Filed March 26, 2008
In re Scott Robert Erwin,
Commission No. 04 CH 114
Synopsis of Review Board Report and Recommendation
Erwin was charged in a two-count amended complaint with representing a client when the representation might be materially limited by his own interests, failing to withdraw when he knew or reasonably should have known that continued employment would result in a violation of the Rules, engaging in overreaching, breach of fiduciary duty, committing a criminal act, specifically battery, that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer, and engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation, 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. Erwin admitted some of the Administrator's allegations of fact and misconduct, but denied other allegations of fact and misconduct.
The charges arose out of Erwin's representation of a client, Amber Quitno, who was employed as an exotic dancer. The complaint charged, and Erwin admitted, that Erwin agreed to give Quitno credit on bills for his legal services in exchange for her performing striptease dances for him. The complaint also charged that Erwin, while representing Quitno, touched her in a sexual manner without her consent and made false statements to police when questioned about Quitno's allegations. Erwin denied that conduct.
Following a hearing, the Hearing Board concluded that Erwin engaged in the misconduct charged and recommended that Erwin be suspended for fifteen (15) months.
The case was before the Review Board on Erwin's exceptions, challenging some of the Hearing Board's findings of misconduct and its sanction recommendation. The Administrator sought to have the Review Board uphold the Hearing Board's findings of misconduct and sanction recommendation.
The Review Board affirmed the Hearing Board's findings of misconduct. Erwin's challenges to the Hearing Board's findings of misconduct involved issues of credibility, within the province of the Hearing Board. The Review Board recommended a one-year suspension, consistent with the Court's disposition in In re Fishman, No. M.R. 19462 (Sept. 24, 2004).
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
SCOTT ROBERT ERWIN,
Commission No. 04 CH 114
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This case is before the Review Board on exceptions filed by Respondent-Appellant, Scott Robert Erwin. The Hearing Board found that, as charged in the Administrator-Appellee's two-count amended complaint, Erwin represented a client when the representation might be materially limited by his own interests, in violation of Rule 1.7(b) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.7(b)), failed to withdraw when he knew or reasonably should have known that continued employment would result in a violation of the Rules in violation of Rule 1.16(a)(2) (134 Ill. 2d R. 1.16(a)(2)), engaged in overreaching, breached a fiduciary duty, violated Rule 8.4(a)(3) (210 Ill. 2d R. 8.4(a)(3)) by committing a criminal act, specifically battery, that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)), 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 former Supreme Court Rule 771 (134 Ill. 2d R. 771) (renumbered to Supreme Court Rule 770). The Hearing Board recommended that Erwin be suspended for fifteen (15) months.
The charges arose out of Erwin's representation of Amber Quitno. The complaint alleged that, while representing Quitno, Erwin agreed to give Quitno credit on bills for his legal services in exchange for her performance of striptease dances for Erwin. Erwin admitted this conduct. The complaint also alleged that, while representing Quitno, Erwin touched her in a sexual manner without her consent and made false statements to police when questioned about Quitno's allegations. Erwin denied that conduct.
Erwin challenges the Hearing Board's conclusions that he sexually abused Quitno and the resulting findings of misconduct. In particular, he challenges the Hearing Board's findings that he committed a battery. He objects to the Hearing Board's findings of misconduct as to Count II, on the grounds that, since Quitno's testimony was not believable, there was no basis on which to conclude that Erwin had lied to police. Erwin also contends that the Hearing Board's sanction recommendation is excessive. The Administrator seeks to have the Review Board uphold the Hearing Board's findings of misconduct and its sanction recommendation.
At the time of her dealings with Erwin, Quitno was employed as a stripper. She worked at Heartbreakers, a "gentlemen's club," dancing topless or nude.
Erwin and Quitno met in summer 2001, when Erwin was at Heartbreakers as a customer and Quitno performed a dance for him. Thereafter, Quitno retained Erwin to represent her in connection with several legal matters. Erwin also represented Quitno's husband and mother in various matters. One of the cases in which Erwin represented Quinto was a civil lawsuit against a doctor, alleging that he had sexually abused Quitno. In that case, Erwin and Quitno had a contingent fee arrangement. In the other matters, Erwin worked on an hourly basis.
