The opinion
Docket No. 101316.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re PETER DEFOREST WINTHROP, Attorney,
Respondent.
Opinion filed March 23, 2006.
JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Chief Justice Thomas and Justices Freeman, McMorrow,
Kilbride, Garman, and Karmeier concurred in the judgment and
opinion.
OPINION
The Administrator of the Attorney Registration and
Disciplinary Commission (ARDC) filed a two-count complaint
against respondent, Peter Deforest Winthrop, charging him
with various violations of the Illinois Rules of Professional
Conduct (Rules). The Hearing Board recommended that the
charges against respondent be dismissed. The Review Board
reversed, found that respondent committed several violations
of the Rules, and recommended that respondent be suspended
from the practice of law for two years. Respondent filed
exceptions to the findings of the Review Board and asks this
court to uphold the finding of the Hearing Board dismissing all
charges against him or, in the alternative, to impose a sanction
of reprimand or censure. The Administrator cross-appeals,
seeking respondent=s disbarment or, alternatively, a three-year
suspension.
BACKGROUND
Respondent was charged with professional misconduct
resulting from his representation of Corrine Rice, a 92-year-old
woman for whom he drafted a will and a power of attorney. The
complaint alleged that respondent breached his fiduciary duty
to Rice; engaged in a conflict of interest by representing Rice
when his representation of her was materially limited by his
own interests or responsibilities to a third party in violation of
Rule 1.7(b) of the Rules (134 Ill. 2d R. 1.7(b)); failed to disclose
a material fact to a tribunal when disclosure was necessary to
avoid assisting in a client=s criminal or fraudulent act, in
violation of Rule 3.3(a)(2) (134 Ill. 2d R. 3.3(a)(2)); made a
misstatement of material fact to a third person which
respondent knew to be false in violation of Rule 4.1(a) (134 Ill.
2d R. 4.1(a)); engaged in conduct involving dishonesty, fraud,
deceit or misrepresentation in violation of Rule 8.4(a)(4) (188
Ill. 2d R. 8.4(a)(4)); and engaged in conduct which tends to
defeat the administration of justice or brings the court or legal
profession into disrepute in violation of Supreme Court Rule
771 (134 Ill. 2d R. 771). 1
1
Respondent was also charged with inducing or assisting another to
engage in conduct known by respondent to be violative of the Rules, in
contravention of Rule 8.4(a)(2) (188 Ill. 2d R. 8.4(a)(2)). However, this
charge was dismissed by the Hearing Board, the Review Board affirmed its
The relevant facts presented at the hearing demonstrated
that respondent is a sole practitioner with a law office in
Bridgeview, Illinois, who was admitted to the Illinois Bar in
1990. In 2000, respondent met Farouq Nobani and
represented him on some traffic matters. Respondent also
represented Nobani=s wife, Sharon Kotrba, on a traffic case.
Nobani performed services for respondent in lieu of paying a
fee. Specifically, Nobani added Arabic lettering to respondent=s
law office sign and translated documents and oral
conversations related to respondent=s immigration practice.
Respondent denied that he and Nobani had a social
relationship, and characterized Nobani as an acquaintance, not
a friend.
In July 2001, Nobani contacted respondent about preparing
a will for Rice, an elderly woman who resided in his
condominium complex. Respondent testified that he did not
respond to Nobani=s request initially, but eventually agreed to
visit Rice after receiving telephone calls from both Nobani and
his wife. Respondent first visited Rice sometime in July 2001
and learned that Rice was never married, had no children and
was an only child. Respondent also learned that Rice owned
her condominium, had two bank accounts and intended for her
neighbor, Farous Hassan, to be the beneficiary and executor of
her will.
Approximately one week after this meeting, respondent
returned to Rice=s apartment with a draft of the will. During that
meeting, Rice informed respondent that she also wanted to
appoint someone to handle her financial affairs, as it was
becoming inconvenient for her to do so herself. Respondent
testified that he advised Rice to create a trust, possibly with
Northern Trust Bank. He explained that the bank would pay her
bills. According to respondent, Rice questioned whether there
would be a yearly and/or monthly fee for this service, and when
told that a fee would be involved, suggested that Nobani be
appointed to manage her finances. Respondent stated that he
Agleaned@ from his conversation with Rice that she wanted
dismissal, and the Administrator does not challenge the finding. We
therefore do not address it here.
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Nobani to have unfettered discretion over all of her financial
affairs. Respondent drafted a power of attorney pursuant to
Rice=s requests. Even though he had only drafted 5 to 10
powers of attorney in his career, respondent did not use the
Illinois Astatutory property power@ (755 ILCS 45/3B4 (West
2002)), although he did state that he was familiar with the form.
Respondent contacted Nobani to advise him that he had
been designated Rice=s power of attorney. Respondent
testified that Nobani refused to serve unless language was
added to the document protecting him from liability.
Accordingly, respondent added a paragraph to the power of
attorney which stated: AI, Farouq Nobani, agree to this power of
attorney, and hereby promise to do my very best, but under no
conditions do I guarantee the outcome of any matter.@
Respondent stated that Rice agreed to the addition of this
language to the document, and understood that Nobani had a
duty to take care of her finances and be very careful.
Respondent testified that he did not believe that the language
was problematic, as it accomplished Rice=s goal of authorizing
Nobani to manage her financial affairs.
After Rice agreed to the power of attorney, respondent
advised her that it had to be signed and notarized. Respondent
explained that Rice suggested that they go to Hemlock Bank in
Oak Lawn, where she did her banking. At Hemlock Bank,
respondent, Nobani, and Rice met with Virginia Paluch. Paluch
testified that she was a personal banker and that she knew
Rice, as she had assisted her in completing bank transactions
many times in the past. She notarized Rice=s will and power of
attorney.
Paluch testified that she was Auncomfortable@ with the
documents and the circumstances under which they were
signed. Her discomfort stemmed from the fact that Rice=s
behavior was out of the ordinary: she came to the bank at
night, as opposed to the morning; she appeared to be dressed
in clothing that belonged to someone else; and she was much
less independent than she had been in the past. Paluch also
testified that she was concerned about the legitimacy of the
documents because respondent and Nobani wanted to
withdraw funds immediately. According to Paluch, respondent
specifically stated that he wanted money disbursed, not for
payment of Rice=s bills, but for payment of personal fees he
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and Nobani had incurred in assisting Rice. Paluch stated she
denied their request, explaining that she could not disburse
funds because they did not bring Rice=s passbook. She stated
that she did this so she could discuss the situation with her
manager, JoAnne Reiser.
