BEFORE THE HEARING BOARD

Transcription

1 In the Matter of: BEFORE THE HEARING BOARD FILED OF THE ILLINOIS ATTORNEY REGISTRATION OCT AND DISCIPLINARY COMMISSION fllty REG & DISC COMM CHICAGO EDWIN REYES, Attorney-Respondent, Commission No PR00105 No ANSWER TO COMPLAINT EDWIN REYES, an attorney licensed to and practicing law within the State ofillinois under ARDC number , by and through his attorneys, David A. Axelrod & Associates, P.C., for his response to the Complaint filed against him states as follows: (Dishonesty and Lack ofdiligence in Connection with Idalia Mantes De Oca's Workers' Compensation Case) 1. On or about June 19, 2007, Idalia Montes De Oca ("De Oca") injured her left and right hands during the course ofher employment at Small Assemblies, a die casting company. Respondent admits the allegations contained in paragraph 1ofthe 2. On or about June 29,2007, Respondent, then an associate attorney with the law firm ofbriskman & Briskman, and De Oca agreed that Respondent would represent De Oca in connection with her workers' compensationclaim arising from the June 2007 injuries. Respondentand De Oca agreed in writing that Respondent's receipt of an attorney's fee would be contingent upon his recovering a settlementor award on behalfofde Oca, and that generally, Respondent would receive an amount equal to twenty percent ofany recovery. Respondent admits the allegations contained in paragraph 2 ofthe

2 3. On July 2, 2007, Respondent caused an application for adjustment of claim and an attorney representation agreement to be filed with the Illinois Workers' Compensation Commission ("IWCC") on behalfof De Oca against Small Assemblies in the matter entitled Idalia Montes De Oca v. Small Assemblies, claiming De Oca's injuries occurred from repetitive trauma. The application for adjustment ofclaim and attorney representation agreement were signed by De Oca and dated June 29, The IWCC file-stamped the date ofjuly 2, 2007, and case number 07 WC Kurt Carlson to the matter. Respondent admits the allegations contained in paragraph 3 ofthe 4. Arbitrator Carlson continued case number 07 WC from time to time, and in or about October 2009, Respondent, on behalfofde Oca, and Small Assemblies, by its attorneys, agreed to settle De Oca's claim in case number 07 WC Respondent admits the allegations contained in paragraph 4 ofthe 5. On February 22,2010, Small Assemblies, by its attorneys, filed a request for hearing and a motion to dismiss for want ofprosecution case number 07 WC 29605, stating that the parties had reached a settlement but as far as they knew, Respondent had not yet met with De Oca to review the settlement contract. ArbitratorCarlson set the case for status on April 14,2010, and then for trial on April 27, Respondent neither admits nor denies the allegationscontained in paragraph 5 of the Complaint, as he has a vague recollection of this particular filing. However, Respondent does not deny the accuracy of the allegation. 6. On April 27,2010, Arbitrator Carlson advised Respondent and the attorney for Small Assemblies that a final trial date ofmay 25, 2010, was set in case number 07 WC 29605, at which

3 time the executed settlement contracts would be presented for approval or the parties would be prepared for trial, or otherwise the case would be dismissed Respondent neither admits nor denies the allegations contained in paragraph 6 of the Complaint, as he has a vague recollection of this particular discussion. However, Respondent does not deny the accuracy of the allegation. 7. On or before May 24,2010, Respondent photocopied the application for adjustment ofclaim and attorney representation agreement filed in case number 07 WC He whited-out the filed-stamped date of July 2, 2007, and case number 07 WC on the copies and then photocopied the whited-out documents, leaving the photocopied signature of De Oca, date signed and other items filled out as it was on the application and attorney representation agreement filed on July 2, Respondent admits the allegations contained in paragraph 7 ofthe 8. On May 24, 2010, Respondent, anticipating the dismissal of case number 07 WC 29605, filed a copy of the whited-out and photocopied application for adjustment of claim and attorney representation agreement described in paragraph seven, above, with the IWCC. The application contained the word "NONE," after the statement "If a prior application was ever filed for this employee, list the case number and its status." The IWCC assigned case number 10 WC to the filing and Arbitrator Maria Pulia to the matter. Respondent admits the allegations contained in paragraph 8 ofthe Complaint, but states that failing to list prior applications was unintentional. From Respondent's experience, cases involving the same employer and employee are generally consolidated into one claim thus making it unnecessary to list prior applications.

