BEFORE THE HEARING BOARD OF THE ILLINOIS ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION ANSWER TO COMPLAINT

Transcription

1 BEFORE THE HEARING BOARD OF THE ILLINOIS ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION In the Matter of: MARK E. BROADDUS, Commission No. 2016PR00090 Attorney-Respondent, No ANSWER TO COMPLAINT Now comes Respondent, MARK E. BROADDUS, by his attorney, SAMUEL J. MANELLA, and in response to the Administrator's Complaint, states as follows: {Creation offalse Document) 1. In September 2015, Respondent spoke by telephone with prospective client Don Kim ("Kim"), who told Respondent that Kim required assistance in changing the title and collecting the proceeds of a PNC Bank account that was then held in the name of a trust that had been created for the benefit of Kim's deceased grandmother. More specifically, Kim told Respondent that the PNC Bank account was titled "Sonia Aiok Lee Declaration of Trust dated November 14, 1994" ("Lee's 1994 Trust"), and that one week prior to her November 10, 2014 death, Ms. Lee had created a new trust ("Lee's 2014 Trust") with the intention of transferring all assets belonging to Lee's 1994 Trust to Lee's 2014 Trust. Kim also told Respondent that he had previously used an October 31, 2014 power of attorney for property to transfer some assets, not including the PNC Bank account, from Lee's 1994 Trust to Lee's 2014 Trust. Ell C ^ " 1 Eaisi FVmh h^ 1 SEP ATTY REG & DISC COMM CHICAGO

2 Respondent admits the allegations contained in Paragraph 1 of the Complaint. 2. During their September 2015 telephone conversation, Kim also told Respondent that prior to his grandmother's death, Kim had submitted an account transfer directive to representatives of PNC Bank requesting that they transfer ownership of the account from Lee's 1994 Trust to Lee's 2014 Trust, but that the bank officials had declined to make that transfer. Respondent and Kim discussed various options designed to cause PNC officials to transfer ownership of the account, including filing a declaratory complaint against the bank alleging that the 2014 power of attorney had given Kim the authority to change the title of the PNC Bank account, and that the bank had erred in refusing to change the account's title. At the conclusion of their conversation, Kim determined not to hire Respondent to pursue litigation against PNC Bank at that time. Respondent admits the allegations contained in Paragraph 2 ofthe Complaint. 3. In February 2016, Kim contacted Respondent and told him that his circumstances had changed and that he was then willing to pursue litigation against PNC Bank relating to the account, which was still held in the name of Lee's 1994 Trust. Respondent and Kim agreed at that time that Respondent would represent Kim in matters relating to the account. Respondent requested, and Kim later paid, a $2,000

3 security retainer against the fees and costs that were likely to arise in connection with the representation. Respondent admits the allegations contained in Paragraph 3 of the Complaint. 4. On or about March 2, 2016, Respondent determined to create a document for Kim to sign, as Lee's agent for property under the 2014 power of attorney, that purported to amend the terms of Lee's 1994 Trust to provide that upon Lee's death, the residue of Lee's 1994 Trust "shall be paid pursuant to the provisions of the Sonia Aiok Lee 2014 Trust dated November 3, 2014." Respondent then ed the document to Kim and instructed him to sign it, to date it as if it had been executed prior to Lee's death, and to take the document to PNC Bank and request that the bank retitle the account from Lee's 1994 Trust to her 2014 Trust. Following Respondent's instructions. Kim later signed the document and dated it November 4, Respondent admits the allegations contained in Paragraph 4, except that Respondent denies that he "instructed" Kim and further answering, Respondent states that he advised Kim that this was an option to avoid costly and protracted litigation, in that if the Bank agreed to release the account, the matter would be resolved and no further action would be required.

