BEFORE THE HEARING BOARD AND ANSWER TO COMPLAINT. Comes Respondent, Kevin S. Besetzny, by George Collins, Adrian Vuckovich and

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1 In the Matter of: BEFORE THE HEARING BOARD OF THE ILLINOIS ATTORNEY REGISTRATION OCT AND DISCIPLINARY COMMISSION FILED. REG &DISC COMM CHICAGO KEVIN S. BESETZNY, Commission No PR Attorney-Respondent, No ANSWER TO COMPLAINT Comes Respondent, Kevin S. Besetzny, by George Collins, Adrian Vuckovich and Kathryne Hayes, his attorneys, and for his answer, denying the allegations of the prefatory statement, Answers the Complaint as follows: COMMISSION RULE 231 STATEMENT Respondent was licensed to practice law in the State of Illinois on November 10, Respondent is admitted to practice law in the Northern District of Illinois, Central District of Illinois, Federal Trial Bar, and Seventh Circuit. Respondent holds no other professional licenses. COUNT I {Alleged Neglect ofcommercial litigation matter -James and Stanish) 1. In September 2008, an attorney retained by David James ("James") filed a civil complaint in the Circuit Court of Cook County against Building Maintenance Systems ("BMS"), a landscape maintenance provider to which James had been under contract to provide trade services. James' complaint alleged that BMS had failed to compensate James for services he had provided. The Clerk of the Circuit Court docketed the matter, and assigned it case number 08 L ANSWER: Admitted that a lawsuit was filed; the allegations of complaint number 08 L speak for themselves. 2. In October 2008, BMS filed a civil complaint in the Circuit Court of Cook County against James, his wife, Pamela S. Stanish ("Stanish"), and companies operated by James and

2 Stanish. BMS's complaint alleged that James and Stanish had defrauded BMS, and had engaged in other conduct harmful to BMS's business, while under contract to provide landscape maintenance services to BMS customers. The suit sought damages, injunctive relief, and the imposition of a constructive trust. The Clerk of the Circuit Court docketed the matter and assigned it case number 08 CH ANSWER: Admitted that a lawsuit was filed; the allegations of complaint number 08 CH speak for themselves. 3. On November 21, 2008, the Hon. William D. Maddux, a Judge ofthe Circuit Court, entered an order consolidating case numbers 08 CH and 08 L under case number 08 CH Respondent further states that he was not counsel for James and Stanish at that time. 4. Between October 2008 and November 2010, the parties in case number 08 CH engaged in discovery. Respondent further states that he was not counsel for James and Stanish during that time. 5. On September 9, 2010, the Hon. Kathleen M. Pantle, a Judge ofthe Circuit Court, entered an order in case number 08 CH requiring James and Stanish to comply with certain BMS discovery requests on or before September 30, Respondent further states that he was not counsel for James and Stanish at that time. 6. On November 18, 2010, BMS filed a motion for sanctions against James and Stanish, alleging that they had failed to comply with BMS's discovery requests, and with the order described in paragraph five, above. ANSWER: Admitted that such a motion was filed. On information and belief, it is denied that such a motion was filed on November 18, Respondent further states that he was not counsel for James and Stanish at that time. 7. On November 18, 2010, Judge Pantle entered an order in case number 08 CH allowing James' and Stanish's attorney to withdraw from the matter.