4 9. At no time did Respondent advise De Oca that he was filing the application for adjustment of claim in case number 10 WC or obtain her permission to use a copy of her signature for the application. Respondent admits the allegations contained in paragraph 9 ofthe Respondent further states that De Oca only spoke Spanish and trusted Respondent to act in her best interest. 10. Respondent's alteration and use ofthe application for adjustment of claim filed in case number 07 WC as a new application in case number 10 WC 19756, as set forth in paragraphs seven and eight, above, was dishonest and false and Respondent knew that it was dishonest and false, in that De Oca did not authorize Respondent to file or use her signature in connection with the application for adjustment of claim filed in 2010 and Respondent did not disclose to the IWCC that a prior application had been filed for De Oca in case number 07 WC Respondent admits the allegations contained in paragraph 10 of the Respondent further states that at all times, his intention was to protect De Oca's interests. 11. On May 25, 2010, Respondent appeared before the IWCC in connection with case number 07 WC Respondent stated that he was not ready for trial and did not have an executed settlement contract, and Arbitrator Carlson dismissed the case for want of prosecution. Respondent neither admits nor denies the allegations contained in paragraph 11 ofthe Complaint as he has no recollection ofthis particular discussion. 12. On May 25, 2010, Respondent filed an amended application for adjustment ofclaim on behalfofde Oca in case number 10 WC 19756, adding the body parts "Cervical, Left and Right Arms" affected by the injuries.

5 Respondent admits the allegations contained in paragraph 12 of the Respondent further states that De Oca had not told him of the injuries to her Cervical, Left and Right Arms until after the original claim, 07 WC 29605, had been filed. 13. On our about May 27, 2010, Respondent received a notice ofthe dismissal of case number 07 WC At no time did Respondent advise De Oca of the dismissal. Respondent admits the allegations contained in paragraph 13 of the 14. On July 2, 2010, Respondent filed a motion to reinstate case number 07 WC Respondent admits the allegations contained in paragraph 14 of the 15. On July 12,2010, Small Assemblies, by its attorneys, filed a motion to transfer venue in case number 10 WC 19756, stating that the matter should be assigned to Arbitrator Carlson who had been assigned to the first case involving De Oca's injuries, case number 07 WC Respondent admits the allegations contained in paragraph 15 of the 16. On July 21, 2010, Small Assemblies, by its attorneys, filed a motion to dismiss case number 10 WC 19756, stating that the 2010 application for adjustment ofclaim was identical to the 2007 application and that re-filing the application to avoid a proper dismissal was improper. Respondent admits the allegations contained in paragraph 16 of the 17. On September 1, 2010, Arbitrator Carlson granted the motion to reinstate case number 07 WC 29605, and in or about October 2010, Small Assemblies, by its attorneys, increased its settlement offer to Respondent. Respondent admits the allegations contained in paragraph 17 of the

6 18. On October 25, 2010, at Arbitrator Carlson's direction, Respondent filed a motion to voluntarily dismiss case number 10 WC 19756, and on November 22, 2010, Arbitrator Pulia granted the motion. Respondent admits the allegations contained in paragraph 18 of the 19. On February 7,2011, Respondent did not appear before the IWCC in connection with case number07 WC 29605, and ArbitratorCarlsonagain dismissedthe case for want ofprosecution. Respondent admits the allegations contained in paragraph 19 of the 20. On or about February 22,2011, Respondent received a notice ofthe dismissal ofcase number 07 WC At no time did Respondent advise De Oca ofthe dismissal. Respondent admits the allegations contained in paragraph 20 of the 21. On March 11, 2011, Respondent filed a motion to reinstate case number 07 WC Respondent admits the allegations contained in paragraph 21 of the 22. On or before March 15, 2011, Respondent prepared another application for adjustment of claim and attorney representation agreement on behalf of De Oca, using a copyof the whited-out and photocopied application for adjustment of claim and attorney representation agreement described in paragraph seven, above. He also whited-out the dates after De Oca's signature on the application and attorney representation agreement and added the body parts "Cervical, Left and Right Arms" affected by the injuries.

7 Respondent admits the allegations contained in paragraph 22 of the 23. On March 15, 2011, Respondent filed a copy of the whited-out and photocopied application for adjustment ofclaim and attorney representation agreement described in paragraph 22, above, with the IWCC. The application contained the word "NONE," after the statement "Ifa prior application was ever filed for this employee, list the case number and its status." The IWCC assigned case number 11 WC to the filing and Arbitrator Kathleen Hagan to the matter. Respondent admits the allegations contained in paragraph 23 of the Complaint, but states that failing to list prior applications was unintentional. 24. At no time did Respondent advise De Oca that he was filing the application for adjustment of claim in case number 11 WC or obtain her permission to use a copy of her signature for the application. Respondent admits the allegations contained in paragraph 24 of the 25. Respondent's use of the application for adjustment of claim filed in case number 07 WC as a new applicationin case number 11 WC 09903, as set forth in paragraphs22 and 23, above, was dishonest and false and Respondent knew that it was dishonest and false, in that De Oca did not authorize Respondent to file or use her signature in connection with the application for adjustment ofclaim filed in 2011 andrespondent did notdisclose to the IWCC thedate thatdeoca signed the application or that prior applications had been filed for De Oca in case number 07 WC and case number 10 WC Respondent admits the allegations contained in paragraph 25 of the Respondent further states that at all times his intention was to protect De Oca's interests.