Quitno was having difficulty paying Erwin's bills and spoke with Erwin about this. They agreed that Quitno would dance for Erwin in exchange for credit against her legal
bills. On more than one occasion, Quitno danced for Erwin, in his office and at Heartbreakers. In return, Erwin gave Quitno credit against legal fees due. During these dances, Quitno removed her clothing. Quitno also went to Erwin's office and modeled outfits for him that she had purchased for her work. Erwin admitted this activity and expressed remorse for it.
Quitno testified that, at various times in his office and elsewhere, during the time he was representing her, Erwin touched Quitno's breasts, buttocks, and vagina and penetrated her vagina with his finger. Erwin denied any such touching. The Hearing Board was presented with detailed evidence, fully described in its report, on this issue and on the relative credibility of the witnesses.
While she did not do so at first, ultimately Quitno contacted another attorney. In order to obtain evidence to corroborate her version of the events, Quitno recorded conversations with Erwin.
Quitno also contacted police. In December 2002, Quitno met with DeKalb police detective Robert Redel. Law enforcement officials obtained court approval to eavesdrop on and record conversations between Quitno and Erwin. Tapes and transcripts of these conversations were introduced into evidence. During those conversations, Quitno accused Erwin of touching her inappropriately, on multiple occasions. In portions of the conversations, Erwin did not deny her allegations or tacitly admitted them. There were points at which Erwin denied certain specific allegations by Quitno.
On February 5, 2003, Redel and another detective met with Erwin at his office. In response to police questioning, Erwin repeatedly denied touching Quitno in a sexual way. Erwin also told police that Quitno had never told him that she felt he was touching her improperly. He stated that the conversation with police was the first time that Erwin had heard that Quitno
thought he was touching her improperly, except for a single incident that he stated involved an inadvertent contact. Before the Hearing Board, Erwin testified about the specifics of statements made and not made during the recorded conversations and about his state of mind during the conversations with Quitno and the police. He denied having consciously lied to police.
After the conversation with police, Erwin withdrew from the cases in which he was representing Quitno. Otherwise, there was no evidence that Erwin's representation of Quitno was adversely affected by the activities at issue here. Quitno filed a civil lawsuit against Erwin as a result of his conduct. However, she did not pursue the lawsuit, which was dismissed for want of prosecution. Law enforcement officials sought to indict Erwin for criminal sexual assault. Evidence was presented to a grand jury, which did not return an indictment.
Erwin was married and has two teenaged children. Since being licensed to practice law in Illinois in 1980, Erwin has practiced law in DeKalb County. He has no prior discipline. Three attorneys, including a former DeKalb County State's Attorney, provided favorable character testimony, attesting to Erwin's reputation for truthfulness and his commitment to pro bono legal work. The curriculum director for a day care center, on whose board of directors Erwin had served for years, testified that Erwin was a committed volunteer and had a very positive reputation.
Erwin was very active in providing pro bono legal services, encouraging other attorneys to do so, and supporting the local federally funded legal aid agency. Erwin was also involved in additional community service and volunteer work.
As noted above, Erwin challenges the Hearing Board's findings of misconduct, insofar as those findings are based on improper touching of Quitno. Erwin acknowledges that he agreed to give Quitno credit against her legal bill in exchange for her performance of striptease
dances for him. Therefore, there is no challenge to the findings of misconduct that are based on that conduct.
The Administrator has the burden of proving the misconduct charged by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999). However, factual findings of the Hearing Board are reviewed deferentially. The Hearing Board's factual findings generally are not reversed unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). 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 standard of review, the Hearing Board's factual findings cannot be reversed simply because an opposite conclusion could have been reached or is reasonable. Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397. Deference to the Hearing Board is particularly warranted where its findings concern issues based on credibility determinations. See In re Smith, 168 Ill. 2d 269, 283, 659 N.E.2d 896, 213 Ill. Dec. 550 (1995); In re Witt, 145 Ill. 2d 380, 390, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991). This is because, unlike a reviewing tribunal, the Hearing Board has the advantage of being able to observe the witnesses and their demeanor and, thereby, assess credibility. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993); Witt, 145 Ill. 2d at 390, 583 N.E.2d 526, 164 Ill. Dec. 610.