Respondent testified that Paluch gave him a stack of Rice=s
unpaid bills and advised him to pay them, and it was arranged
that Nobani would return to the bank the following day to pay
the bills. Respondent explained that Rice asked him to
accompany Nobani to the bank for this purpose, and even
though he told her his presence was not necessary and
cautioned that he would add $200 to his fee for this service,
she directed him to assist Nobani.
Respondent and Nobani went to Hemlock Bank on
Saturday, August 4, 2001, and spoke to bank manager JoAnne
Reiser. Reiser testified that Rice=s power of attorney had been
brought to her attention the previous evening by Paluch, as it
was not the Illinois statutory property power of attorney with
which they were familiar. She advised her employees that she
wanted to speak with respondent or Nobani if either returned to
the bank and attempted to use the power of attorney, and she
was called when respondent and Nobani arrived at the bank.
According to Reiser, respondent stated that he was Rice=s
attorney and was there to inquire about Rice=s accounts and to
access them for bill paying. Reiser testified that she told
respondent she would not honor Rice=s power of attorney
because it was not the Illinois statutory property power form.
Reiser stated that respondent became very upset, threatened
to sue the bank and advised her that she was costing Rice Aa
lot of money.@
Respondent and Nobani left Hemlock Bank and proceeded
to Advance Bank, where Rice held other accounts. They met
with bank manager Alston Rucker. Rucker testified that
respondent introduced himself as Nobani=s attorney. However,
on cross-examination, he admitted that he previously stated, in
his deposition, that Nobani introduced respondent as his
attorney. Respondent denied telling Rucker that he
represented Nobani.
While at the bank, Nobani used the power of attorney to
close a certificate of deposit (CD) account held by Rice. The
CD was not mature, and Nobani thus incurred a $1,800
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penalty. Nobani directed the bank to issue a cashier=s check in
his name for the remaining balance on the account, which was
approximately $87,000. Although respondent was present for a
majority of Nobani=s conversation with Rucker, and stated that
he could clearly hear the conversation, he testified that he did
not know Nobani was closing the account, was unaware of the
penalty, and did not know that Nobani asked for the cashier=s
check to be issued in his name. Respondent stated that he was
Anot focused@ on Nobani=s conduct, although he sat next to
Nobani in Rucker=s cubicle as the transaction was occurring.
Evidence presented by the Administrator demonstrated that
Nobani opened an account at United Trust and Federal
Savings Bank in his own name with the cashier=s check he
received at Advance Bank. His wife, Sharon Kotrba, was
named the beneficiary of the account. Nobani proceeded to
write checks from the account for his own personal use. He
paid off a car loan of $11,545.99 and wrote checks to ACash@
for large sums. 2
2
As of August 17, 2001, the balance of Rice=s funds in Nobani=s account
was $2,313.60. Nobani returned the entire sum of Rice=s funds pursuant to a
probate court order. He was criminally charged, but not convicted. Nobani
did not testify in respondent=s hearing.
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On Monday, August 6, 2001, Fardous Hassan, Rice=s
neighbor and the beneficiary of her will, went to Hemlock Bank
and spoke to JoAnne Reiser. As a result of that conversation,
Reiser contacted the Oak Lawn police department and PLOWS
Council on Aging (PLOWS). 3 Detective Christopher Parker of
the Oak Lawn police department testified that he went to Rice=s
home later that day after speaking to both Reiser and the Oak
Lawn health inspector. 4 Detective Parker explained that
respondent was at Rice=s condominium when he arrived.
Respondent showed Detective Parker a retainer agreement
signed by Rice, identified himself as Rice=s attorney and told
the detective that he was not permitted to speak to Rice
outside of respondent=s presence. Detective Parker stated that
he ignored respondent=s directions because he was there to
conduct a well-being check, not a criminal investigation.
Detective Parker reported his observations of Rice=s
condominium. He stated that Rice lived an Aeccentric@ life. She
slept on two folding chairs in her kitchen. Her kitchen counters
were covered with collectable items, and both bedrooms, as
3
PLOWS is a social service agency which provides services for elderly
individuals residing in the communities of Palos, Lemont, Oak Lawn,
Worth and Stickney.
4
Detective Parker testified that he learned from Alena Visnic, the Oak
Lawn residential health inspector, that paramedics were called to Rice=s
apartment in July 2001 after she collapsed from the heat. Visnic did a well-
being check on Rice after the collapse, and on that day, Rice had a pot
burning on the stove. Rice had no recollection of these incidents when
confronted by the detective.
-7-
well as the bathroom, were filled, floor to ceiling, with her
belongings. He added that Rice was confused and agitated.
Rice repeatedly stated that she was tired of people asking her
about her money and that she just wanted to be left alone.
Detective Parker noted that he had not questioned her about
financial matters during his visit.
Upon leaving Rice=s home, Detective Parker advised
respondent that PLOWS would be contacted regarding Rice=s
living conditions. Detective Parker then left his business card in
Nobani=s door with a note saying, APlease call me regarding
Ms. Rice.@ Detective Parker stated that he received a voice
mail message from respondent later that day saying something
to the effect of, AYou=re put on notice that I represent Farouq
Nobani as well as Corrine Rice. *** I have to go out of town to
Washington, D.C., on a seminar, and I would appreciate it if
you wouldn=t have any contact or speak to them until I return.@
Later that day, respondent went to the PLOWS office with
Nobani. Respondent testified that he went there because he
was concerned that Fardous Hassan was taking advantage of
Rice and wanted to report her.
Reiser testified that respondent contacted her at Hemlock
Bank on that day. Respondent told her that he drew up another
power of attorney, and Detective Parker had reviewed it and
said respondent should bring it to the bank. Reiser advised
respondent that she would not allow anyone on her staff to
notarize the document.
Jessica O=Leary, a caseworker employed by PLOWS,
testified that she visited Rice on Tuesday, August 11, 2001, to
conduct a well-being and safety check. She discussed the
power of attorney with Rice. At first, Rice did not remember
signing it; she then said that signing it was a mistake. Rice
stated that she did not want the power of attorney and could
handle her own finances. O=Leary thus presented Rice with a
revocation of her power of attorney and Rice signed it. O=Leary
opined that Rice was suffering from dementia and stated that
Rice was confused, agitated and disoriented as to place and
time. Nevertheless, she felt that Rice knew what she was
signing when she signed the revocation document.