8 26. On April 21, 20011, Small Assemblies, by its attorneys, filed a motion to transfer venue in case number 11 WC 09903, stating that the matter should be assigned to Arbitrator Carlson who had been assigned to the first case involving De Oca's injuries, case number 07 WC Respondent admits the allegations contained in paragraph 26 of the 27. On April 21, 2011, Small Assemblies, by its attorneys, also filed a motion for sanctions and attorney's fees in case number 07 WC and case number 11 WC 09903, stating that the motion to reinstate the 2007 case and the 2011 filing were frivolous. Respondent admits the allegations contained in paragraph 27 of the 28. On May 2, 2011, Arbitrator Carlson denied Respondent's motion to reinstate case number 07 WC 29605, and on May 4, 2011, Respondent filed a petition for review ofthe denial of the motion to reinstate in the case, and on May 10, 2011, an amended petition. Respondent admits the allegations contained in paragraph 28 of the 29. On June 30,2011, Respondent was terminated from his employment at the firm then known as Briskman, Briskman & Greenberg ("BB&G"). Respondent admits the allegations contained in paragraph 29 of the 30. On January 24,2012, the IWCC affirmed and adopted Arbitrator Carlson's decision to deny the motion to reinstate case number 07 WC 29605, andon February 10, 2012, BB&G filed an administrative review action in the Circuit Court ofcook County, Illinois, on De Oca's behalf. Thereafter, theparties resolved DeOca's claims, theadministrative review case was dismissed, and on March 6, 2013, the IWCC approved a settlement. 8

9 Respondent admits the allegations contained in paragraph 29 of the 31. By reason of the conduct outlined above, Respondent has engaged in the following misconduct: a. failure to act with reasonable diligence and promptness in representing a client, Idalia Montes De Oca, including by allowing her workers' compensation case to be dismissed for want of prosecution, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010); b. failure to keep a client reasonably informed about the status of a matter, including by failing to advise Idalia Montes De Oca ofthe dismissals ofher workers' compensation case and that he had filed duplicate applications for adjustment of claims, in violation of Rule 1.4(a)(3) of the Illinois Rules of Professional Conduct (2010); c. knowingly making false statements offact to a tribunal, by conduct including filing duplicate applications for adjustment of claims without advising the Illinois Workers' Compensation Commission that his client had not signed the new applications and that applications had already been filed for the same injuries, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010); d. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including altering a previously filed application for adjustment ofclaim and filing duplicate applications for adjustment of claims without his client's knowledge or authorization and without advising the Illinois Workers' Compensation Commission that his client had not signed the new applications and that applications had already been filed for the same injuries, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010); and e. conduct that is prejudicial to the administration of justice, by conduct including filing duplicate applications for adjustment of claims causing motions to be filed and proceedings to be delayed, in violation ofrule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

10 Respondentadmits the allegationscontained in paragraph 31, subparagraphs (a), (b) and (e) of the Respondent neither admits nor denies the allegations contained in subparagraphs (c) and (d) ofthe Complaint and states that he did not knowingly make any false statements and did not intend to engage in any conduct involving dishonesty, fraud or misrepresentation. Respondent states further that his conduct, if anything, was a misinterpretation of the IWCC rules. When an Application for Adjustment of Claim is dismissed without prejudice, Respondent may file a motion to reinstate within 60 days of receipt of the notice of dismissal, refile the Application if it is within the three year statute of limitations or file an application that has been dismissed after the three year statute oflimitations if petitioner received a benefit within two years of filing. Stating further, De Oca only spoke Spanish and instructed and trusted Respondent to act in her best interests. At no time did Respondent intend to make false statements or misrepresentations. All of Respondent's actions were done to further the interests ofhis client. At least in part, as a result ofrespondent's efforts, De Oca did reach a settlement with Small Assemblies and Respondent did not obtain any economic benefit from De Oca's case. WHEREFORE, Respondent, EDWIN REYES, prays that this complaint be dismissed. Respectfully submitted, EDWIN REYES, Attorney-Respondent By: V David A. Axelrod Counsel for Attorney-Respondent David A. Axelrod David A. Axelrod & Associates, P.C. 20 S. Clark Street, Suite 2200 Chicago, IL (312)