The Hearing Board found that Erwin did engage in improper touching of Quitno. The Hearing Board expressly stated that it based this conclusion on Quitno's testimony, Erwin's statements during the taped conversations, and the hearing panel's observations of Erwin as he testified. Thus, the Hearing Board's findings were clearly based on its assessment of the relative credibility of Erwin and Quitno.
Erwin advances reasons why a different conclusion might have been possible and why Erwin's testimony should have been given greater credence than Quitno's. Such arguments, however, do not demonstrate that the Hearing Board's findings are against the manifest weight of the evidence. See Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397. The fact that evidence can be interpreted in varying ways does not mean that the interpretation reached by the trier of fact is against the manifest weight of the evidence. In re Alpert, No. 96 CH 570 (Review Board Feb. 19, 1999), approved and confirmed, No. M.R. 15847 (May 25, 1999).
The Hearing Board report thoroughly discusses the evidence presented and the reasons for its credibility determination. The Hearing Board also discussed, at length, the recorded conversations and articulated its reasons for concluding that the recorded conversations supported Quitno's version of the facts.1 The Hearing Board's conclusions are not against the manifest weight of the evidence and its findings of misconduct are affirmed.2
The remaining issue concerns the sanction.
The Hearing Board's recommendation as to discipline is advisory. Ingersoll, 186 Ill. 2d at 178, 710 N.E.2d 390, 237 Ill. Dec. 760. 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; Timpone, 157 Ill. 2d at 197, 623 N.E.2d 300, 191 Ill. Dec. 55. 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. The deterrent value of a sanction may be considered in determining discipline. In re Discipio, 163 Ill. 2d 515, 528, 645 N.E.2d 906, 206 Ill. Dec. 654 (1994). Aggravating and mitigating factors are also considered. Witt, 145 Ill. 2d at 398, 583 N.E.2d 526, 164 Ill. Dec. 610. Mitigating factors can include a lack of prior discipline, favorable character evidence, see In re Twohey, 191 Ill. 2d 75, 90, 727 N.E.2d 1028, 245 Ill. Dec. 294 (2000), and evidence of pro bono work and community service. See In re Gorecki, 208 Ill. 2d 350, 368-69, 802 N.E.2d 1194, 280 Ill. Dec. 673 (2003). Aggravating factors can include a respondent's failure to recognize his or her misconduct or express remorse. See In re Samuels, 126 Ill. 2d 509, 535 N.E.2d 808, 129 Ill. Dec. 43 (1989). However, a respondent's continued assertion of innocence, or denial of the version of the facts accepted by the Hearing Board, should not be considered aggravating, in and of itself. In re Bartley, No. 96 SH 879 (Review Board June 30, 1998), approved and confirmed, No. M.R. 15176 (Sept. 28, 1998); In re Grosky, No. 96 CH 624 (Review Board May 13, 1998), approved and confirmed, No. M.R. 15176 (Sept. 28, 1998).
The proven misconduct clearly warrants a significant suspension. Erwin agreed to give a current client credit against her legal bills in exchange for performing striptease dances for him. This conduct, which Erwin admits, is reprehensible in and of itself. In addition, Erwin repeatedly touched Quitno in a sexual manner without her consent, while he was representing her. Such conduct warrants significant discipline. See In re Fishman, No. M.R. 19462 (Sept. 24, 2004); In re Morris, No. 02 CH 48 (Hearing Board Dec. 27, 2005), approved and confirmed, No. M.R. 20753 (March 21, 2006); In re Landry, No. 95 CH 446 (Review Board July 3, 1997), approved and confirmed, No. M.R. 14025 (Nov. 25, 1997); In re Horne, No. 93 CH 568 (Review Board Aug. 9, 1996), approved and confirmed, No. M.R. 12936 (May 30, 1997).
After analyzing the facts and the authorities cited by the parties and the Hearing Board, we conclude that a suspension for one year, as was imposed in Fishman, is the proper quantum of discipline in this case. We do not find sufficient distinctions between this case and Fishman to warrant a different sanction here, either harsher or less severe, than that imposed in Fishman.
