019s funds with his own. The panel recommended that respondent\u2019s license to practice law be suspended for three months. Both the Administrator and respondent filed exceptions to the report of the Hearing Board. The Review Board ordered that respondent be reprimanded. We allowed the Administrator\u2019s petition for leave to file exceptions. 73 Ill. 2d R. 753(e).\nOn May 14, 1974, John Meyers was injured while working. Meyers retained respondent, and respondent negotiated a settlement of Meyers\u2019 workmen\u2019s compensation claim and was paid a fee. In 1975, Meyers asked respondent to represent him in a personal injury action against the company on whose premises he was injured. Meyers and respondent agreed orally to a one-third contingency fee. In' March 1976 respondent filed suit, and in November 1978 the case was settled for $2,500.\nRespondent explained to Meyers that his former employer\u2019s compensation carrier had claimed a lien on the settlement funds. Respondent negotiated a reduction of the lien to $1,000. The respondent received a check in the amount of $2,500 payable to Meyers and his wife, respondent, and the employer\u2019s compensation carrier. Meyers and his wife endorsed the check in December 1978 and returned it to respondent. Respondent endorsed the check but did not send it to the employer\u2019s insurance carrier until late February 1979. Between December 1978 and March 1979, Meyers telephoned respondent\u2019s office and home at least two dozen times to inquire what had happened to the settlement money. Meyers also visited respondent\u2019s Chicago office on two occasions, but was told each time that respondent was not in. During this period Meyers was unable to learn anything regarding the settlement. He mailed a complaint to the Attorney Registration and Disciplinary Commission, relating the foregoing events. The complaint was received by the Commission on March 7, 1979.\nThe employer\u2019s compensation carrier received the fully endorsed check late in February. On March 1, 1979, it issued a check payable to Meyers and respondent in the amount of $1,500, the amount of the check less the amount agreed upon in settlement of the lien. On March 5, 1979, respondent mailed this check to Meyers for his endorsement. Meyers received the check after he had filed the complaint against respondent with the Commission. Nevertheless, on March 9, 1979, Meyers endorsed the check and returned it to respondent.\nWhen respondent received the check he deposited $1,400 in his business account and took $100 in cash. Bank records admitted into evidence show a deposit in the amount of $1,400 on March 14, 1979. Respondent admitted that the account in which the money was deposited was his only business account. It was not a clients\u2019 trust account or escrow account. Respondent did not prepare a settlement sheet or show Meyers receipts for court costs or doctor bills which were to be deducted from his share of the settlement.\nMeyers again telephoned respondent about the settlement, but respondent, having learned of the complaint pending before the Commission, told Meyers to \u201cbuzz off.\u201d He told Meyers that he would wait for the Commission to act before he disbursed any funds. In letters addressed to the Attorney Registration and Disciplinary Commission, dated March 23, 1979, and April 6, 1979, respondent stated that distribution of the funds awaited the directions of the Commission.\nMeyers employed Sara Lyn Smith, an attorney, to recover the settlement funds. On September 26, 1979, respondent forwarded to Smith a check made out to Meyers and Smith in the amount of $468.25, the amount respondent asserted was due Meyers after deduction of expenses and court costs and respondent\u2019s one-third contingency fee. The check was dated March 14, 1979. A handwritten settlement statement sent with the check showed that $498.75 was deducted for a \u201cdoctor\u2019s bill\u201d and $49.50 for \u201ccourt costs.\u201d Respondent had not previously mentioned the doctor\u2019s bill to Meyers or Smith and had not shown either of them the bill. Smith deposited the check in her clients\u2019 trust account, but the check, due to its \u201cstale\u201d date, was not paid.\nEileen Downey, an attorney sharing office space with Sara Lyn Smith, took over the matter and wrote respondent concerning the returned check. Respondent responded in a handwritten message stating, \u201cI have placed the net proceeds previously tendered in the bank at Platteville, Wis. If you want it please advise. If you insist on more, file suit.\u201d Downey testified that because of the vague language of the note and the fact that respondent did not indicate the name of the bank in which the funds were held, she did not consider this to be a settlement tender. She filed suit for $1,000, and the case was later settled for $700.\nAt the hearing before the Hearing Board panel, respondent explained that the check which he sent to Sara Lyn Smith on September 26, 1979, was dated March 14, 1979, because that was the date on which he had written in Meyers\u2019 name, the date, and his signature. He did not calculate the amount due to Meyers and send him the check at that time because he hoped to negotiate a reduction of the doctor\u2019s bill. When Smith demanded the money, he added her name to the check to secure her attorney\u2019s lien and inserted the amount he thought was due and owing to Meyers.