3 8. In December 2010, Respondent and James agreed that Respondent would represent James and Stanish in case number 08 CH At that time, Respondent and James agreed that Respondent would be paid a legal fee of $340 per hour for his legal services in the matter. 9. On January 14, 2011, Respondent appeared on behalf of James and Stanish in case number 08 CH On that date, in Respondent' s presence, Judge Pantle entered an order in case number 08 CH requiring James and Stanish to amend their prior responses to BMS's discovery requests, and to respond to BMS's motion for sanctions, on or before February 11,2011. ANSWER: Admitted that an order was entered and that the order speaks for itself. 10. At no time after January 14, 2011, did Respondent file amended responses to BMS's discovery in case number 08 CH 37329, or a response to BMS's motion for sanctions, or take action to request additional time to do so. ANSWER: Admit that Respondent did not file amended responses to BMS's discovery in case number 08 CH Respondent further states that based upon information and belief, as provided by Respondent's clients, no additional information could be provided and therefore, discovery could not be truthfully "amended." Respondent admits that he did not file a response to BMS's motion for sanctions or ask for additional time to do so on or before March 14, On March 25, 2011, Judge Pantle entered an order in case number 08 CH granting BMS's motion for sanctions, and directing BMS to file an attorney fee petition. Respondent received a copy ofthe order shortly after it was entered. ANSWER: Admit that an order was entered on March 25, 2011 and that the order speaks for itself. Respondent further states that at the time relevant to this Complaint, Respondent's law office was located at 33 North Dearborn Street, Chicago, Illinois. On March 6, 2011, there was a significant fire at 33 N. Dearborn Street. Following the fire, access to 33 N. Dearborn was restricted. During this time, and for weeks after, Respondent did not receive mail in a timely manner due to the delay caused by the fire and Respondent's inability to access his law office.

4 12. At no time did Respondent request relief, on behalf of James and Stanish, from Judge Pantle's March 25, 2011 sanctions order in case number 08 CH ANSWER: Denied as alleged. Respondent presented oral arguments. 13. At no time did Respondent inform James or Stanish of Judge Pantle's March 25, 2011 sanctions order in case number 08 CH On May 17, 2011, BMS filed a petition in case number 08 CH 37329, pursuant to Judge Pantle's March 25, 2011 order, requesting $4, in attorney fees and costs from James and Stanish. Respondent received a copy ofthe petition shortly after it was filed. ANSWER: Admitted that a petition was filed and that Respondent received eventually received a copy. 15. On May 25, 2011, in Respondent's presence, Judge Pantle entered orders in case number 08 CH requiring James and Stanish to respond to BMS's attorney fee petition on or before June 15, 2011 and to fully comply with KHM's discovery by that date, setting a status date ofjune 20, 2011 and scheduling a hearing on BMS's fee petition for July 21, On July 21, 2011, Respondent did not appear before Judge Pantle for the hearing on BMS's fee petition in case number 08 CH On that date, Judge Pantle entered a default order against James and Stanish on their claims and those of BMS. Judge Pantle also allowed BMS's request for attorney fees, and allowed Respondent until July 6, 2011 to respond to BMS's fee request. Respondent received a copy ofthe order shortly after it was entered. 17. At no time did Respondent file a response, on behalf of James and Stanish, to BMS's fee request in case number 08 CH On September 7, 2011, Judge Pantle entered an order, in Respondent's presence, continuing case number 08 CH to September 13, 2011 for a decision regarding BMS's attorney fee request and requiring Respondent to attend on that date. ANSWER: Admitted that an order was entered. The order speaks for itself. 19. On September 13, 2011, Respondent did not appear before Judge Pantle in case number 08 CH 37329, as directed in the September 7, 2011 order. On that date, Judge Pantle