In Fishman, the respondent was a senior partner in a law firm. Over a period of several months, Fishman made multiple unwelcome sexual advances toward a female associate of his firm. Fishman's conduct included touching the woman's breasts, placing his hand inside her clothing, and penetrating her vagina with his finger. See In re Fishman, No. 01 CH 109 (Review Board March 31, 2004), petition for leave to file exceptions allowed, sanction modified, No. M.R. 19462 (Sept. 24, 2004). Fishman's conduct, therefore, was very similar to Erwin's.
There are distinctions between this case and Fishman. However, given the significant similarity in the conduct involved in the two cases, those distinctions do not warrant different discipline.
For example, unlike this case, Fishman did not involve giving credit against legal fees in exchange for striptease dancing. However, that additional conduct does not warrant harsher discipline here than that imposed in Fishman. See e.g., In re Morris, No. 02 CH 48 (Hearing Board Dec. 27, 2005), approved and confirmed, No. M.R. 20753 (March 21, 2006). In performing dances for Erwin, Quitno was doing the same thing that she did routinely in her chosen occupation. If anything, unlike the complaining witness in Fishman, Quitno placed herself in the situation of dancing for Erwin.
Quitno was a client, while the victim in Fishman was an employee, an associate of Fishman's law firm. However, this distinction also does not warrant harsher discipline than that
imposed in Fishman. See e.g. Morris, No. 02 CH 48; In re Landry, No. 95 CH 446 (Review Board July 3, 1997), approved and confirmed, No. M.R. 14025 (Nov. 25, 1997). Like Erwin's, Fishman's misconduct was also directed against a person to whom he owed a high duty of care and responsibility.
The Hearing Board recommended a longer suspension than that imposed on Fishman partly because it viewed Erwin's statements to police and his testimony before the Hearing Board as lies and, consequently, his statements to police as additional misconduct. Like Erwin, however, Fishman also denied the conduct at issue. Other respondents whose misconduct was similar to Erwin's also engaged in additional misconduct without receiving suspensions in excess of one year. See e.g., Morris, No. 02 CH 48; Landry, No. 95 CH 446.
A respondent typically should not be disciplined, or sanctioned more severely, because he or she has denied allegations of misconduct. In re Bartley, No. 96 SH 879 (Review Board June 30, 1998), approved and confirmed, No. M.R. 15176 (Sept. 28, 1998); In re Grosky, No. 96 CH 624 (Review Board May 13, 1998), approved and confirmed, No. M.R. 15176 (Sept. 28, 1998). This principle is based on a concern that a respondent's right to defend him or her self might be chilled if additional charges of misconduct could be found, or the sanction increased, simply because the Hearing Board rejected the respondent's version of the facts. In re Schaaf, No. 99 SH 64 (Review Board Dec. 28, 2000), petition for leave to file exceptions denied, No. M.R. 17387 (March 23, 2001). Instead, a respondent's statements denying misconduct should lead to increased discipline only if there is direct and indisputable evidence to show that specific statements were knowingly false. Schaaf, opinion p. 6.
In Grosky, the respondent gave a sworn statement to the Administrator. Believing that Grosky had lied during that statement, the Administrator charged him in a separate count of
the complaint with having made false statements to the ARDC in connection with its investigation. The Review Board criticized that procedure, observing that, by adding an additional count, the Administrator was essentially duplicating the charges against the respondent. Grosky, opinion p. 10. The Review Board stated that the fact that the trier of fact resolves the factual issues against a respondent who has chosen to defend him or her self, does not, in and of itself, imply that the respondent has made willful false statements. Grosky, opinion p. 10. The Review Board also commented that, in a case in which there were two differing versions of the facts, it was questionable to charge a respondent with having made false statements based on the respondent's articulation of his or her version of the facts, particularly where there was no evidence to clearly indicate that the respondent believed that his or her version was false. Grosky, opinion p. 11.