\nRespondent testified that some time after depositing the funds he placed fourteen $100 bills with which he had intended to purchase \u201cclassical stamps\u201d in an envelope and put the envelope in his file. He stated that he paid the doctor\u2019s bill, in cash, out of these funds. The file in which this envelope was kept was lost for some time but was found shortly before the hearing.\nRespondent also testified that after the check issued to Smith and Meyers was returned as a \u201cstale\u201d item, he went to Platteville and opened a bank account in the amount he felt was due and owing to Meyers. He stated that this was the account to which he referred in his communications to attorney Downey. He stated that, at the pretrial conference at which the suit filed by Downey was settled, she demanded cash. She refused to have the bank account handed over to her because respondent had indicated that there would be some delay in getting the proceeds of the account because it was a \u201c90-day account.\u201d\nThe hearing panel recommended that respondent be suspended from the practice of law for three months. On review, the Review Board of the Attorney Registration and Disciplinary Commission, in lieu of recommending disciplinary action by this court, issued a reprimand. The Review Board gave no reasons for its order.\nThe Administrator argues that the findings of the Hearing Board that the respondent had commingled his client\u2019s funds with his own, had converted these funds to his own use, and had failed to account to his client concerning the handling of these funds were proved by clear and convincing evidence. He argues that the evidence also shows conversion of the funds and that respondent\u2019s misconduct \u201cwarrants suspension from the practice.\u201d\nRespondent\u2019s testimony is sufficient to support all three of the hearing panel\u2019s findings. He admitted that he deposited the settlement check into his business account and not into a trust account. Rule 9\u2014102 of the Code of Professional Responsibility provides that \u201call funds of clients paid to a lawyer or law firm, including funds belonging in part to a client and in part presently or potentially to the lawyer or law firm, shall be deposited in one or more separate identifiable trust bank accounts maintained in the State in which the law office is situated.\u201d (81 Ill. 2d R. 9\u2014102.) Respondent\u2019s conduct clearly violated this rule. Respondent also admitted that he did not respond to his client\u2019s inquiries as to what had happened to the settlement funds and, after learning of the complaint filed with the Commission, refused to turn over even the amount he believed was due and owing to his client. This violated subsection (c) of Rule 9\u2014102:\n\u201c(c) A lawyer shall\n* * *\n(4) promptly pay or deliver to the client as requested by a client the funds *** in the possession of the lawyer which the client is entitled to receive.\u201d 81 Ill. 2d R. 9\u2014102(c).\nThe records of respondent\u2019s bank account for the period from December 11,1978, to October 10,1979, were admitted into evidence. Except for eight days near the end of that period the balance shown exceeded the amount due Meyers. Average daily balances during any 30-day period ranged from a high of $6,944.31 to a low of $633.33. While it might be argued under In re Clayter (1980), 78 Ill. 2d 276, 283, that there was a \u201ctechnical conversion\u201d of the funds, the hearing and review boards did not err in refusing to find that respondent had converted his client\u2019s funds.\nRespondent\u2019s contention that because he kept the funds in an envelope there was no commingling is not supported by the authorities. Similar practices were disapproved in In re Clayter (1980), 78 Ill. 2d 276, and In re Lingle (1963), 27 Ill. 2d 459.\nRespondent was apparently of the opinion that after the filing of the complaint with the Commission it was proper for him to refuse to attempt to settle the dispute concerning his client\u2019s funds. The pendency of the charge that an attorney is improperly withholding clients\u2019 funds does not suspend the attorney\u2019s duty imposed by Rule 9 \u2014 102(c)(4) to immediately pay over clients\u2019 funds upon request. As an attorney, respondent should have known that the Attorney Registration and Disciplinary Commission had no jurisdiction to issue orders concerning the disbursement of those funds.\nWe consider the question of the appropriate sanction to impose in this case. This court has consistently condemned the practice of commingling clients\u2019 funds with those of the attorney. (In re Clayter (1980), 78 Ill. 2d 276, 281; In re Sherman (1975), 60 Ill. 2d 590.) While each case is unique, we have held that \u201cPredictability and fairness require that there be a degree of consistency in the sanctions imposed for similar types of conduct ***.\" (In re Hopper (1981), 85 Ill. 2d 318, 324.) Sanctions should be imposed consistent with those imposed in cases with factual situations substantially similar to the case under consideration. (In re Clayter (1980), 78 Ill. 2d 276, 283.) Although it is not necessary that an attorney act with dishonest motives to warrant discipline (78 Ill. 2d 276, 283; In re Bloom (1968), 39 Ill. 2d 250, 254), cases involving infractions of the rules similar to those shown here have usually warranted censure of the attorney. (See In re Clayter (1980), 78 Ill. 2d 276, 283; In re Sherman (1975), 60 Ill. 2d 590, 592.) The facts in Clayter and Sherman are similar to those here. Respondent has practiced law since 1954, and this appears to be the only incident involving unprofessional conduct. We conclude that on this record the appropriate sanction is censure.