making it clear that client funds remain client funds, even if not deposited into a trust account, and that provided such funds were not converted by other means, depositing such funds into a non-trust account did not defeat the nature of funds
How later courts described this case
- making it clear that client funds remain client funds, even if not deposited into a trust account, and that provided such funds were not converted by other means, depositing such funds into a non-trust account did not defeat the nature of funds
- defining conversion in the context of a disciplinary proceeding as “any unauthorized act, which deprives a man of his property permanently or for an indefinite time,” where the property at issue was the client’s share of proceeds of a settlement (internal quotation marks omitted)
Written by the judges who cited it.
The opinion
JUSTICE HEIPLE, specially concurring:
I join fully the thoughtful opinion of the court in this lawyer discipline case. Although attorney Rosin was willing to accept a finding of censure and did not ask that the charges be dropped in their entirety, the majority quite appropriately rules in this fashion sua sponte and tailors the result as justice requires.
I write to clarify the true issue on appeal. At issue is not whether a separate client trust fund was required before In re Elias (1986), 114 Ill. 2d 321 , as suggested by the dissenting justice (156 Ill. 2d at 213-14). As the dissenting justice notes, Rule 9 — 102(a) has required such an account since 1980, and this court’s recognition of the obligation to maintain the separate identity of client funds was expressed as early as 1932.
Instead, this case presents the more subtle issue of the extent of a client’s interest in a settlement draft after he exchanged it for a law firm check which the lawyer knew would be honored upon presentment. All parties agree that, had that client received cash, a bank draft or a money order in exchange for the settlement draft, he would have retained no interest whatsoever in the settlement draft. Rosin made a fair inference that exchanging a check that he knew would be honored likewise rendered his client with no interest in the settlement draft.
Thus, the significance of Elias is not the clarification of the need for a separate client trust account. It is the clarification that such a check does not divest the client of all his interest in the settlement draft. Once this clarification was handed down by this court, attorney Rosin voluntarily ceased his payment method and adopted the trust fund approach. He did this despite the fact that Elias was arguably not on point. As the majority notes (156 Ill. 2d at 208-09), Elias can be distinguished because of the lack of safeguards used by Elias as well as the knowing use of false pretenses, factors not present in the instant case.
In short, Rosin is entirely blameless. The worst that can be said is that he came to a different conclusion than this court regarding his clients’ interests in settlement drafts exchanged for checks which he knew would be honored, a conclusion that can hardly be defined as unreasonable. And as already noted, once this court’s conclusion to the contrary was articulated, Rosin deferred.
Moreover, it should be noted that Rosin’s method of settlement with his clients was calculated to benefit the client, not Rosin. He could have deposited the insurance settlement draft into a trust fund account and then waited a week or 10 days for it to clear and then settle up with the client. Instead of doing that, Rosin, in effect, advanced his own money so that the client could have his settlement without delay. The alleged infractions hurt nobody, had no potential to hurt anybody, and were performed with a manifest intent to further the clients’ interests as well as comply with the law. His actions did not threaten the integrity of the profession or the parties’ interests, and they were performed before this court indicated that they might be improper.
Accordingly, I agree that the appropriate disposition in this case is to dismiss all the charges against Mr. Rosin without blemish to his reputation for integrity and fair dealing.
JUSTICE FREEMAN joins in this special concurrence.