We recognize, though, that the conduct charged in Count II was not limited solely to Erwin's denials to police of Quitno's claims that he had touched her inappropriately. Count II also alleged, and the Hearing Board found, that Erwin lied because of his statements denying that Quitno had previously confronted him with allegations of improper touching. Based on the recorded conversations, it is obvious that Quitno had previously accused Erwin of sexually touching her. Thus, Erwin's statements went beyond simple exculpatory denials of misconduct. A respondent's false statements can be used against him or her if there is evidence to show that the respondent clearly knew that the statements were false. Schaaf, opinion p. 6; see In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997). Therefore, we recognize that, while the conduct at issue in Count II is analogous to that in Grosky, there are some differences, which would permit a finding of additional misconduct. That conduct, however, does not merit significant weight in aggravation. See Grosky, opinion pp. 9, 11-12.
In addition, the Hearing Board wished to deter similar misconduct in the future. We agree with this concern and with the Hearing Board's observation that, in the ten years since the Court's opinion in In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997), the bar should have received the clear message that sexual conduct with clients is improper. A one-year suspension, however, is very significant discipline and addresses the deterrence goal adequately, particularly under the circumstances of this case.
Cases in which discipline harsher than one year is imposed typically involve more egregious circumstances than those present here. For example, in Horne, the respondent was suspended for eighteen months. Horne began a personal, sexual relationship with a client, Lori Smutney, while he was representing her on a child support matter. Horne collected the child support payments on Smutney's behalf and forwarded them to her, after deducting a small amount for "processing costs." Horne significantly increased the amount deducted after he ended his personal relationship with Smutney. The personal relationship ended after Smutney became pregnant with a child she claimed was Horne's. After the child was born, Horne filed a complaint seeking a determination of paternity. The complaint included negative, confidential information Horne had learned during his representation of Smutney.
Erwin seeks a suspension of nine months, like that imposed in Morris and Landry. Under all the circumstances, this case does not warrant a shorter suspension than that imposed in Fishman. Given the Court's opinion in Rinella, Erwin clearly was on notice that his conduct with Quitno was highly improper. This justifies imposing more severe discipline in this case than in earlier, pre-Rinella cases, such as In re Landry, No. 95 CH 446 (Review Board July 3, 1997), approved and confirmed, No. M.R. 14025 (Nov. 25, 1997). Morris is distinguishable because, even though Erwin presented significant mitigating evidence, Morris was a decorated
war veteran with a particularly impressive record of military service, a factor not present in this case. In addition, we are mindful of the Court's considered disposition in Fishman, which unlike its action in Morris,3 expressly rejected the Review Board's recommendation of a lesser sanction. Accordingly, the Court's ruling in Fishman further persuades us that a one-year suspension is warranted here. For these reasons, we affirm the Hearing Board's findings of misconduct. We recommend that Respondent-Appellant, Scott Robert Erwin, be suspended for one year.
Date Entered: 26 March 2008
Leonard F. Amari4
1 Erwin contends that the Hearing Board looked only at the transcripts of the recorded conversations and did not listen to the recordings. This is completely speculative, particularly as the recordings were in evidence.
2 Erwin does not contend that the findings of misconduct on Count II contravene the principle that a respondent should not be disciplined based solely on having denied allegations of misconduct. See In re Bartley, No. 96 SH 879 (Review Board June 30, 1998), approved and confirmed, No. M.R. 15176 (Sept. 28, 1998); In re Grosky, No. 96 CH 624 (Review Board May 13, 1998), approved and confirmed, No. M.R. 15176 (Sept. 28, 1998). In order to safeguard the respondent's right to present a defense, we reaffirm the principle that additional misconduct should not be found, nor the sanction increased, merely because the Hearing Board has rejected the respondent's version of the facts. See In re Schaaf, No. 99 SH 64 (Review Board Dec. 28, 2000), petition for leave to file exceptions denied, No. M.R. 17387 (March 23, 2001); Grosky, No. 96 CH 624.
3 In Morris, the Hearing Board's determination was accepted by the parties, with the Supreme Court simply approving a motion to confirm that Board's recommendation. There was no appeal to the Review Board.
4 Mr. Amari participated in the deliberation and decision in this case before the expiration of his term as a member of the Review Board.