-8-
On August 7, 2001, respondent left for a vacation and did
not return until August 12, 2001. Upon returning, he learned,
from a telephone message from Nobani, that PLOWS was
seeking to freeze Rice=s accounts and a hearing was
scheduled the following day in probate court. He was not
served with notice of the proceeding. On the morning of August
13, 2001, before the hearing, respondent contacted PLOWS=s
attorney, Janna Dutton.
Dutton testified that she was hired to represent PLOWS
with respect to Rice=s case. Although she was serving as its
counsel, Dutton denied advising PLOWS to obtain revocations
of Rice=s power of attorney and will. In any event, Dutton stated
that PLOWS asked her to file a petition allowing PLOWS=s staff
to access Rice because they believed Nobani improperly
withdrew funds from Rice=s account. Dutton stated that she
received a call from respondent prior to the hearing on these
motions. Respondent stated that he represented Nobani. He
then asked her why she was bringing a petition to freeze Rice=s
accounts when A[t]hey [the banks] didn=t give us any money
anyway.@ Dutton testified that respondent did not reveal that
Nobani had already withdrawn funds from the bank.
Respondent testified that he recalled having a conversation
with Dutton prior to the probate hearing, but did not recall the
content of the conversation. Respondent also denied telling
anyone that he represented Nobani at an any time during the
course of his representation of Rice. Specifically, respondent
stated that the witnesses who testified that he represented
himself as Nobani=s attorney were either Aconfused or they
have misunderstood. *** I=m always very clear. I am an
attorney. This is for Nobani. If they put the two together, that=s
something that they misunderstood. I never told anyone that I
was Farouq Nobani=s attorney.@
The record of the probate hearing demonstrates that
respondent identified himself as the attorney who prepared
Rice=s power of attorney. When asked by the court if he
represented Nobani, respondent stated, AI=m not representing
Nobani.@ The court then stated: ANow, this alleges Naboni [sic]
and Winthrap [sic] [went] to the bank, attempted to close one of
her accounts there.@ Respondent replied: AWhen Mr. Naboni
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[sic] and I went to the bank Mr. Naboni [sic] asked me to
accompany him. And they weren=t there to close accounts.
They were there because there were unpaid bills. And I have
those unpaid bills, condo assessments, utilities and
installments and property taxes. But at no time did anyone ever
say anything about closing accounts.@ Respondent did not
advise the court that Nobani closed Rice=s account at Advance
Bank and left the bank with a cashier=s check for a large sum of
money.
Dutton informed the court that it was her understanding
Athat Mr. Winthrop had an ongoing interest with Mr. Nobani.@
The court replied: AAnd I=m not having a hearing as to whether
or not you represented Miss Rice or Mr. Nobani. And you=re in
kind of shaky waters here and I=m leaving it up to you and the
Commission of Professional Ethics to do the right thing.@ The
probate court then entered an order for PLOWS to provide
necessary assistance to Rice and for Rice=s accounts to be
frozen.
The probate court ultimately determined that Rice was
incapable of making personal and financial decisions and
appointed the office of the public guardian as plenary guardian
of her person and estate. Stephen Allen Murphy, the court
appointed guardian ad litem, testified that Rice needed this
protection because she was disoriented as to time and place,
easily persuadable and unable to make decisions.
At respondent=s disciplinary hearing, several witnesses
testified regarding Rice=s mental state. The Administrator
presented the testimony of Dr. Eden Brandon, who examined
Rice and opined that she suffered from dementia. Dr. Brandon
stated that she based her opinion on Rice=s score on the Multi
Mental State Exam (MMSE) and observations of Rice=s
behavior and living conditions. Dr. Brandon explained that Rice
could not state the correct month, year or date; did not know
the city in which she lived; and had difficulty recalling
information and following directions. Respondent countered
this testimony with the testimony of another doctor, who opined
that the tests conducted by Dr. Brandon to diagnose Rice=s
dementia were deficient. Additionally, Rice=s friend of 40 years,
Mary Cotnoir, testified that she visited Rice in August 2001 and
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that Rice was not confused. She explained that she and Rice
had a conversation wherein Rice disclosed that Athey took all of
her money.@ Rice did not identify Athey.@ Cotnoir opined that
Rice was not confused, she was simply brokenhearted
because her money had been taken from her.
Prior to the close of evidence in this matter, a Cook County
circuit court judge testified on respondent=s behalf. She said
she has personally known respondent for 20 years through his
affiliation with the Masonic organization. It was her belief that
respondent is a person of Autmost integrity.@ She stated that
she did not speak to anyone in the legal community about
respondent and is not aware of respondent=s reputation for
truth, honesty or integrity in the legal community. However, she
believes he is a man of integrity because her late husband
sponsored him for membership in the Masonic Lodge and
would not have done so if respondent=s integrity was
questionable.
The Hearing Board concluded that the evidence presented
at the hearing was insufficient to establish that respondent had
knowledge of, or was compliant with, Nobani=s misconduct.
The Hearing Board acknowledged that Asome of his
[respondent=s] actions, such as accompanying Nobani to the
bank, were highly unusual and perhaps ill-advised.@ The
Hearing Board then stated: AWhile we do not countenance all
of Respondent=s decisions, we attribute his errors in judgment
to inexperience with the subject matter rather than lack of due
care or an intent to defraud his client.@ The Hearing Board then
recommended that the charges against respondent be
dismissed.
The Administrator filed exceptions and objected to the
Hearing Board=s conclusion. The Administrator also sought
leave to file a report regarding prior discipline in the event that
the Review Board found misconduct. The Review Board
concluded that some of the Hearing Board=s findings were
against the manifest weight of the evidence. First, the Review
Board found that the evidence demonstrated that respondent
did breach his fiduciary duty to Rice. Specifically, the Review
Board found that the circumstances of Rice=s mental state
required Aspecial care@ to protect her interests. Instead of
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providing that care, respondent drafted an extremely broad
power of attorney which Acontained no restrictions and
purported to permit Nobani to use and dispose of Rice=s
property in any way he wished.@ The Review Board also
concluded that respondent breached his fiduciary duty when he
did not attempt to protect Rice=s interests when Nobani
withdrew a large sum of her money from Advance Bank.
Next, the Review Board found that respondent engaged in
a conflict of interest in violation of Rule 1.7(b) by representing
Rice when his representation was materially limited by his own
interests and his responsibilities to Nobani. The Review Board
believed the testimony of witnesses who stated that
respondent represented himself as Nobani=s attorney over
respondent=s denial that he made such statements.
