Filed November 7, 2007
In re Roger L. Brown,
Commission No. 04 CH 73
Synopsis of Review Board Report and Recommendation
The Administrator filed a two-count complaint against Respondent-Appellant, Roger L. Brown. In both counts, the complaint charged Brown with failing to provide competent representation, failing to act with reasonable diligence and promptness in representing a client, conversion, and engaging in conduct that is prejudicial to the administration of justice and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. Count II also alleged that Brown failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information and engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation. Brown's answer denied misconduct and some of the factual allegations of the complaint. Later, however, the parties stipulated to the essential facts and charges of misconduct as to Count II.
The Hearing Board found that Brown engaged in all of the misconduct charged as to Count II. As to Count I, the Hearing Board found that the Administrator proved that Brown failed to act with reasonable diligence and promptness in representing his client, but that the Administrator had not proved the remaining misconduct charged in Count I. The Hearing Board recommended that Brown be suspended for six months.
The case was before the Review Board on the Brown's exceptions, objecting to the Hearing Board's findings of misconduct as to Count I and its sanction recommendation. The Administrator contended that the Hearing Board erred in failing to find that Brown engaged in all of the misconduct charged in Count I. Otherwise, the Administrator sought to have the Review Board uphold the Hearing Board's findings of misconduct and its recommendation as to discipline.
The Review Board upheld the Hearing Board's findings as to the misconduct charged, with one exception. The Review Board determined that, because Brown's failure to act with reasonable diligence and promptness in representing his client affected the court proceedings in the client's case, under the circumstances of this case, the Hearing Board erred in failing to find that, as to Count I, Brown also engaged in conduct that is prejudicial to the administration of justice and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The Review Board concurred in the Hearing Board's recommendation that Brown be suspended for six months.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ROGER L. BROWN,
Commission No. 04 CH 73
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellee filed a two-count complaint against Respondent-Appellant, Roger L. Brown. Both counts alleged that Brown failed to provide competent representation in violation of Rule 1.1(a) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.1(a)), failed to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3 (134 Ill. 2d R. 1.3), and engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)) and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770)). Count II additionally charged that Brown failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information in violation of Rule 1.4(a) (134 Ill. 2d R. 1.4(a)) and engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)). Brown denied misconduct and some of the facts of the complaint. The parties later filed a stipulation in which Brown admitted the essential facts and misconduct charged in Count II.
The Hearing Board found, as to Count I, that Brown violated Rule 1.3, but that the Administrator had not proven the remaining misconduct charged. As to Count II, the
Hearing Board found that Brown engaged in all the misconduct charged. The Hearing Board recommended that Brown be suspended for six months.
The case is before the Review Board on Brown's exceptions. He challenges the Hearing Board's finding of misconduct as to Count I and its sanction recommendation. The Administrator argues that the Hearing Board correctly found that Brown violated Rule 1.3 as to Count I, but erred in failing to find the other misconduct charged in Count I. The Administrator seeks to have the Review Board affirm the Hearing Board's sanction recommendation.
Brown is a sole practitioner, with a neighborhood office in Calumet City. He was licensed to practice law in 1985. Brown considered himself an experienced criminal defense attorney. He testified that he has handled prior jury trials and prior serious criminal cases.
In June 2000, Brown agreed to represent Albert Welton, who was charged with aggravated criminal sexual assault. Given his record, if convicted, Welton faced a mandatory sentence of natural life imprisonment. At the hearing, Brown testified that he knew Welton faced life imprisonment. In his sworn statement to the Administrator, Brown stated that he thought Welton faced a sentence of six to thirty years imprisonment.
Bail was denied, and Welton was in custody from his arrest, on June 13, 2000, until December 2003. Welton's first trial, in which Brown represented him, occurred in May 2002. As indicated below, the trial court granted Welton's motion for new trial. Welton was retried in November 2003. Welton remained in custody throughout this period until, after he was acquitted in the second trial, Welton was released in December 2003.
The complaining witness, Patricia Washington, was visiting Welton in his apartment at the time of the incident. In the context of Welton's case, proof of aggravated
criminal sexual assault required proof of sexual penetration, by the use or threat of force and without Washington's consent, and that Welton caused bodily harm to Washington. The defense theory was that no bodily harm had been inflicted and that the sexual activity was consensual, as Washington was a prostitute and at Welton's apartment for purposes of prostitution.
The case was tried to a jury on May 21 and 22, 2002. The jury found Welton guilty of criminal sexual assault. This was a less serious charge that did not require proof of bodily harm, but the conviction still carried a mandatory prison sentence of natural life.
