BEFORE THE HEARING BOARD

OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION
In the Matter of:
DONALD FREDRICK FRANZ,
Attorney-Respondent,

Commission No. 2014PR00161

No. 6216090.

FIRST AMENDED COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Scott
Renfroe, pursuant to Supreme Court Rule 753(b), complains of Respondent Donald Fredrick Franz
("Respondent"), who was licensed to practice law in Illinois on November 4, 1993, and alleges that Respondent
has engaged in the following conduct which subjects him to discipline pursuant to Supreme Court Rule 770:
COUNT I
(Improper business transaction with Rex Nzeribe)
1. On or about September 15, 2010, Sarah Nzeribe ("Sarah") filed a petition for dissolution of her marriage to Rex
Nzeribe ("Nzeribe"), in the Circuit Court of McHenry County, Illinois, entitled In re: The Marriage of Sarah
Nzeribe, Petitioner, and Rex Nzeribe, Respondent. The case was docketed as matter number 10 DV 993.
2. In or about March 2011, Respondent and Nzeribe agreed that Respondent would represent Nzeribe in
connection with the dissolution of marriage matter. There was no written retainer agreement between Respondent
and Nzeribe. Nzeribe paid Respondent when Respondent asked for legal fees or submitted billing statements to
Nzeribe.
3. Between March 2011 and May 2012, Respondent continued to represent Nzeribe in matters relating to his
dissolution of marriage. Nzeribe paid Respondent about $4,450 in legal fees and/or costs during that time period.
4. On or shortly before May 10, 2012, Nzeribe determined that he could no longer have a working relationship
with Respondent, and advised Respondent that he wished to terminate Respondent's representation.
5. On or about May 10, 2012, Respondent served Nzeribe with a notice of motion stating that on May 16, 2012,
Respondent would appear before the court and "then and there move for immediate leave to withdraw as counsel
for [Nzeribe]." Nzeribe received the notice of motion on or about May 12, 2012. The motion was set to be heard
on May 16, 2012, a date on which several other motions were also set to be heard by the court in case number 10
DV 993, including a motion to compel Nzeribe's deposition.
6. On May 16, 2012, Respondent and Nzeribe appeared in court for the hearing on Sarah's motion to compel
Nzeribe's deposition and Respondent's motion to withdraw. The purported bases for Respondent's motion were
that Respondent was not receiving the necessary cooperation from Nzeribe, that differences had arisen between
Respondent and Nzeribe, and that Nzeribe had failed to pay Respondent's fees and expenses. While Nzeribe
disagreed with Respondent's claim that Nzeribe had not cooperated with Respondent or paid Respondent's
attorney's fees and expenses, Nzeribe did not object to the motion because he no longer wanted Respondent to
represent him in the dissolution of marriage case.

7. On May 16, 2012, the court denied Respondent's motion to withdraw because the case had already been set for
trial commencing on May 21, 2012. The court further ordered Nzeribe to appear at the law offices of Sarah's
counsel for his deposition on that same day at 1:30 p.m.
8. After the court denied Respondent's motion for leave to withdraw as Nzeribe's counsel and ordered Nzeribe to
appear at the law offices of Sarah's counsel for his deposition on that same day, Respondent asked Nzeribe to pay
him $10,000 in additional legal fees. Nzeribe refused. Respondent advised Nzeribe that he would not represent
him at the deposition later that day unless he signed a Promissory Note requiring Nzeribe to pay Respondent
$10,000 in installments over the next four years. Nzeribe agreed to sign a Promissory Note, because he believed
that he had no alternative, if he wanted representation at the deposition and at the trial, which was set to begin on
May 21, 2012.
9. Sometime after the May 16, 2012 court appearance and before May 23, 2012, Respondent prepared a
Promissory Note ("the Note"). The Note purported to require that Nzeribe, the purported borrower, pay
Respondent, the purported lender, the sum of $10,000, together with interest thereon at the rate of four percent per
annum. Pursuant to the terms of the Note, Nzeribe was to pay Respondent $250 per month starting on July 15,
2012. At the time Respondent prepared the Note, Nzeribe did not owe $10,000 to Respondent.
10. On May 21, 2012, the date the trial in case number 10DV993 was set to begin, Nzeribe was present in court,
but Respondent did not to appear and the court continued the trial to May 22, 2012.
11. The trial in case number 10DV993 began on May 22, 2012, and concluded on May 24, 2012, after three
afternoon sessions.
12. On or about May 23, 2012, at court, and prior to the commencement of the trial proceedings that day,
Respondent presented Nzeribe with the Note and asked him to sign it. Respondent told Nzeribe that if he did not
sign the Note, Respondent would not continue to represent him. Nzeribe believed that he had no alternative but to
sign the Note if he wanted representation at the trial, so he signed the Note.
13. At no time before Nzeribe signed the Promissory Note did Respondent disclose to Nzeribe the risks associated
with Respondent's dual role as both legal advisor and participant in the transaction, or obtain Nzeribe's informed
consent to that transaction.
14. When asking Nzeribe to sign the Note, Respondent did not advise Nzeribe that he was entitled to seek
independent counsel or give Nzeribe a reasonable opportunity to do so. Further, Respondent did not advise
Nzeribe that, as his attorney, he was prohibited from entering into a business transaction with Nzeribe, since
Respondent's interests might be conflicting with Nzeribe's, unless Nzeribe was made aware in writing of the
transaction and its terms, and expressly consented in writing after disclosure, with the consent to recite the
essential terms of the transaction and Respondent's role.
15. By reason of the conduct described above, Respondent engaged in the following misconduct:
a. representing a client when the representation of that client may be materially limited
by his own interests, by having Nzeribe sign a Promissory Note wherein Nzeribe was the
borrower and Respondent was the lender, while representing Nzeribe in a matter, in
violation of Rule 1.7(a)(2) of the Illinois Rules of Professional Conduct (2010); and
b. entering into a business transaction with a client (the Promissory Note), without
explaining in writing to the client the possible conflicting interests and that the client was
entitled to seek the advice of independent counsel, and without obtaining the written
consent of the client, in violation of Rule 1.8(a) of the Illinois Rules of Professional
Conduct (2010).
COUNT II