Furthermore, the Review Board found that the evidence
showed that respondent tried to protect Nobani=s interests over
Rice=s by drafting the overly broad power of attorney; adding a
clause to the power of attorney designed to protect Nobani;
failing to protect Rice=s interests at the bank; and attempting to
prohibit the police from talking to Rice or Nobani.
The Review Board further concluded that respondent failed
to disclose a material fact to the probate court knowing that
disclosure was necessary when he did not inform the court that
Nobani had obtained Rice=s funds from Advance Bank. The
Review Board also concluded that the evidence showed that
respondent made a misrepresentation of material fact to Dutton
when he stated that Nobani had not procured any of Rice=s
funds, while knowing that Nobani left Advance Bank with funds
from Rice=s account. Finally, the Review Board concluded that
respondent=s misrepresentations to the probate court and
Dutton demonstrated that he engaged in fraudulent, deceitful
conduct and that such conduct served to defeat the
administration of justice or bring the courts or legal profession
into disrepute. After reaching these findings, the Review Board
requested briefing on the issue of sanctions, and granted the
Administrator=s request to provide the board with information
regarding prior discipline.
One member of the Review Board dissented. The dissenter
concurred with the majority=s finding that respondent made a
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material misrepresentation of fact to Dutton, and thus violated
Rule 4.1(a). However, with respect to the other findings of
misconduct, the dissenter reasoned that the majority
improperly overturned the factual findings of the Hearing Board
and usurped the role of fact finder.
The Review Board next issued a recommendation with
respect to sanctions. The Review Board noted that respondent
was previously suspended in 1997, on consent, for two years,
and was ordered to pay restitution to a former client. The facts
in that case demonstrated that respondent induced a client to
invest with a third party and personally guaranteed repayment
by the third party. Respondent then refused to honor the
guarantee, converted a portion of the client=s funds and
ultimately made false statements under oath in the disciplinary
proceeding and civil proceeding which resulted from his
conduct. Respondent was also sanctioned for converting the
settlement funds of another client. The Review Board then
considered respondent=s misconduct in the instant case and
recommended a two-year suspension. The dissent
recommended a one-year suspension.
Respondent sought leave to file exceptions to this court
asserting that the Review Board improperly reversed the
Hearing Board=s findings, and alternatively arguing that the
sanction imposed by the Review Board was unduly harsh. The
Administrator filed a cross-petition for leave to file exceptions,
seeking respondent=s disbarment or, alternatively, a three-year
suspension.
ANALYSIS
Respondent contends that the Review Board impermissibly
substituted its judgment for that of the Hearing Board when it
reversed the Hearing Board=s finding that the charges against
respondent were not proven by clear and convincing evidence.
In response, the Administrator argues that the Review Board
properly reversed the Hearing Board=s judgment, as it was
against the manifest weight of the evidence.
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In an attorney disciplinary proceeding, the Administrator
bears the burden of proving the allegations in the complaint by
clear and convincing evidence. In re Timpone, 208 Ill. 2d 371,
380 (2004); 188 Ill. 2d R. 758(b); 166 Ill. 2d R. 753(c)(6). The
Hearing Board determines whether the burden has been met,
and this court will generally not disturb the Hearing Board=s
factual findings unless they are against the manifest weight of
the evidence. In re Timpone, 208 Ill. 2d at 380. A decision is
against the manifest weight of the evidence only if the opposite
conclusion is clearly evident. Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88
(1992). The mere fact that an opposite conclusion is
reasonable or that the reviewing court might have ruled
differently will not justify reversal of a Hearing Board=s decision.
See Abrahamson, 153 Ill. 2d at 88. Indeed, the findings of fact made
by the Hearing Board are to be treated virtually the same as the findings of
any initial trier of fact. Timpone, 208 Ill. 2d at 380. The Hearing
Board is afforded great deference because it is in the best
position to observe the witnesses= demeanor and judge their
credibility, resolve conflicting testimony, and render other fact-
finding judgments. In re Spak, 188 Ill. 2d 53, 66 (1999); In re
Hopper, 85 Ill. 2d 318, 323 (1981). Although the Hearing
Board=s findings of fact are entitled to deference, this court is
responsible for correcting errors in the application of those
facts to the law. In re Owens, 144 Ill. 2d 372, 377 (1991).
I. Breach of Fiduciary Duty
Respondent first contends that the evidence presented by
the Administrator was insufficient to prove, clearly and
convincingly, that he breached his fiduciary duty to Rice and,
therefore, the Review Board erred in reversing the Hearing
Board=s findings as against the manifest weight of the
evidence. The Administrator counters that the evidence
demonstrated that respondent breached his fiduciary duty to
Rice when he drafted an overly broad power of attorney that
did not afford Rice adequate protections and included language
that was designed to protect Nobani; failed to exercise a
heightened duty of care in drafting the document in light of
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Rice=s age and life circumstances; and failed to protect Rice=s
interests when he accompanied Nobani to Advance Bank.
The attorney-client relationship constitutes a fiduciary
relationship as a matter of law. In re Gerard, 132 Ill. 2d 507,
529 (1989). An attorney=s fiduciary relationship with his client is
one of Aundivided fidelity.@ In re Vrdolyak, 137 Ill. 2d 407, 422
(1990). As fiduciaries, attorneys owe to their clients A >the basic
obligations of agency: loyalty and obedience.= @ Horwitz v.
Holabird & Root, 212 Ill. 2d 1, 9 (2004), quoting Restatement
(Second) of Agency '14N, Comment a, at 80 (1958).
Turning to the Administrator=s first allegation, the Hearing
Board concluded that respondent did not breach his fiduciary
duty to Rice because the power of attorney he drafted did not
confer powers that were Aout of the ordinary@ and did not
override the statutory or common law protections Rice would
otherwise have been afforded if the Illinois statutory property
power of attorney were used. The Review Board rejected this
conclusion, finding that the power of attorney drafted by
respondent was overly broad and exceeded the customary
purposes and terms of a power of attorney. The issue of
whether the drafting of Rice=s power of attorney amounted to a
breach of fiduciary duty hinges on a legal determination of the
breadth of the document. If the document provided the same
legal protection to Rice that she would have been afforded
under the statutory version, we cannot say that respondent
breached his duty of care. We therefore review this question of
law de novo. Owens, 144 Ill. 2d at 377.