After his conviction, but before sentencing, Welton alleged that Brown had not provided him with the effective assistance of counsel. The Public Defender was appointed to represent Welton.
Assistant Public Defenders Anthony Thomas and Kenneth Fletcher filed a motion for new trial for Welton. Such motions are routinely filed following a criminal conviction. Because issues not raised in post-trial motions are generally waived for appeal, motions for new trial typically raise numerous issues and include various "boiler plate" allegations. The Welton motion for new trial included some such allegations, plus allegations of ineffective assistance of counsel by Brown. The allegations of ineffective assistance of counsel were not standard and itemized several specific grounds. This was the point argued orally when the motion was presented.
The trial judge, Judge Simmons, granted the motion for new trial. Motions for new trial are rarely granted. While Judge Simmons did not specify why he did so, Thomas and Fletcher believed the motion was granted because of ineffective assistance of counsel.
Thomas and Fletcher represented Welton at the second trial, a bench trial before Judge Simmons. Welton was acquitted and later released.
Welton did not testify at the disciplinary hearing. The Administrator presented testimony from Brown, Thomas, Fletcher, and Richard Kling, as an expert witness in rebuttal. The Administrator's exhibits included the common law record and transcripts from the criminal case. Brown testified in his own defense. Attorney Mark Kusatzky testified as an expert for Brown. The Hearing Board considered all the expert witnesses equally credible.
The pre-trial discovery that Brown received from the State in Welton's case included copies of the police reports. Brown testified that he reviewed these reports and went over them multiple times with Welton in preparation for trial.
According to the police reports, Washington told police that she made several telephone calls from Welton's apartment, including a call to her husband. Brown did not subpoena Welton's telephone records. He testified that he did not do so because he did not feel it was necessary to corroborate something that Washington had already admitted, i.e. having made phone calls from the apartment. Brown testified that, according to both Welton and the police reports, Washington made calls only when she entered the apartment and not after any sexual activity began.
Thomas and Fletcher subpoenaed Welton's telephone records before the second trial. They suspected that the phone records would be important before they obtained them. Thomas testified that he subpoenaed the telephone records essentially to corroborate Welton's position that, as evidenced by her use of the phone, Washington was free to go at any time. Fletcher testified that Welton told them that, while she was in his apartment, Washington made one or two calls to her relatives and that, during the time Washington claimed the incident occurred, there was a long phone call. As this would be inconsistent with Washington's claims that Welton was alternating between beating her and committing sexual acts, Fletcher saw the
phone records as a tool to attack Washington's credibility. Fletcher considered Brown's failure to subpoena the phone records a serious failure and evidence of insufficient preparation.
Kusatzky testified that it was not always important to obtain telephone records. In his opinion, the reasons given in the motion for new trial did not indicate that it was important to do so in this case. Kling testified that, based on the police reports alone, he would have obtained telephone records. Doing so would have only required a subpoena.
Police reports revealed various inconsistencies between Washington's trial testimony and her prior statements to police, as well as inconsistencies between the trial testimony and prior statements to police of another prosecution witness, Betty Tolston. Tolston testified that Washington reported the rape to her on the night in question. Given the defense theory that the sexual activity was consensual, credibility was crucial to the case.
Brown attempted to impeach Washington and Tolston based on prior inconsistent statements. Brown was not able to properly do so, even though the trial judge explained to Brown in a sidebar conference how to handle impeachment with prior inconsistent statements. Thereafter, Brown appeared to give up in his cross-examination. Brown testified that, when he was unsuccessful in his attempts to impeach, he opted to move on, as he thought he was losing the jury.
In the opinion of Fletcher and Thomas, Brown's inability to impeach was the most serious deficiency in his representation of Welton. Kusatzky regarded impeachment as a matter of trial strategy. He did not consider the failure to perfect an impeachment as demonstrating that Brown was ineffective. Kling testified that the fact that Brown did not impeach or know how to impeach indicated ineffectiveness and a lack of knowledge, rather than trial strategy.
The post-trial motion asserted that Brown was ineffective because he failed to investigate the drug habits of Washington or Tolston, thus impairing Welton's ability to challenge their credibility. Thomas testified that such information would have also furthered Brown's theory that the sexual activity was consensual, as suggesting that Washington was at Welton's apartment to trade sex for drugs.