5 entered an order awarding attorney fees in the amount of $7,544 to BMS, and against James and Stanish. Respondent received a copy ofthe order shortly after it was entered. ANSWER: Admitted that an order was entered and that Respondent received a copy. 20. At no time did Respondent inform James or Stanish of the entry of the orders described in paragraphs 16 through 20, above. 21. On several occasions between May 2011 and November 2012, James sent messages to Respondent requesting information regarding the status of case number 08 CH Respondent received each message shortly after it was sent. At no time after May 2011 did Respondent provide James with information about his legal matter. 22. By reason ofreason ofthe conduct outlined above, Respondent has engaged in the following misconduct: a) failing to act with reasonable diligence and promptness in representing a client, by conduct including not complying with Judge Pantle's orders, and not filing any pleading to assert James' or Stanish's interests in case number 08 CH 37329, in violation of Rule 1.3 ofthe Illinois Rules ofprofessional Conduct (2010); b) failing to keep a client reasonably informed about the status of a matter, by conduct including failing to inform James or Stanish that no pleadings had been filed on their behalf in case number 08 CH 37329, or that rulings and orders adverse to James and Stanish had been made, in violation of Rule 1.4(a)(3) ofthe Illinois Rules of Professional Conduct (2010) c) failing to promptly comply with reasonable requests for information, by conduct including not responding to James' messages requesting information about his legal matter, in violation ofrule 1.4(a)(4) ofthe Illinois Rules ofprofessional Conduct (2010); and d) failure to explain a matter to the client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, by conduct including failing to inform James or Stanish that no pleadings had been filed on their behalfin case number 08 CH 37329, or that rulings and orders adverse to James and Stanish had been

6 made, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct (2010). COUNT II (Alleged Neglect oftrademark litigation matter- Foodworks) 23. On February 15, 2010, Foodworks USA, Inc. ("FUSA") filed a trademark infringement complaint in the United States District Court for the Northern District of Illinois against Foodworks of Arlington Heights, IL, LLC ("FWAH"). The Clerk of the Court docketed the matter and assigned it case number 10 CV On April 19, 2010 FWAH filed an answer and counterclaim in case number 10 CV On June 16, 2010, counsel for FWAH served interrogatories and documents production requests upon counsel for FUSA. ANSWER: Admitted that discovery was propounded. Respondent further states that he had not entered his appearance for Plaintiffat that time. 26. On March 21, 2011, FUSA's counsel filed a motion to withdraw from the litigation. The Hon. Mary M. Rowland, a Magistrate Judge of the District Court, granted the motion. 27. On July 12, 2011 while FUSA remained unrepresented in case number 10 CV 1020, FWAH filed a motion to dismiss the complaint for want of prosecution, and a motion for default judgment. 28. In August 2011, Respondent and Ayad Nahlawi ("Nahlawi"), FUSA's principal agreed that Respondent would represent FUSA in matters relating to case number 10 CV At that time, Respondent and Nahlawi agreed that Respondent would be paid a legal fee of $350 per hour for his legal services relating to Nahlawi's matter. 29. On August 8, 2011, Respondent filed a motion for leave to appear as substitute counsel for FUSA in case number 10 CV On August 9, 2011 Judge Nolan entered an order

7 granting Respondent's motion, and striking FWAH's July 12, 2011 motions. 30. On November 23, 2011, Respondent agreed with counsel for FWAH to a discovery schedule in case number 10 CV 1020, which contemplated all written discovery being completed by February 29, On that date, the parties submitted the agreed discovery schedule to the Court. 31. On January 26, 2012, during a status hearing in case number 10 CV 1020, Respondent stated to Judge Nolan that FUSA's responses to FWAH's discovery would soon be served upon counsel for FWAH. On that date, Judge Nolan entered an order continuing the matter to May 3, 2012, for further discovery status. 32. On January 26, 2012, during a court appearance in case number 10 CV 1020, Judge Nolan advised Respondent that he was authorizing FWAH to file a motion to compel FUSA's compliance, iffusa's responses to FWAH's discovery were not timely submitted. 33. On February 27, 2012 Respondent had submitted no responses to FWAH's June 2010 discovery in case number 10 CV On that date, counsel for FWAH filed a motion to compel FUSA's compliance with discovery. Respondent received a copy of the motion shortly after it was filed. 34. On February 29, 2012, Respondent had submitted no responses to FWAH's June 20, 2010 discovery in case number 10 CV On that date, Respondent filed a motion in case number 10 CV 1020 to extend Judge Nolan's deadline for completion ofdiscovery. 35. On April 3, 2012, Judge Nolan entered an order in case number 10 CV 102 allowing Respondent until April 20, 2012 to respond to FWAH's discovery and its motion to compel. Respondent received a copy of the order shortly after it was entered. 36. On April 24, 2012, Respondent had submitted no responses to FWAH's June 2010 discovery in case number 10 CV On that date Judge Nolan entered another order in case number 10CV 1020, granting Respondent until April 30, 2012 to respond to FWAH's discovery,

