Hello everyone and welcome to this Ethics Alert which will discuss the recent Illinois Supreme Court Order which imposed a one year suspension on a law firm partner who falsified and received $69,800.00 in client expense reimbursement claims. The case is In re: Lee Mark Smolen, Disciplinary Commission, M.R.27199, No. 2013PR00060 (March 12, 2015). The summary disciplinary Order is here: https://www.state.il.us/court/SupremeCourt/Announce/2015/031215.pdf
As I reported in my January 12, 2015 Ethics Alert, a law firm audit found that the lawyer had submitted $69,800.00 in falsified taxi expenses and questioned an additional $379,000.00 reimbursed expenses. The lawyer admitted that he “falsified and submitted for reimbursement more than 800 receipts for cab rides he did not take. He further admits he received reimbursement totaling $69,800 for the fabricated receipts.”
According to the Hearing Board Report, the expenses were charged to an unallocated client account which was “virtually unmonitored”. The lawyer agreed that the law firm could withdraw $400,000.00 from his account to cover the expenses and the cost of the audit and he testified he used the cab money to pay for client entertainment, saving the time of making out expense reports. He testified that he only slept three or four hours a night and typically spent 12 to 15 hours a day at work.
The Report further stated that the lawyer’s “mental health issues and his misconduct” were considered and one doctor opined there was a “loose association” between the lawyer’s personality disorder and his misconduct because the lawyer “was excessively devoted to work as a result of his obsessive-compulsive disorder.” Another doctor stated that the lawyer’s depressive disorder and anxiety disorder led to “tremendous impairment of judgment” which led to the misconduct. Both doctors found that the lawyer’s mental health played at least a minor role in his misconduct and gave it “some weight” as a mitigating factor.
According to the Report: “We recognize that the amount of Respondent’s falsified expenses is greater than the amounts in the (cited) cases but in light of (the lawyer’s) significant mitigation we do not believe a suspension of more than one year is warranted. We believe a one-year suspension addresses the severity of the misconduct and also takes into consideration the substantial mitigating factors.”
The Report recommended that (the lawyer) be suspended for one year and until he completed at least twelve months of continuous treatment with a psychiatrist. The lawyer’s suspension would terminate after one year if he “demonstrates his completion of treatment to the Administrator’s satisfaction.” The Illinois Supreme Court adopted the Report and suspended the lawyer for one year with the recommended conditions.
Bottom line: As I said previously, this lawyer admitted that he falsified and submitted for reimbursement more than 800 receipts for cab rides he did not take and received payment for nearly $70,000.00 from clients for the fabricated receipts. An audit also questioned an additional $379,000.00 in reimbursed expenses. In light of the large amount of the lawyer’s admitted misappropriation, it is surprising that the Board did not recommend disbarment for the misconduct and also that the Illinois Supreme Court approved the one year suspension recommendation.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