A comparison of the power of attorney in question to the
Illinois statutory property power of attorney demonstrates that
the power of attorney drafted by respondent was not overly
broad. Nobani was given full power and authority to sign Rice=s
name to affidavits, drafts and checks; to withdraw money on
her behalf from any financial instruments or accounts; to
dispose of and use all accounts and real property; to dispose of
and use all of Rice=s monies; and to handle her financial affairs
as he saw fit. The statutory property power form provides the
same powers. Under the statute, a power of attorney is given
authority Ato exercise all powers@ with respect to real estate,
financial institution transfers, securities, tangible personal
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property, safe deposit matters, insurance and annuity
contracts, retirement plan account balances, social security,
unemployment, military service and governmental benefits, tax
matters, claims and litigation, commodities and options,
business interests and operations, secured and unsecured
borrowing, estates and trusts, and all other property powers
and transactions Awhich the principal could if present.@ 755
ILCS 45/3B4 (West 2002). It is implicit in the statutory language
that the agent is authorized to handle these matters in the way
he or she deems appropriate. Nobani was given this same
authority. Thus, because the power of attorney drafted by
respondent provided Nobani with no greater authority than he
would otherwise have been provided under the Illinois statutory
property power form, we cannot conclude that respondent
breached his fiduciary duty on this basis.
The Review Board further found that respondent breached
his fiduciary duty to Rice when he added a clause to the power
of attorney designed to protect Nobani from liability.
Respondent acknowledges that the language he added to the
power of attorney was inartful, but nevertheless maintains that
it did not override the statutory and common law protections
afforded to Rice. Respondent asserts that, even with the added
language stating AI, Farouq Nobani, agree to this Power of
Attorney, and hereby promise to do my very best, but under no
conditions, do I guarantee the outcome of any matter,@ Nobani
was not relieved of liability for negligence, and was still bound
to exercise due care. The Administrator counters that
respondent=s decision to add this language to the power of
attorney demonstrates that respondent=s loyalties were divided
between Rice and Nobani.
Section 3B4 of the Illinois Power of Attorney Act (755 ILCS
45/3B4 (West 2002)) provides that A[t]he agent [of a power of
attorney] will be under no duty to exercise granted powers or to
assume control of or responsibility for the principal=s property
or affairs; but when granted powers are exercised, the agent
will be required to use due care to act for the benefit of the
principal in accordance with the terms of the statutory property
power and will be liable for negligent exercise.@ As the plain
language of the statute makes clear, agents are required to
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exercise due care if they choose to act and will be held liable
for negligent conduct.
The language added by respondent to Rice=s power of
attorney did not serve to relieve Nobani from his responsibility
to act with due care, nor did it relieve him from liability in the
event of negligence. Respondent=s inartfully drafted clause did
nothing more than assuage Nobani=s anxiety. Thus, we cannot
say that respondent breached his fiduciary duty to his client,
Rice, in adding this language to the power of attorney.
The Administrator maintains that respondent was not
exhibiting loyalty to his client when he added language to the
power of attorney designed to protect the agent at his client=s
expense. While we acknowledge that respondent=s actions
show a lack of good judgment, the unrebutted evidence
presented at the hearing indicated that respondent knew that
this language would afford Nobani no more protection than that
to which he was already entitled. The unrebutted evidence also
indicates that respondent added the language believing that it
would ensure the result Rice allegedly desiredBnamely,
obtaining Nobani as her agent. There is no evidence that he
inserted the language intending to protect Nobani. Moreover,
the record demonstrates that respondent explained the effect
of the language to Rice, and she agreed that it should be
added to the document. In light of these facts, we cannot find
that the Hearing Board erred in concluding that the evidence
was insufficient to support the charge against respondent.
The Review Board found that respondent nevertheless
breached his fiduciary duty in failing to draft a power of
attorney that contained added protections in light of Rice=s age
and life circumstances. Drawing from the Review Board=s
findings, the Administrator asserts that, because Rice was an
elderly woman with no family to protect her, who arguably
suffered from some cognitive deficiency, she was clearly at risk
of exploitation and respondent thus had a heightened duty to
protect her interests.
The Hearing Board made no factual findings regarding
Rice=s mental state, and evidence was presented on both sides
of this issue. There was testimony indicating that Rice was
disoriented and confused and that her cognitive deficiencies
-17-
were apparent. Conversely, there was evidence presented
which suggested that Rice was not confused and was able to
function. However, the unrebuted evidence demonstrates that
Rice gave respondent specific instructions regarding her
wishes with respect to the power of attorney, and respondent
followed those instructions. Respondent testified that, in his
opinion, Rice was lucid and understood the nature and purpose
of the document; thus, he did not find it necessary to question
her decisions or her capacity to make them.
The Administrator cites our decision in In re Rosin, 118 Ill.
2d 365 (1987), as support for its contention that respondent
had a heightened duty to draft a document which adequately
protected Rice=s interests in light of her particular
circumstances. We disagree with the Administrator=s
interpretation of Rosin, and find that the case is readily
distinguishable. In Rosin, the respondent was charged with
several rule violations, including failing to demonstrate
Aundivided fidelity@ to his client and engaging in conduct which
Aprejudice[d] or damage[d]@ his client. Rosin, 118 Ill. 2d at 379.
The facts demonstrated that the respondent facilitated his client=s investment in
a small, close corporation, namely, a stamp business. The respondent had a
close personal and professional relationship with a primary shareholder in the
business. The respondent drafted the investment agreement, but did not take
steps to ensure that the investment was in his client=s best interests and
ultimately drafted a document which did not provide adequate protection to his
client. Significantly, the respondent was aware that his client was mentally ill,
sustained a severe head injury which left her with serious physical and mental
deficiencies, and was frequently under the influence of strong prescription
drugs with debilitating side effects. The respondent argued that his drafting of
the agreement was a Aministerial act@ which did not call for the exercise of his
professional judgment. Rosin, 118 Ill. 2d at 379. We disagreed,
stating: AParticularly given Fann=s [the client] precarious
emotional condition [citation], as well as the inherent riskiness
of an investment in a small, close corporation, the respondent=s
drafting of provisions for security in the formal investment
agreement was crucial.@ Rosin, 118 Ill. 2d at 381.
The facts of Rosin are distinguishable from this case
because, there, the attorney was well aware of his client=s
mental deficiencies, which were previously diagnosed by
-18-
medical professionals. The respondent was not required to
make an assessment of his client=s competence, only to be
punished later when his assessment was incorrect.