Washington and Tolston had met at a methadone clinic. Brown knew that Washington was a recovering drug addict; the fact that she had been in a methadone clinic was referenced in the police reports. On direct examination, Washington testified that she was on probation for selling narcotics and that she was a former heroin addict. Brown did not raise any issues as to Washington's drug background. While he cross-examined Tolston about having met Washington in a methadone clinic, he accepted Tolston's testimony that she had recovered and did not otherwise attempt to attack Tolston's credibility based on her drug addiction. Brown also did not investigate further, subpoena the records of the methadone clinic, or independently check Washington's or Tolston's backgrounds.
Thomas and Fletcher subpoenaed the records of the methadone clinic where Washington and Tolston met. Fletcher considered the clinic records important in cross-examining Washington and Tolston. Kling testified that the records from the methadone clinic should have been obtained, even though the issue of drug use was addressed.
Brown testified that he tried to impeach about those areas that he considered important and that his decisions were based on trial strategy. Kusatzky agreed that whether to impeach and the extent of impeachment were matters of strategy and that an attorney might opt to avoid certain areas at trial, particularly if he or she felt those areas were sufficiently covered.
Police reports also revealed that Washington stated that, after the alleged rape, she cooked food at Welton's apartment. Brown testified that, during trial, Welton told him that he did not have a stove.1 Brown testified that this was the first time that he was made aware that there were any issues regarding the stove or that Washington might be lying about having cooked at Welton's home. Brown testified that, prior to trial, he did not think there were any issues that warranted investigation of the scene. Brown did not attempt to impeach Washington on the issue of the stove. Brown testified that he did not do so because he viewed Washington's testimony, that she cooked a meal for a man who had allegedly just raped her, as favorable to Welton. Brown also testified that, upon learning of the issue during trial, he did not know how to effectively impeach Washington on this point without having Welton testify that he did not have a stove.
Brown did not go to Welton's apartment prior to trial to view the scene of the alleged crime. This failure was noted in the post-trial motion and in the Administrator's complaint. However, none of the Administrator's witnesses considered the failure to go to the scene to investigate a critical failure in the context of this case. Kusatzky testified similarly.
Thomas and Fletcher believed that Brown had provided Welton with ineffective assistance of counsel. Kusatzky and Kling each reviewed the record in Welton's criminal case. While Kusatzky would have handled the matter differently, he testified that Brown was not ineffective. Kling considered Brown ineffective, based on his performance as a whole.
The Administrator's witnesses acknowledged that, as to some areas in which they considered Brown's performance deficient, they had the benefit of hindsight. In addition, Thomas and Fletcher knew of some, though certainly not all, the areas as to which they attempted to impeach Washington because of reviewing the transcripts of the first trial. Other
areas of potential impeachment were apparent from other sources and would have been available to Brown.
Brown testified that he tried to do his best for his clients, regardless of what he was paid. Brown received $1,500 for representing Welton. The normal fee in a case such as this one would be at least $10,000. Brown acknowledged that he may have made some mistakes in Welton's case, but stated that he did not think any lawyer trying a case would be mistake-free. Brown testified that, in retrospect, he would have handled the matter differently. In particular, he testified that, if he had the opportunity to take such a case now, he would not try it alone, but would obtain co-counsel, because doing so could only help the client. In response to questions from counsel for the Administrator, Brown testified that he considered every case, including this one, to be a learning experience.
In the disciplinary case, evidence was presented that Welton wrote Brown 20 - 30 letters from jail. Brown testified that he read most of these letters and that most involved Welton's own legal research. Brown's file contained four unopened letters from Welton. Brown had not read those letters and did not know what was in them. All of the letters were postmarked prior to trial. The words "Very important" were written on the outside of one envelope. Another envelope was marked "Urgent."
In August 2000, Brown agreed to represent Emanuel Paramore, on a contingent fee basis, in a property damage claim. Brown filed a lawsuit, seeking judgment for $8,062.00.
Brown did not appear at a scheduled court date on January 22, 2001. At that time, the judge closed discovery and assigned the case to mandatory arbitration. The arbitration date
was set for May 30, 2001. Paramore notified Brown of this date. Brown told Paramore that they would meet that morning, before the hearing, to discuss the case and prepare for the hearing.
When the case was called on May 30, 2001, Brown was not present. He had not previously prepared Paramore for the arbitration. Because the arbitrators instructed Paramore to proceed or his case would be dismissed, Paramore gave an opening statement. Brown arrived shortly thereafter and represented Paramore for the rest of the hearing.