4 5. The purported amendment of Lee's 1994 Trust was false, because it had been backdated, and was not valid because any authority Kim would have had under the power of attorney, including any ability to amend the terms of Lee's 1994 Trust, would have expired when Lee died. Respondent admits that the document was invalid as alleged in Paragraph 5 of the Complaint, and further answering, states that the document was prepared with the intent to allow Kim to collect the account pursuant to the authority he had prior to the decedent's death, in furtherance of Lee's specified intent that her assets be distributed pursuant to the 2014 Trust. 6. At the time Respondent drafted the purported amendment and sent it to Kim, he knew that the document would be backdated and that it was not genuine, in that it did not correctly describe the actual circumstances of its execution or of Kim's purported authority to amend Lee's 1994 Trust. Respondent admits that the document was invalid as alleged in Paragraph 6 of the Complaint, and further answering, states that the document was prepared with the intent to allow Kim to collect the account pursuant to the authority he had prior to the decedent's death.

5 7. Within days of the document's creation, Kim took it to PNC Bank and asked an agent of the bank, based on the document, to retitle the account from Lee's 1994 Trust to Lee's 2014 Trust. The bank's agent declined to do so. Respondent admits the allegations contained in Paragraph 7 of the Complaint. 8. Shortly after he learned from Kim that PNC Bank had declined to retitle the account from Lee's 1994 Trust to her 2014 Trust, Respondent conferred with an associate at his law firm about drafting a declaratory complaint against PNC Bank. In the course of their discussion, Respondent directed the associate's attention to the purported amendment to Lee's 1994 Trust, without explaining the true circumstances of the document's creation and execution, in effect representing to the associate that the document was genuine and could be relied upon in drafting the declaratory judgment complaint. Respondent admits the allegations contained in the first sentence of Paragraph 8 of the Complaint, and denies the allegations contained in the second sentence of Paragraph 8 of the Complaint and further answering, states that he has no recollection of discussing the creation or incorporation of the document in question with his associate. Respondent tendered the file to his associate and instructed her to prepare a draft complaint for declaratory relief based on the client's authority to have collected the account under the 2014 power of attorney. 5

6 9. Respondent's statement directing the associate's attention to the document purporting to amend the terms of Lee's 1994 Trust was misleading, in that the statement implied that the document was genuine and that it accurately reflected Kim's authority to take action affecting Lee's 1994 Trust. Respondent denies the allegations contained in Paragraph 9 of the Complaint, and further answering, states that he has no recollection of discussing the creation or incorporation of the document in question with his associate. Respondent tendered the file to his associate and instructed her to prepare a draft complaint for declaratory relief based on the client's authority to have collected the account under the 2014 power of attorney. Respondent further states that it was never his intention to incorporate or use the document in the declaratory complaint. Respondent had specifically advised the client the document would not be used. 10. At the time of Respondent's conversation with the associate, he knew that the purported amendment to Lee's 1994 Trust was not genuine. The associate later reviewed the law firm's word-processing system, determined that the purported document had not been created during Lee's lifetime (and was therefore not genuine), and reported her conversation with Respondent to the firm's management.

7 Respondent admits that he knew the purported amendment was not valid. Respondent admits the balance of Paragraph 10 of the Complaint, and further answering, states that he has no recollection of discussing the creation or incorporation of the document in question with his associate. Respondent tendered the file to his associate and instructed her to prepare a draft complaint for declaratory relief based on the client's authority to have collected the account under the 2014 power of attorney. Respondent further states that it was never his intention to incorporate or use the document in the declaratory complaint. Respondent had specifically advised the client the document would not be used. 11. By reason of the conduct described above, Respondent has engaged in the following misconduct: a. conduct involving dishonesty, fraud, deceit or misrepresentation, by creating a document that he knew would be falsely dated in an attempt to cause PNC Bank to take action based on false information, and in referring to that false document in his conversation with another attorney in connection with the planned drafting of a planned declaratory judgment complaint, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

8 Respondent admits conduct involving misrepresentation, but denies the balance of Paragraph 11 (a) of the Complaint. Respectfully submitted, SAMUEL J. MANELLA, ATTORNEY FOR RESPONDENT SAMUEL J. MANELLA # ATTORNEY FOR RESPONDENT 77 WEST WASHINGTON STREET SUITE 705 CHICAGO, ILLINOIS (708)