Furthermore, unlike Rosin, the document drafted by
respondent in this case adequately protected Rice=s interests,
as it mimicked the Illinois statutory property power of attorney
and did not provide Nobani with any additional protections
against liability. Thus, the Rosin case is inapplicable to the
circumstances before us.
Respondent next contests the Review Board=s finding that
he breached his fiduciary duty to Rice by failing to protect her
assets when Nobani withdrew a large sum of money from
Advance Bank and sustained a sizable penalty for the
withdrawal. Respondent asserts that he took several steps to
ensure that Rice=s money was protected, including questioning
Nobani about what he intended to do with the withdrawn funds
and informing Rice about the events that occurred at both
banks.
We are compelled to note that respondent=s testimony with
respect to the events which occurred at Advance Bank at the
time Nobani withdrew the money in question is suspicious.
Respondent=s version of events are difficult to believe when he
states that he sat in a cubicle with Nobani and the bank
manager and, yet, did not have any knowledge of the content
of their conversation. Equally suspect is respondent=s
testimony that he believed Nobani was using the withdrawn
funds to pay Rice=s bills when the evidence demonstrates that
respondent was in possession of the bills and there is no
suggestion that he turned them over to Nobani for payment.
That being said, according to the unrebutted testimony,
respondent accompanied Nobani to the bank at Rice=s request
for the purpose of ensuring that the power of attorney would be
honored and Nobani would gain access to Rice=s accounts.
Nobani acted within the authority that was granted to him by
the power of attorney because, under that document, Nobani
was permitted to withdraw funds and handle Rice=s finances as
he saw fit. Respondent did not have a fiduciary duty to protect
Rice from Nobani=s conduct when Nobani=s conduct was
authorized by the power of attorney Rice had executed.
-19-
Accordingly, while we do not condone respondent=s conduct,
we cannot say that it rises to the level of a breach of fiduciary
duty warranting discipline.
II. Conflict of Interest
Respondent next asserts that the Review Board erred in
reversing the Hearing Board=s findings with respect to the issue
of conflict of interest. The Review Board found that respondent
violated Rule 1.7(b) because his representation of Rice was
materially limited by his own interests and his responsibility to a
third party, namely, Nobani. The Review Board concluded that
the Hearing Board=s dismissal of this charge was against the
manifest weight of the evidence because respondent held
himself out to several persons as Nobani=s attorney.
Respondent maintains that the Review Board once again
improperly substituted its judgment for that of the fact finder.
The Administrator argues that respondent did represent Rice
under a conflict of interest because he held himself out as
Nobani=s attorney in word and in deed and engaged in conduct
aimed at benefitting Nobani at Rice=s expense, namely, failing
to advise Rice against choosing Nobani as her agent and
failing to protect Rice=s funds. 5
Rule 1.7(b) provides: AA lawyer shall not represent a client if
the representation of that client may be materially limited by the
lawyer=s responsibilities to another client or to a third person, or
by the lawyer=s own interests.@ 134 Ill. 2d R. 1.7(b). In
5
The Review Board also concluded that respondent engaged in a conflict
of interest by and adding language to Rice=s power of attorney that was
intended to protect Nobani at Rice=s expense. As we have already concluded
that this language did not have this effect, we will not revisit the issue even
though it is raised again by the Administrator and was considered by the
Review Board.
-20-
considering whether respondent represented Rice under a
conflict of interest, we are mindful that, while the circumstances
of respondent=s representation of Rice may arouse suspicion,
Asuspicious circumstances, standing alone, are not sufficient to
warrant discipline.@ In re Lane, 127 Ill. 2d 90, 111 (1989).
The facts of this case demonstrate that Nobani and his wife,
Kotrba, contacted respondent to prepare a will for Rice, an
elderly woman in their apartment complex whom they recently
befriended. Their decision to contact respondent was not
randomBthey contacted him because Nobani and respondent
had an ongoing business relationship. In the course of
discussing the will, respondent agreed to draft a power of
attorney for Rice. Respondent testified that the power of
attorney was Rice=s idea and was drafted at her behest. As
previously noted, one can question the veracity of this claim, as
witnesses testified that Rice was not alert enough to know the
year or the city in which she lived, thus making it difficult to
believe that she knew that she wanted a power of attorney and
requested one without solicitation. Nevertheless, respondent=s
testimony, which was unimpeached, indicated that Rice wanted
a power of attorney and gave specific directions regarding her
desired agent and the authority she intended to convey to him.
There is no evidence suggesting that respondent influenced
Rice=s decision or that he assisted Nobani in exerting influence
over Rice.
Once the power of attorney was executed, Nobani withdrew
a large amount of money from Rice=s bank account and then
misappropriated the funds for his own use. There is no
evidence that respondent participated in or benefitted from the
misappropriation. Subsequently, an investigation into Rice=s
living conditions ensued, stemming partly from concerns about
Rice=s dealings with Nobani and respondent, and partly from
previous events that occurred resulting in Rice requiring
medical attention. During the course of the investigation,
respondent accompanied Nobani to the PLOWS office to
obtain information about the investigation and present Nobani=s
Aside of the story.@ Respondent also advised the investigating
detective not to speak to Nobani without respondent being
present.
-21-
We recognize that the Administrator presented the
testimony of Alston Rucker, Janna Dutton and Detective
Parker, who said that respondent identified himself as Nobani=s
attorney. Yet, Rucker=s testimony was impeached by his prior
deposition testimony. Dutton testified that respondent told her
he was representing Nobani, but she did not relay that
information to the probate court when given the
opportunityBinstead, she advised the court that it was her
Aunderstanding@ that respondent had an Aongoing interest@ with
Nobani. Detective Parker=s testimony was based on his
recollection of one telephone message which he heard some
four years prior. Considering these facts, we cannot say that
the Hearing Board=s decision to reject this testimony was
against the manifest weight of the evidence. Moreover,
respondent adamantly denied ever stating that he was
Nobani=s attorney, and explained that persons who believed he
made such a representation must have been confused or
drawn their own assumptions based on the fact that he
assisted Nobani at Rice=s behest. Respondent also stated on
the record in the probate proceeding that he was not
representing Nobani.
We cannot ignore the fact that respondent=s conduct with
respect to Rice and Nobani was suspicious, and at the very
least, demonstrated extremely poor judgment. However, the
evidence presented regarding respondent=s loyalties and
responsibilities to Nobani was conflicting. The Hearing Board,
which heard all of the evidence and was in the best position to
assess the credibility of the witnesses and weight that should
be afforded to their testimony, determined that there was a
Alack of any clear evidence that Respondent was representing
Nobani in a legal matter or that he was placing Nobani=s
interests ahead of Rice=s.@ In light of the conflicting evidence
presented, we cannot say the Hearing Board=s judgment was
so unreasonable as to be against the manifest weight of the
evidence. Accordingly, we conclude that the Review Board
improperly substituted its judgment for that of the fact finder in
this regard.