8 and stating that, absent exigent circumstances, no further extensions would be granted. 37. On April 30, 2012, at 5:01 pm, Respondent sent two messages to counsel for FWAH, in which Respondent submitted responses to FWAH's interrogatories, and to which Respondent attached 13 pages of documents which were purportedly responsive to FWAH's document request in case number 10 CV On May 11, 2011, Respondent sent counsel for FWAH a computer disk containing additional documents. 38. On May 15, 2012, Judge Nolan reviewed Respondent's April and May 2012 responses to FUSA's discovery case number 10 CV 1020 with Respondent, and with counsel for FWAH. At that time, Judge Nolan concluded that Respondent's responses were deficient. ANSWER: The order entered on May 15, 2012 speaks for itself. Denied that the responses were "deficient." 39. On May 15, 2012, Judge Nolan entered an order in case number 10 CV 1020, in Respondent's presence, authorizing FWAH to file, on or before June 5, 2012, a motion to dismiss FUSA's complaint for failure to prosecute, and directing Respondent to file a response on or before June Judge Nolan stated in her order, "The failure to file a response, or a failure to file it within the deadline, may be deemed consent to the granting ofthe motion. 40. On June 5, 2012, FWAH filed a motion for voluntary dismissal for failure to prosecute, and for sanctions, against FUSA, in case number 10 CV Respondent received the motion shortly after it was filed. 41. At no time did Respondent file a response to FWAH's June 5, 2012 motion. 42. On August 14, 2012, Judge Nolan entered a Memorandum Opinion and Order in case number 10 CV 1020 in which she criticized Respondent's failure to respect the Court's deadlines, found that Respondent had "wasted the Court's time and clogged the Court's calendar," and dismissed FUSA's complaint with prejudice. ANSWER: Denied as alleged in Paragraph 42. Admitted that a Memorandum Opinion and Order was entered; the Memorandum Opinion and Order speaks for itself. 8

9 43. On several occasions between August 2011 and August Nahlawi sent messages to Respondent requesting information about the status of case number 10 CV Respondent received each message shortly after it was sent. At no time between August 2011 and August 2012 did Respondent provide Nahlawi with substantive information about the status ofcase number 10 CV By reason of reason of the conduct outlined above, Respondent has engaged in the following misconduct: a) failing to act with reasonable diligence and promptness i n representing a client, by conduct including not adequately asserting FUSA's or Nahlawi's interests in case number 10 CV 1020, and by taking insufficient action to respond to FWAH's discovery in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010); b) failing to keep a client reasonably informed about the status of a matter, by conduct including failing to inform Nahlawi about the status of case number 10 CV1020, in violation ofrule 1.4(a)(3) ofthe Illinois Rules ofprofessional Conduct (2010); c) failing to) promptly comply with reasonable requests for information, by conduct including not responding to Nahlawi's messages requesting information about his legal matter, in violationof Rule 1.4(a)(4) of the Illinois Rules of Professional Conduct (2010); and d) failure to explain a matter to the client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, by conduct including failing to inform Nahlawi about the status of case number 10 CV 1020, in violation of Rule 1.4(b) ofthe Illinois Rules ofprofessional Conduct (2010).

10 WHEREFORE, Respondent respectfully requests that this cause be considered and that the Hearing Board make a just recommendation. Respectfully Submitted, George B. Collins Adrian Vuckovich av@cb-law.com Kathryne Hayes khayes@cb-law.com COLLINS BARGIONE & VUCKOVICH One North LaSalle Street, Suite 300 Chicago, Illinois (312)