The arbitrators entered an award for Paramore of $600. A notice and copy of the award were sent to Brown on or about June 1, 2001 and delivered to him shortly thereafter. The case was set for further proceedings on July 11, 2001.
Between May 30, 2001 and July 23, 2001, Paramore called Brown numerous times, inquiring about the outcome of the arbitration. When they spoke, Brown told Paramore that he was still waiting for the award. Brown never told Paramore that he had received the award or that the case was set for hearing on July 11, 2001. Brown also did not advise Paramore of his right to reject the award, advise Paramore of the deadline within which to do so, or file a rejection of the award.
On July 11, 2001, neither Brown nor Paramore appeared in court. Consequently, the case was dismissed for want of prosecution.
On July 23, 2001, Paramore contacted the court and learned that the case had been dismissed. He filed a successful pro se motion to vacate the dismissal. The $600 award was reinstated.
The parties challenge the Hearing Board's findings of misconduct as to Count I. Neither party objects to the Hearing Board's findings of misconduct as to Count II. Those findings are affirmed.
The Administrator must prove the misconduct charged by clear and convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). However, factual findings by the Hearing Board are reviewed deferentially and not reversed unless they are against the manifest weight of the evidence. Winthrop, 219 Ill. 2d at 542, 848 N.E.2d 961, 302 Ill. Dec. 397. A factual finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill. 2d at 542, 848 N.E.2d 961, 302 Ill. Dec. 397. Under this deferential standard of review, the Review Board should not overturn the factual findings of the Hearing Board merely because it disagrees with the Hearing Board's factual conclusions or because it might have reached a different conclusion if it had been the fact finder. Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397.
The reviewing tribunal is responsible for correcting errors in the application of the facts to the law, Winthrop, 219 Ill. 2d at 543, 848 N.E.2d 961, 302 Ill. Dec. 397, and for determining whether or not a particular set of facts constitutes the misconduct charged. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E. 2d 906, 206 Ill. Dec. 654 (1994); In re Owens, 144 Ill. 2d 372, 377, 581 N.E.2d 633, 163 Ill. Dec. 479 (1991). Such issues are issues of law, In re Ushijima, 119 Ill. 2d 51, 57, 518 N.E.2d 79, 115 Ill. Dec. 548 (1987), to which a de novo standard of review applies. In re Brodsky, No. 01 CH 42 (Review Board Aug. 21, 2003), approved and confirmed, No. M.R. 19007 (Jan. 20, 2004); see Discipio, 163 Ill. 2d at 527, 645 N.E.2d 906, 206 Ill. Dec. 654; see Owens, 144 Ill. 2d at 377, 581 N.E.2d 633, 163 Ill. Dec. 479.2
The Administrator contends that the Hearing Board erred in failing to find that Brown failed to provide Welton with competent representation. Given all the circumstances and the applicable standard of review, we affirm the Hearing Board's finding that the Administrator did not prove, by clear and convincing evidence, that Brown violated Rule 1.1(a).
Incompetence and neglect are not identical, and a finding that an attorney engaged in neglect does not require a finding that he or she was also incompetent. In re Slaughter, No. 97 CH 82 (Review Board Nov. 9, 1999), approved and confirmed, No. M.R. 16460 (March 22, 2000). Not every attorney error constitutes incompetence. In re Mason, 122 Ill. 2d 163, 169-70, 522 N.E.2d 1233, 119 Ill. Dec 374 (1988). Conduct, even if legal malpractice, is not always a disciplinary violation. Mason, 122 Ill. 2d at 169-70, 522 N.E.2d 1233, 119 Ill. Dec 374. Similarly, a finding that a defendant has not received the effective assistance of counsel does not automatically translate into an ethical violation. In re Washington, No. 99 CH 58 (Hearing Board Dec. 31, 2003), affirmed in part, sanction modified, No. 99 CH 58 (Review Board Oct. 27, 2004), approved and confirmed, No. M.R. 19844 (Mar. 18, 2005); In re Algee, No. 96 SH 90 (Hearing Board June 30, 1997); In re Gursel, No. 93 CH 539 (Hearing Board Feb. 7, 1995). Instead, the respondent's performance as a whole must be considered. See Mason, 122 Ill. 2d 163, 522 N.E.2d 1233, 119 Ill. Dec 374.
Here, there were a number of errors and certain specific points as to which Brown's performance was properly criticized. However, given his performance as a whole, the Hearing Board's finding that the Administrator did not prove incompetence is not against the manifest weight of the evidence.
Brown articulated a cogent theory of defense, in opening statement and closing argument. He cross-examined prosecution witnesses in a manner consistent with that theory.
