A state appeals court said a Lake County judge erred in overruling an Illinois Department of Financial and Professional Regulation finding that a lawyer was wrong to act as both real estate agent and attorney in a single transaction.
On Jan. 9, 2014, the IDFPR filed a complaint against Peter Curielli, a real estate managing broker and attorney, for violating the Real Estate License Act of 2000 during the February 2013 sale of a property in Chicago. A month later Curielli moved to dismiss the complaint, saying it was too broad and didn’t clearly state a statutory violation.
After a series of motions and hearings, an administrative law judge determined Curielli did act as a broker and attorney in the transaction, then recommended an indefinite broker license suspension and a $9,500 fine. On Nov. 5, 2015, the IDFPR’s real estate wing adopted that suggestion, further recommending the suspension last for at least a year.
Curielli moved for a rehearing the next month, which IDFPR Secretary Bryan Schneider denied. In March 2016, Curielli sought administrative review. On Sept. 14, 2017, Judge Mitchell Hoffman reversed Schneider’s ruling and rescinded the sanctions.
Justice Ann Jorgensen Illinoiscourts.gov
The Illinois Second District Appellate Court ruled on the IDPFR’s appeal of Hoffman’s decision in an order issued Nov 13. Justice Ann Jorgensen wrote the opinion; Justices Mary Schostok and Robert Spence concurred. The order was issued under Supreme Court Rule 23, which limits its use as precedent, except under limited circumstances permitted by the rule.
The panel examined the disagreement over whether the IDFPR supplied factual allegations about Curielli’s conduct and not, as Hoffman reasoned, legal conclusions. Jorgensen’s opinion explained the lesser level of allegations needed in an administrative proceeding compared to a civil court, and further how discovery adequately apprised Curielli of the allegations and didn’t violate his due process rights.
A key piece of evidence was a Feb. 6, 2013, email Curielli sent to the sellers’ attorney that the panel said reflects Curielli acting as an attorney for the buyers in that “he provided services to them that required his legal knowledge.” Specifically, Curielli asserted there aren’t separate rules for short sales, “which only an attorney can state with any authority to another attorney,” Jorgensen wrote.
The panel rejected arguments that Curielli’s father, John Peter Curielli, owner of the family firm, was the lawyer in this transaction and as such directed the communication that came from Peter Curielli. Notably, the selling attorney testified he believed Peter Curielli was doing the legal work for the buyers and appeared to be making decisions.
Jorgensen also explained the IDFPR didn’t abuse discretion by allowing testimony from laypeople since such offerings were limited and “did not veer into the expert’s realm of what constitutes the practice of law.”
The panel also disagreed with Hoffman and Curielli in suggesting the underlying law is ambiguous, that someone might be allowed to act as “an” attorney in such cases but not “the” attorney. Such a reading, Jorgensen wrote, “leads to absurd results that are contrary to protecting the clients’ interests.”
The only aspect where the panel sided with Curielli is in agreeing the indefinite suspension was unwarranted. It upheld the fine, noting it exceeded Curielli’s commission on the deal by $2,100, but said the suspension was unreasonable given Curielli had no prior sanctions and “the nature of his actions — i.e., two emails in only one client transaction, where no fraud was alleged — were not so egregious as to warrant an indefinite suspension.”
The panel affirmed Schneider’s finding, eliminated the suspension and reinstated the fine.