III. Failure to Disclose a Material Fact to a Tribunal
-22-
Respondent next asserts that the Review Board erred in
finding that he committed a violation of Rule 3.3(a)(2) when he
failed to advise the probate court that Nobani had closed Rice=s
account at Advance Bank and was in possession of a
substantial amount of her funds. Rule 3.3(a)(2) provides: AIn
appearing in a professional capacity before a tribunal, a lawyer
shall not: *** (2) fail to disclose to a tribunal a material fact
known to the lawyer when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client.@ 134 Ill. 2d R
3.3(a)(2). Respondent maintains that he could not have
violated this rule because Nobani was not his client. The
Administrator counters that the Review Board=s decision was
proper because respondent told several persons that he was
Nobani=s attorney and behaved as if Nobani was his client.
We find that the Review Board erred in finding that
respondent violated Rule 3.3(a)(2). The Hearing Board
determined that the evidence presented was insufficient to
establish that respondent was acting as Nobani=s attorney or
that respondent had any knowledge that a criminal or
fraudulent act either had been committed or was going to be
committed by Nobani. We cannot say that this finding was
against the manifest weight of the evidence. As previously
stated, conflicting evidence was presented regarding
respondent=s statements concerning representation of Nobani.
The Hearing Board assessed the credibility of the witnesses
and the weight that should be afforded to their testimony, and
ultimately settled the conflict in respondent=s favor. It=s
conclusion was supported by the evidence. As respondent
asserts, Rule 3.3(a)(2) applies if an attorney fails to disclose
the criminal or fraudulent act of a client; we cannot apply the
rule here, where the fact finder reasonably found the evidence
to be insufficient to show that respondent represented Nobani.
Likewise, with respect to knowledge of fraudulent conduct,
the Hearing Board concluded that there was no evidence
presented which demonstrated that respondent was Ain
cahoots@ with Nobani or knew of Nobani=s improper usage of
Rice=s funds. The evidence demonstrates that respondent was
aware that Nobani withdrew money from Rice=s account at
Advance Bank, and although respondent testified otherwise,
-23-
we do not believe that he was unaware of the actual sum
removed, given that he was present during Nobani=s
conversations with the bank manager and physically in the
same room when Nobani received the check. However, there
is no indication that Nobani shared his plans to misappropriate
the money with respondent, that respondent benefitted from
the misappropriation or that respondent assisted Nobani in any
fraudulent conduct. Accordingly, the Hearing Board=s
determination that the evidence was insufficient to prove a
violation of Rule 3.3(a)(2) was not against the manifest weight
of the evidence.
We note, however, that our conclusion in this regard is not
meant to condone respondent=s conduct. Respondent attended
the probate proceeding knowing that PLOWS was going to
present a petition to freeze Rice=s assets based on its belief
that Nobani was improperly handling her finances. Respondent
knew, at the very least, that Nobani walked out of Advance
Bank with a check from Rice=s account. Although respondent
denies knowledge of Nobani=s discussions with Alston Rucker
at Advance Bank, the facts show that respondent sat next to
Nobani during the entire transaction. It stands to reason that he
was aware that Nobani closed Rice=s CD account and had the
check made payable to himself . Nevertheless, respondent
stood silent as Nobani told the probate judge that he needed
access to Rice=s money so he could pay her bills, even though
respondent had to know that Rice=s bills did not exceed the
amount already obtained by Nobani, particularly since the
record establishes that respondent was in possession of the
bills. Respondent should have disclosed this information to the
court, as it was clearly significant in light of the nature of the
proceedings at hand. While his failure to do so may not be
sanctionable under Rule 3.3(a)(2), we feel compelled to note
that respondent=s conduct demonstrates a lack of judgment
that is quite disturbing, particularly for a long-standing member
of the bar who was previously sanctioned for dishonest
conduct. We likewise remind respondent that A[a] lawyer=s >high
vocation is to correctly inform the court upon the law and the
facts of the case and to aid it in doing justice and arriving at
correct conclusions.= @ In re Braner, 115 Ill. 2d 384, 392 (1987),
-24-
quoting People ex rel. Attorney General v. Beattie, 137 Ill. 553,
574 (1891).
IV. False Statement of Material Fact to a Third Person
Respondent next asserts that the Review Board erred in
reversing the Hearing Board=s finding that the evidence was
insufficient to prove that respondent violated Rule 4.1(a) by
providing false information to Janna Dutton when he told her
that she did not need to pursue an order to freeze Rice=s
assets because Nobani was denied all access to Rice=s
accounts. The Administrator counters that the Hearing Board=s
judgment was against the manifest weight of the evidence, as
Dutton=s testimony regarding respondent=s statements was
unrebutted. 6
Rule 4.1(a) provides: AIn the course of representing a client
a lawyer shall not: (a) make a statement of material fact or law
to a third person which statement the lawyer knows or
reasonably should know is false.@ 134 Ill. 2d R. 4.1(a).
In this case, the Hearing Board determined that
respondent=s conduct during the telephone conversation with
Dutton did not rise to the level of a violation of Rule 4.1(a).
Specifically, the Hearing Board stated that discipline was not
required because respondent had no knowledge as to what
Nobani had done with Rice=s funds and respondent=s
statements to Dutton did not change her course of action,
insofar as she still sought the freeze order on Rice=s accounts.
The Hearing Board also noted, in a footnote, that it had
questions about Dutton=s credibility, as she testified that she
did not recall another conversation with a PLOWS caseworker.
The Hearing Board, however, did not make an actual credibility
determination.
6
The Administrator also alleges that respondent told Dutton that he
represented Nobani. However, as we have previously addressed the issue,
we will not revisit it.
-25-
The Review Board determined that the Hearing Board=s
finding was against the manifest weight of the evidence, as the
unrebutted evidence presented at the hearing demonstrated
that respondent made a material misrepresentation to Dutton.
We agree with the Review Board=s conclusion.