For example, Brown cross-examined Washington as to her heroin addiction and how she supported her habit. Brown also cross-examined Washington about the fact that she was free to use the telephone and called her husband from Welton's apartment, as well as the fact that she was free to leave, going to the store and returning to Welton's apartment. Brown obtained admissions that Welton did not have a weapon and, initially, did not threaten Washington.
Brown successfully defended against the State's pre-trial motion to present evidence of other similar acts by Welton. The Administrator's expert witness testified that Brown did a good job on this portion of the case. Brown appeared multiple times in court prior to trial. Brown also convinced the jury that Welton had not caused bodily harm to Washington, an essential element of the most serious offense with which Welton was charged. As a result, Welton was convicted of a less serious offense, albeit one which carried an equally serious sentence.
The Administrator's witnesses, Thomas, Fletcher, and Kling, all admittedly had the benefit of hindsight. Some of the information of which they were aware, and from which they assessed Brown's performance, was available based on a review of the transcript from the first trial. In addition, Thomas and Fletcher had an advantage that Brown lacked, specifically, the advantage of dealing with the case after it had already been tried once. This fact alone gave them a means of considering the State's evidence that was not available to Brown, and a way of assessing, and preparing for, the insufficiencies in the State's case.
This is not a case in which the respondent did virtually nothing for his client. Compare In re Grigsby, No. 00 SH 58 (Hearing Board Feb. 15, 2002), affirmed in part, sanction modified, No. 00 SH 58 (Review Board Feb. 3, 2003), petition for leave to file exceptions allowed, No. M.R. 18695 (May 22, 2003). Brown had a logical and reasonable, even if
unsuccessful, strategy for defending Welton, which is a highly significant factor in assessing issues of competence. See Gursel, No. 93 CH 539 (Hearing Board report p. 12). The Hearing Board was also free to consider the record as a whole and evaluate the evidence, such as the record in Welton's case, for itself. See Washington, No. 99 CH 58 (Hearing Board report pp. 27-28). Wide latitude is given in matters of trial strategy, and after the fact scrutiny of counsel's performance must be highly deferential, Gursel, No. 93 CH 539 (Hearing Board opinion p. 13), quoting Strickland v. Washington, 466 U.S. 668, 689-90 (1984).
These circumstances support the Hearing Board's finding that the Administrator did not prove, by clear and convincing evidence, that Brown failed to provide Welton with competent representation.
Brown objects to the Hearing Board's findings that, as to Count I, he failed to act with reasonable diligence and promptness in representing a client. Brown contends that his failure to open four, of the many, letters sent to him by Welton does not demonstrate that he failed to act with reasonable diligence and promptness in violation of Rule 1.3.
All of the letters at issue were postmarked prior to trial. Two of the unopened letters bore writing on the outside that indicated that the sender considered them important. The Hearing Board, as trier of fact, could consider these circumstances as indicating that Brown failed to act with reasonable diligence and promptness in representing Welton.
In addition, while we do not view Brown's failure to investigate as rising to the level of incompetence, so as to warrant reversing the Hearing Board's finding that the Administrator did not prove a violation of Rule 1.1, the evidence demonstrated various deficiencies in Brown's investigation of the case. This is particularly true with regard to areas of possible impeachment of prosecution witnesses, in a case in which the State's case depended on
the credibility of its witnesses. Therefore, the evidence overall supports the Hearing Board's finding that Brown violated Rule 1.3, and we affirm that finding by the Hearing Board.
Brown's failure to act with reasonable diligence and promptness affected the court proceedings in Welton's case, requiring a new trial. The new trial occurred a year and a half after the first trial. Welton, who was acquitted after the second trial, was incarcerated during the intervening time period. Therefore, in the context of this case and given the finding that Brown violated Rule 1.3, the Hearing Board erred in failing to find that Brown also violated Rule 8.4(a)(5) and Supreme Court Rule 770 as to Count I.
The remaining issues concern the sanction. Brown seeks a lesser sanction, such as censure. The Administrator seeks to have the Review Board uphold the sanction recommended by the Hearing Board.
The Hearing Board's recommendation as to discipline is advisory. In re Ingersoll, 186 Ill. 2d 163, 178, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999). In fashioning the proper sanction in any given case, the Review Board must consider each case, based on its own particular facts and circumstances, while remaining aware that the system seeks to impose sanctions consistent with those imposed in other similar cases. Ingersoll, 186 Ill. 2d at 177-78, 710 N.E.2d 390, 237 Ill. Dec. 760; In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). In imposing discipline, the purpose is not to punish the individual respondent, but to protect the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Spak, 188 Ill. 2d 53, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999); Timpone, 157 Ill. 2d at 197, 623 N.E.2d 300, 191 Ill. Dec. 55. Aggravating and mitigating factors are to be considered. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991).
