Ethics and Administration of Justice and Respondent Key Cite Yellow Flag – Negative Treatment
Distinguished by In re Riehlmann, La., January 19, 2005
125 Ill.2d 531
Supreme Court of Illinois.
In re James H. HIMMEL, Attorney, Respondent.
No. 65946.
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Sept. 22, 1988.
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Rehearing Denied Jan. 30, 1989.
Synopsis
In a disciplinary proceeding, the Supreme Court, Stamos, J., held that attorney’s failure to report misconduct on part of the attorney who has formerly represented the client and has converted client’s settlement, in violation of the rule, warrants a one-year suspension, not a merely private reprimand.
Ordered accordingly. West Headnotes (7)
[1]
Attorney and Client
EvidenceActions of client would not relieve the attorney of his own duty to report another attorney’s misconduct, and accordingly, dispute as to whether client informed Attorney Registration and Disciplinary Commission of misconduct on part of client’s former attorney is irrelevant to resolving whether attorney violated Disciplinary Rule by failing to disclose information regarding the other attorney’s misconduct. Code of Prof.Resp., DR 1-103(a), S.H.A. ch. 110A, foll. ¶ 774.
9 Cases that cite this headnote
[2]
Attorney and Client
Defenses
Client’s direction that attorney not report misconduct on part of another attorney does not provide a defense to charge against an attorney for failure to disclose misconduct. Code of Prof.Resp., DR 1-103(a), S.H.A. ch. 110A, foll. ¶ 774.
Cases that cite this headnote
[3]
Attorney and Client
Character and Conduct
If an attorney’s conduct violates rule requiring an attorney to report attorney misconduct, the imposition of discipline for such breach of duty is mandated. Code of Prof.Resp., DR 1-103(a), S.H.A. ch. 110A, foll. ¶ 774.
2 Cases that cite this headnote
[4]
Attorney and Client
Character and Conduct
Information attorney obtained regarding misconduct on part of client’s former attorney who had converted client’s settlement was not protected by attorney-client privilege, so as to exempt attorney from operation of rule requiring him to report attorney misconduct; client had discussed matter with attorney at times when her mother and her fiance were present, and attorney discussed former attorney’s conversion of client’s settlement with insurance company involved, insurance company’s lawyer, and former attorney himself, with consent of client. Code of Prof.Resp., DR 1-103(a), S.H.A. ch. 110A, foll. ¶ 774.
12 Cases that cite this headnote
[5]
Attorney and Client
Character and Conduct
An attorney violates rule requiring him to report attorney misconduct by failing to report another attorney for conversion of client’s settlement, and discipline is required. Code of Prof.Resp., DR 1-103(a), S.H.A. ch. 110A, foll. ¶ 774.
3 Cases that cite this headnote
[6]
Attorney and Client
Nature and Purpose
When determining nature and extent of discipline to be imposed, attorney’s actions must be viewed in relationship to the underlying purposes of the disciplinary process, which purposes are to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard public.
7 Cases that cite this headnote
[7]
Attorney and Client
Definite Suspension
Attorney’s failure to report misconduct on part of client’s former attorney who has converted client’s settlement warrants a one-year suspension, not a merely private reprimand. Code of Prof.Resp., DR 1-103(a), S.H.A. ch. 110A, foll. ¶ 774.
1 Cases that cite this headnote
Attorneys and Law Firms
**790 *534 ***708 William F. Moran, III, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.
James H. Himmel, of Palos Heights, respondent pro se.
George B. Collins, of Collins & Bargione, of Chicago, for respondent.
Opinion
Justice STAMOS delivered the opinion of the court:
This is a disciplinary proceeding against respondent, James H. Himmel. On January **791 ***709 22, 1986, the Administrator of the Attorney Registration and Disciplinary Commission (the Commission) filed a complaint with the Hearing Board, alleging that respondent violated Rule 1-103(a) of the Code of Professional Responsibility (the Code) (107 Ill.2d R. 1-103(a)) by failing to disclose to the Commission information concerning attorney misconduct. On October 15, 1986, the Hearing Board found that respondent had violated the rule and recommended that respondent is reprimanded. The Administrator filed exceptions with the Review Board.
The Review Board issued *535 its report on July 9, 1987, finding that respondent had not violated a disciplinary rule and recommending dismissal of the complaint. We granted the Administrator’s petition for leave to file exceptions to the Review Board’s report and recommendation. 107 Ill.2d R. 753(e)(6).
We will briefly review the facts, which essentially involve three individuals: respondent, James H. Himmel, licensed to practice law in Illinois on November 6, 1975; his client, Tammy Forsberg, formerly known as Tammy McEathron; and her former attorney, John R. Casey.
The complaint alleges that respondent had knowledge of John Casey’s conversion of Forsberg’s funds and respondent failed to inform the Commission of this misconduct. The facts are as follows.
In October 1978, Tammy Forsberg was injured in a motorcycle accident. In June 1980, she retained John R. Casey to represent her in any personal injury or property damage claim resulting from the accident. Sometime in 1981, Casey negotiated a settlement of $35,000 on Forsberg’s behalf.
Pursuant to an agreement between Forsberg and Casey, one-third of any monies received would be paid to Casey as his attorney fee.
In March 1981, Casey received the $35,000 settlement check, endorsed it, and deposited the check into his client trust fund account. Subsequently, Casey converted the funds.
Between 1981 and 1983, Forsberg unsuccessfully attempted to collect her $23,233.34 share of the settlement proceeds. In March 1983, Forsberg retained respondent to collect her money and agreed to pay him one-third of any funds recovered above $23,233.34………..
HIMMEL QUESTIONS.
Read the case of In re Himmel, 125 Ill. 2d 531 (1988), and answer the following four questions:
- How do you think the court’s holding in Himmel could be applied to nonlawyers?
(Your class notes should assist you with this question). (4 points) - How did the court rebut Himmel’s argument that the information shared by his client was privileged? (2 rebuttal factors, 2 points)
- How did the court rebut Himmel’s argument that his failure to report Casey’s misconduct was motivated not by financial gain but by the request of his client?(Give me three mitigating factors and three factors which outweighed the mitigating factors). (6 points)
- Do you agree or disagree with the Court’s decision to suspend Mr. Himmel for 1 year? Give two points in support of your answer. (2 points)