The evidence presented to the Hearing Board
demonstrated, clearly and convincingly, that respondent made
a false statement of fact to Dutton. Dutton described her
conversation with respondent in detail, and unequivocally
testified that respondent stated that Nobani was denied access
to Rice=s funds. Dutton testified that respondent specifically
asked her why she was bringing a petition to freeze Rice=s
accounts when A[t]hey [the banks] didn=t give us any money
anyway.@ She stated that she recalled the conversation in detail
because she believed respondent, and thought that she would
not have to pursue the freeze order as aggressively as she
initially had planned. Respondent provided no evidence which
impeached Dutton=s statements. In fact, respondent did not
even deny that he made the statements. Respondent merely
testified that he could not recall the content of his conversation
with Dutton.
Respondent urges that Dutton=s testimony was incredible
and, in support, points to conflicts between Dutton=s testimony
and that of caseworker O=Leary with respect to the revocations
of Rice=s will and power of attorney. We are aware of the
conflicts in that testimony, but we find that it has no bearing on
the issue before us. Dutton=s testimony regarding respondent=s
false statements to her was uncontradicted and unimpeached.
There was no conflict over this evidence, as respondent did not
deny making the statements Dutton attributed to him.
Accordingly, we reject respondent=s credibility argument.
Furthermore, the evidence presented demonstrated that
respondent had to know that his statement to Dutton was false,
as he was physically present when Nobani closed Rice=s bank
account at Advance Bank, watched Nobani receive a cashier=s
check, and by his own admission, asked Nobani what he
intended to do with the money. Respondent=s false statement
was material, because preventing Nobani from accessing
Rice=s funds was one of the primary purposes of the probate
-26-
hearing. Providing the court with information that could have
aided in protecting Rice=s assets should have been
respondent=s main concern as Rice=s attorney. Had Dutton
acted upon respondent=s false statement, Nobani could have
continued to deplete Rice=s resources.
The Hearing Board ignored this evidence, and found that
discipline was unwarranted. However, we conclude the basis of
its judgment was improper. Regardless of facts demonstrating
that respondent did not know about Nobani=s improper conduct
and, likewise, did not actually impede Dutton=s actions in
protecting Rice, the evidence shows that respondent made a
false statement of material fact to Dutton. Whether
respondent=s falsehood ultimately had an effect on Dutton=s
conduct is inconsequential. Accordingly, we conclude that the
Hearing Board=s finding was against the manifest weight of the
evidence, and thus find that the Review Board properly
reversed the Hearing Board=s judgment with respect to this
charge.
V. Conduct Involving Dishonesty, Fraud, Deceit or
Misrepresentation
Because we have concluded that respondent made a false
statement of material fact to Dutton, we necessarily conclude
that respondent violated Rule 8.4(a)(4) and Supreme Court
Rule 771. Rule 8.4(a)(4) provides that a lawyer shall not
Aengage in conduct involving dishonesty, fraud, deceit or
misrepresentation.@ 188 Ill. 2d R. 8.4(a)(4). Supreme Court
Rule 771 provides that conduct Awhich tends to defeat the
administration of justice or to bring the courts or the legal
profession into disrepute shall be grounds for discipline by the
court.@ 134 Ill. 2d R. 771. Respondent violated both of these
rules when he relayed false information to Dutton regarding
Nobani=s ability to access Rice=s funds. His conduct involved
dishonesty, deceit, and misrepresentation which brought the
legal profession into disrepute.
VI. Sanctions
-27-
The Administrator asserts in its cross-appeal that
respondent should be disbarred for his conduct in handling the
preparation of Rice=s will and power of attorney. In support of
its claim, the Administrator cites several cases where attorneys
received lengthy suspensions or were disbarred for defrauding
elderly clients or converting their funds. See In re Holst, 201 Ill.
2d 628 (2002); In re Wiard, 198 Ill. 2d 662 (2002); In re
Garside, 195 Ill. 2d 607 (2001); In re Bartley, M.R. 15176
(1998); In re Singer, M.R. 14064 (1997); In re Rotman, 136 Ill.
2d 401 (1990). We have not found that respondent committed
fraud or engaged in conversion of Rice=s funds. Accordingly,
we will not consider the Administrator=s arguments in this
regard. We nevertheless agree with the Administrator=s
assertion that respondent=s misconduct was serious in nature,
and thus reject respondent=s argument that censure, at most, is
an appropriate sanction.
We bear in mind that this court is not bound by the
disciplinary recommendations of either the Hearing Board or
the Review Board because those recommendations are
advisory and this court bears the ultimate responsibility for
imposing discipline. In re Howard, 188 Ill. 2d 423, 434 (1999).
The purpose of attorney disciplinary proceedings is not to
punish the attorney, but rather to protect the public, maintain
the integrity of the legal profession, and protect the
administration of justice from reproach. In re Spak, 188 Ill. 2d
53, 67-68 (1999). We are mindful of the goals of consistency and
predictability in the imposition of sanctions. In re Rosin, 118 Ill. 2d
365, 387 (1987). However, we recognize that each case is unique
and must be decided on its own facts. In re Crane, 96 Ill. 2d 40, 65
(1983). This court considers evidence in aggravation and mitigation prior to
imposing sanctions. In re Lidov, 129 Ill. 2d 424, 430 (1989).
In determining the appropriate sanction for respondent, we
consider in aggravation the fact that respondent was previously
suspended from the practice of law for two years for dishonest
and deceitful conduct, which involved failing to honor a
guarantee respondent made to a client on a promissory note;
converting client funds on two separate occasions; and making
false statements under oath in a disciplinary proceeding and a
civil proceeding. We find it significant that respondent=s prior
-28-
discipline stemmed from conduct involving dishonesty and the
telling of falsehoods. We also consider aggravating the fact
that respondent=s misstatement to Dutton evinces a disregard
for the interests of his client. Instead of assisting Dutton in
protecting the elderly Rice, respondent made a material
misrepresentation of fact which, if heeded, would have allowed
Nobani to continue to pilfer Rice=s funds. Had Dutton chosen to
forgo the freeze order, respondent=s misrepresentation would
have given Nobani further opportunity to victimize Rice.
Conversely, we consider in mitigation the lack of evidence
demonstrating that respondent knew of Nobani=s plan to
improperly convert Rice=s funds, received any funds from
Rice=s account or benefitted in any way from Nobani=s conduct.
Although respondent saw fit to deceive Dutton regarding
Nobani=s ability to access Rice=s funds, we cannot conclude,
based on the evidence presented, that he provided false
information for his personal benefit.
Considering the serious nature of respondent=s conduct, the
circumstances surrounding it, and his significant prior
discipline, we conclude that a two-year suspension is
appropriate in this case.
Respondent suspended.
-29-