\nRespondent censured.", "type": "majority", "author": "JUSTICE GOLDENHERSH" }, { "text": "JUSTICE UNDERWOOD,\ndissenting:\nI cannot agree that no conversion occurred here, nor do I agree that censure is an adequate sanction for the insensitivity to his professional responsibilities which respondent has manifested.\nIt is undisputed that for two months after securing Meyers\u2019 (his client\u2019s) endorsement thereon respondent, for no apparent reason, delayed forwarding to the compensation insurer a check received in settlement of Meyers\u2019 action against a third party. During that period he completely ignored the client\u2019s numerous calls and visits inquiring about the settlement proceeds. After respondent finally acted and received the $1,500 due Meyers, it was deposited in respondent\u2019s personal account, the balance in which subsequently fell below the amount owed the client.\nRespondent received the $1,500 early in March 1979. He made no effort to distribute to Meyers the money to which he was entitled until Meyers employed other counsel to collect the funds. Respondent in September, six months late, forwarded to that attorney a check dated March 14 for an amount substantially less than anticipated by Meyers. Most of the difference was claimed by respondent to represent an unpaid doctor\u2019s bill. Respondent\u2019s check was not honored by the drawee bank because of its date. Respondent\u2019s explanation of the stale date was that he had written the client\u2019s name and the date on the check and signed it on March 14, but did not fill in the amount because he hoped to compromise the doctor\u2019s bill.\nRespondent also stated that when he deposited the client\u2019s $1,500 check in his personal account he kept $100 in cash, and that he subsequently withdrew $1,400 in $100 bills which he placed in an envelope in his file. From this, he stated, he paid the doctor\u2019s bill. Meyers eventually received $700 after being compelled to file suit to secure his money.\nWhen a lawyer places money belonging to a client in his personal account, as respondent did here, instead of in a trust account, he has, of course, violated the prohibition against commingling codified in Rule 9\u2014102 of the Code of Professional Responsibility (81 Ill. 2d R. 9\u2014102). When that account is dissipated by him to the point where it no longer equals or exceeds the amount due the client, the commingling becomes conversion, as the Hearing Board held in this case, and as we have repeatedly indicated. (In re Grant (1982), 89 Ill. 2d 247; In re Clayter (1980), 78 Ill. 2d 276; In re Bloom (1968), 39 Ill. 2d 250.) Whether respondent might have been able to secure funds from other sources with which to pay the client may be a relevant argument in mitigation of punishment, but on the issue of conversion that argument was said by this court in In re Brody (1976), 65 Ill. 2d 152, 157, to be \u201cgroundless.\u201d See also In re Kesler (1982), 89 Ill. 2d 151.\nEven assuming the truth of respondent\u2019s testimony that he had placed fourteen $100 bills in a file which was subsequently \u201clost\u201d until just before the hearing, that money was apparently not intended for his clients, since he stated he intended to buy \u201cclassical stamps\u201d with the balance remaining after his claimed payment of the doctor\u2019s bill. In any event, such handling of clients\u2019 funds has been consistently condemned by this court. In re Clayter (1980), 78 Ill. 2d 276; In re Lingle (1963), 27 Ill. 2d 459.\nPhrased in its simplest terms, what we have before us is a lawyer who neglected for two months to collect a check due his client, meanwhile ignoring repeated phone calls and office visits by the client; then he finally acted but deposited the proceeds therefrom in his personal account, which was subsequently depleted to the point where it was insufficient to cover the amount owed the client; thereafter, he neither gave nor sent to the client even the amount respondent admitted owing until after the client secured another attorney and filed suit.\nThis court has frequently spoken of its responsibility to disclipline the legal profession. (In re Neff (1980), 83 Ill. 2d 20, 25; In re Zahn (1980), 82 Ill. 2d 489, 494; In re Sherman (1975), 60 Ill. 2d 590, 593.) In In re Abbamonto (1960), 19 Ill. 2d 93, 98, we said and repeated in In re Bloom (1968), 39 Ill. 2d 250, 254: \u201cIt is vital to the well-being of society that an attorney, who is an officer of the court and a part of our judicial system, should maintain the most scmpulous care in conducting his professional and business affairs.\u201d If the protection to the public which our adoption of the Code of Professional Responsibility was intended to provide is to be meaningful, something more than censure is needed here.\nWARD and MORAN, JJ., join in this dissent.", "type": "dissent", "author": "JUSTICE UNDERWOOD," } ], "attorneys": [ "David Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.", "James D. Freel, of Chicago, pro se." ], "corrections": "", "head_matter": "(No. 55035.\nIn re JAMES D. FREEL, Attorney, Respondent.\nOpinion filed February 19, 1982.\nUNDERWOOD, WARD and MORAN, JJ., dissenting.\nDavid Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.\nJames D. Freel, of Chicago, pro se." }, "file_name": "0263-01", "first_page_order": 275, "last_page_order": 285 }