We concur in the Hearing Board's recommendation of a six-month suspension. That sanction is supported by the proven misconduct and the aggravating and mitigating factors present, and is within the range of precedent.
In this case, Brown was found to have failed to act with reasonable diligence and promptness as to two clients' cases. One of these was a criminal matter, in which it appears that the client's rights were adversely affected by Brown's misconduct. In the other case, Brown also made representations to his client about the status of the matter. Suspensions have been imposed in cases involving similar misconduct. See In re Ring, 141 Ill. 2d 128, 565 N.E.2d 983, 152 Ill. Dec. 301 (1990); In re Samuels, 126 Ill. 2d 509, 535 N.E.2d 808, 129 Ill. Dec. 43 (1989); see also Washington, No. M.R. 19844. While respondents in some similar cases have received lesser sanctions, those cases have typically involved greater mitigating evidence and/or misconduct as to only a single case. E.g., In re Slaughter, No. 97 CH 82 (Review Board Nov. 9, 1999), approved and confirmed, No. M.R. 16460 (March 22, 2000); In re Grigsby, No. M.R. 18695 (May 22, 2003).
Brown presented limited mitigating evidence. His misconduct in this case is aggravated by the fact that he has been disciplined previously for similar misconduct. In re Brown, No. 01 CH 62, No. M.R. 18116 (May 24, 2002) (suspension for sixty days and until he completed the Illinois Professional Responsibility Institute). In that matter, Brown placed a Yellow Pages advertisement that falsely stated that he practiced medical malpractice and had over ten years of litigation and trial experience. Brown had never handled a medical malpractice case or litigated in that area of the law. In reliance on the ad, a client hired Brown to represent her in a medical malpractice claim. Brown did not obtain an opinion from a medical
professional as to the viability of the claim. He never settled the claim, filed a complaint, or told the client that he would not pursue her claim. The complaint became time-barred.
The fact that a respondent has been disciplined previously, particularly for similar misconduct, typically is a serious aggravating factor. Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961, 302 Ill. Dec. 397; In re Storment, 203 Ill. 2d 378, 786 N.E.2d 963, 272 Ill. Dec. 129 (2002). Given the timing of the misconduct at issue in this case and the timing of the prior discipline, Brown may not technically be a recidivist and his prior discipline may have less significance in aggravation. See In re Teichner, 104 Ill. 2d 150, 166-68, 470 N.E.2d 972, 83 Ill. Dec. 552 (1984). However, at a minimum, Brown still should have had a heightened awareness of his ethical obligations due to his prior discipline. At the time of his misconduct as to Paramore, the other disciplinary complaint against Brown had been filed and was pending. Brown's misconduct in Welton was occurring simultaneously with the disciplinary proceedings in the prior case; Brown concluded the Welton trial just days before the Court entered its order suspending Brown, based on the petition for discipline on consent. Given these circumstances, the prior discipline can be considered in aggravation. See Teichner, 104 Ill. 2d at 166, 470 N.E.2d 972, 83 Ill. Dec. 552.
For these reasons, we affirm the Hearing Board's findings as to the misconduct charged, except that, as to Count I, we find that Brown violated Rule 8.4(a)(5) and Supreme Court Rule 770. We recommend that Respondent-Appellant, Roger L. Brown, be suspended for six months.
Date Entered: 7 November 2007
Bruce J. Meachum
1The record contains varying information, i.e. Welton had no stove, Welton had no gas, Welton had no stove but had a hot plate.
2The Administrator argues that, to the extent that the issues involve application of undisputed facts to the law, the applicable standard of review is a clearly erroneous standard. This standard of review is not generally applicable in disciplinary cases. See e.g., In re Feeley, No. 03 CH 78 (Review Board), petition for leave to file exceptions allowed, discipline modified, No. M.R. 20740 (March 21, 2006). However, there is authority for the use of a clearly erroneous standard in considering issues of competent representation. In re Slaughter, No. 97 CH 82 (Review Board Nov. 9, 1999), approved and confirmed, No. M.R. 16460 (March 22, 2000). Our conclusion on the issue of a Rule 1.1(a) violation would be the same under either a clearly erroneous or a de novo standard of review.