This case involves a lawyer who was the executor of his father’s estate and who, allegedly, took loans from the estate. The prosecution follows a recent trend – the ARDC has often prosecuted lawyers for conduct that does not relate to their legal work if the ARDC believes that the conduct was improper, deceptive or fraudulent. In almost all of these cases, the lawyer took some action that caused financial harm to others.
The ARDC hearing board found that there were violations of the rules and recommended a one year suspension of the lawyer.
The ARDC review board reversed that finding and recommended that all charges against the lawyer be dismissed. The Review Board found no breach of fiduciary duty – and noted that there was no attorney-client relationship between the lawyer and the estate. The Review Board criticized the use of the “breach of fiduciary duty” language. It also held that the loans made by the executor to himself were not “self-dealing” under trust law.
The Review Board’s decision, is, in my opinion, inconsistent with trust law. An executor who takes loans out from an estate is engaging in self-dealing and is putting other heirs’s money at risk. It is a classic example of self-dealing and should not be permitted by any court or lawyer.
The significance of this case is that the ARDC’s petition to have the case heard by the full Illinois Supreme Court was accepted. The case will be argued soon. My prediction is that the Review Board opinion will be reversed and discipline imposed on the attorney.
Edward X. Clinton, Jr.