(Failure to reduce contingent agreement to writing, abusive behavior)

16. In October 2014, Respondent and Mike Rutkowski ("Rutkowski") agreed that Respondent would represent
Rutkowski in matters relating to Rutkowski's efforts to reduce the assessed value of real property he had recently
purchased. Respondent had never represented Rutkowski in any previous matter.
17. Respondent and Rutkowski agreed that Respondent's receipt of a fee would be contingent on obtaining a
reduction of the property's assessed valuation, and that the fee would be one-third of one year's tax savings.
Respondent never reduced that contingent fee agreement to writing. After his meeting with Rutkowski,
Respondent sought a reduction of Rutkowski's property tax obligation with both the McHenry County assessor's
office and the local Board of Review.
18. On March 5, 2015, Respondent notified Rutkowski that the McHenry County Board of Review had reversed
the county assessor's decision not to modify the assessed value of Rutkowski's property, and that the Board of
Review had decided to reduce the assessed value of that property from $71,739 to $70,000. Respondent also sent
Rutkowski a bill for $400 in fees for handling the matter, which Rutkowski received shortly thereafter. That bill
did not explain the method, if any, by which Respondent had calculated his claimed fee of $400.
19. As of March 13, 2015, Respondent considered his representation of Rutkowski to have concluded, and for the
balance of the events set forth in this count of the complaint, Respondent considered himself to be acting pro se in
efforts to resolve a perceived fee dispute with Rutkowski. Rutkowski, though, reasonably considered Respondent
to be his attorney, in that matters relating to the representation, including the extent of his admitted obligation to
pay Respondent a fee, had yet to be resolved.
20. On March 13, 2015, Rutkowski contacted Respondent to ask him to explain the basis for Respondent's
claimed $400 fee, which Rutkowski considered to be inconsistent with the contingent fee he believed he had
agreed to pay. Over the next several days, Respondent sent Rutkowski a series of e-mail and text messages that:
stated that Respondent had unilaterally raised the claimed fee, first to $500 and then to $600; threatened to sue
Rutkowski to collect the claimed fee; insulted Rutkowsky's manhood and choice of automobiles; and referred to
Rutkowski as a "small penis asshole." [sic]
21. Respondent's e-mail and text messages to Rutkowski never explained the basis for Respondent's claimed fee,
or the method of its calculation, other than to say that fee agreements were not required "in these matters and not
between men. My mistake, there is only one man involved between us. I challenge you to a duel, you pick the
time, place and manner."
22. Respondent's messages to Rutkowski, which he sent while he considered himself to be proceeding pro se in a
fee dispute with Rutkowski, had no substantial purpose other than to embarrass or burden Rutkowski.
23. By reason of the conduct described above, Respondent has engaged in the following misconduct:
a. failed to promptly comply with Rutkowski's reasonable requests for information,
on and after March 13, 2015, concerning the basis for Respondent's fee demands of
$400, $500 and then $600, by sending belittling, threatening or malicious texts and
e-mails rather than factual responses to those inquiries, in violation of Rule 1.4(c)
of the Illinois Rules of Professional Conduct;
b. failed to reduce his oral agreement to represent Rutkowski on a contingent fee
basis to writing, in violation of Rule 1.5(c) of the Illinois Rules of Professional
Conduct; and
c. used means that had no substantial purpose other than to embarrass, delay or
burden Rutkowski, by sending a series of belittling, threatening or malicious texts
and e-mails, in violation of Rule 4.4(a) of the Illinois Rules of Professional
Conduct.

WHEREFORE, the Administrator respectfully requests that this matter be assigned to a panel of the Hearing
Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a
recommendation for such discipline as is warranted.
Respectfully submitted,
Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission
By: Scott Renfroe
Scott Renfroe
Counsel for Administrator
One Prudential Plaza
130 East Randolph Drive, #1500
Chicago, Illinois 60601
Telephone: (312) 565-2600
Facsimile: (312) 565-2320