Filed February 22, 2008

In re Kenneth R. Keeton
Respondent-Appellant

Commission No. 04 SH 117

Synopsis of Review Board Report and Recommendation
(February 2008)

The Administrator-Appellee filed a two-count amended complaint against Respondent-Appellant Kenneth R. Keeton, charging him with misconduct related to two incidents that occurred in his personal life. Both counts alleged that he committed a criminal act, namely battery in Count I and assault, domestic battery, intimidation or criminal damage to property in Count II, which reflected adversely on his honesty, trustworthiness or fitness as a lawyer, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, and that he engaged in conduct that tended to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770. Respondent admitted some of the factual allegations of the complaint and denied some of them. He denied all of the allegations of misconduct.

The Hearing Board found that both charges of misconduct in the first count and a violation of Supreme Court Rule 770 in the second count had been proved by clear and convincing evidence. It recommended that Respondent be suspended from the practice of law for six months. Based on evidence that Respondent suffered from Bipolar Affective Disorder, type II, the Hearing Board further recommended that his suspension continue until further order of court.

The case was before the Review Board on the exceptions of the Respondent, who objected only to the Hearing Board's recommended sanction and asked the Review Board to recommend a period of probation instead. The Administrator urged the Review Board to uphold the Hearing Board's recommendation.

As Respondent's misconduct was completely unrelated to the practice of law, the Review Board was unwilling to recommend the sanction suggested by the Administrator. After consideration of all the evidence before it, the Review Board recommended that Respondent be suspended from the practice of law for a period of two years, with the suspension stayed in its entirety by a five-year period of probation, subject to certain conditions.

BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

KENNETH R. KEETON,

Respondent-Appellant,

No. 6237421.

Commission No. 04 SH 117

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

The Administrator-Appellee filed a two-count complaint against Respondent-Appellant Kenneth R. Keeton, charging him with misconduct related to two incidents that occurred in his personal life. Both counts alleged that he committed a criminal act, namely battery in Count I and assault, domestic battery, intimidation or criminal damage to property in Count II, which reflected adversely on his honesty, trustworthiness or fitness as a lawyer, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct and engaged in conduct that tended to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770. Respondent admitted some of the factual allegations of the complaint and denied some of them. He denied all of the allegations of misconduct.

The Hearing Board found that both charges of misconduct in the first count and a violation of Supreme Court Rule 770 in the second count had been proved by clear and convincing evidence. It recommended that Respondent be suspended from the practice of law for six months. Based on expert testimony indicating that Respondent suffered from Bipolar Affective Disorder, type II, the Hearing Board further recommended that his suspension continue until further order of court.

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The case is now before the Review Board on Respondent's exceptions. He objects to the sanction recommended by the Hearing Board, and asks that we recommend a period of probation instead. The Administrator urges us to affirm the recommendation of the Hearing Board.

The facts are briefly summarized below.

Count I

On February 1, 2003, Respondent was at the Eagles Club in Chester, Illinois watching the Super Bowl. His ex-wife's brother-in-law, Tom Maue, was also there. Respondent's fifteen-year-old son had lived with him for the past year and a half and Respondent had recently obtained an order for custody and for child support from his ex-wife, who had informed him that her whole family was angry at Respondent and their son because of it.

Shortly after midnight, as he was leaving the bar, Respondent attempted to discuss this with Maue. After a short conversation, the two men became involved in a physical altercation. It ended and began again about fifty feet down the street when Respondent persisted in attempting to discuss the child support matter. When an onlooker said that the police were being called, both men stopped fighting and went home.

Four days later, Respondent was charged by information with felony aggravated battery. People v. Kenneth R. Keeton, Circuit Court for Randolph County case number 2004-CF-20. According to the information, Respondent had bitten Maue's nose and hit him in the face with his fist. According to Respondent, Maue had started the fight and had headbutted him. Respondent felt that he had been defending himself. He filed a complaint against Maue, but the Randolph County State's Attorney declined to prosecute.

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On July 20, 2004, the State's Attorney amended the information filed against Respondent, reducing the charge to misdemeanor battery. The amended information alleged that he "intentionally caused bodily harm to Tom Maue, in that said defendant hit Tom Maue with his fist and bit him on the nose." Respondent entered an "Alford plea," which, while not admitting guilt, acknowledged that if the case were tried and the prosecution's witnesses were believed, there would be enough evidence to find him guilty of the charge. The court entered a finding of guilty and ordered him to pay a fine and court costs totaling $500.

Respondent admitted that he had been drinking prior to the incident with Maue, and expressed remorse.

Count II

Respondent dated Sheri Cox for three years following his divorce from his first wife, and they became involved again after the end of his second marriage. He had stopped practicing law and in January 2003, became an adjunct professor at Southwestern Illinois College, teaching in the paralegal program. The evaluations by his students were positive.

In or about March 2004 Respondent and Cox were living together, but discussing ending their relationship. The two of them had a serious argument, which Respondent characterized as the kind that happens near the end of a relationship.

According to Respondent, Cox had been staying with her mother for a few days after that, and he had not seen her. One Sunday, while Respondent was watching a football game with friends, Cox returned home with some of her relatives and/or the police and announced that they were there to move her things out of the house. Although he realized at the time of the hearing that this was a mistake, Respondent felt that Cox should have given him prior notice. He refused to allow her to remove her belongings.

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On March 8, 2004, Cox obtained an emergency order of protection against Respondent. After a hearing on March 17, 2004, a two-year order of protection was entered.

Cox made several allegations regarding Respondent's conduct in her petition for the order of protection. She described events leading up to her decision to move out of the house, which including heavy drinking by Respondent. He had frightened and threatened her. However, although she was subpoenaed by the Administrator, Cox declined to testify at the hearing. No criminal charges were ever filed, and Respondent denied committing any of the criminal acts alleged in the complaint. He and Cox had no further contact after the entry of the order of protection.

Respondent's Mental State

A great deal of evidence was introduced concerning Respondent's mental state. While the details are not necessary to this report, Respondent's early years involved quite a lot of trauma and chaos. One of the psychiatrists who evaluated him found it remarkable that he was able to overcome his background to attend law school when he was in his thirties.

Respondent first sought counseling after the death of his mother in January 1995. He immediately went into private practice upon his admission to the bar in 1996. He did well, but became overconfident and expanded his office to the point that he could not afford it. He began feeling stressed and in late 1998, consulted two psychiatrists who diagnosed him as suffering from depression and prescribed an anti-depressant. His depression continued, however.

Respondent stopped taking cases in 2000. He was depressed and eventually started feeling suicidal, although he never actually attempted suicide. His second wife wanted to end their marriage around this time. Respondent sought psychiatric help from Dr. Michal Artal, who put him on a mood stabilizer and anti-depressants, and also hospitalized him for three or

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four days during a period of intense depression. Respondent stopped seeing Dr. Artal in May 2001. It appears that cost was an issue.

Psychiatrist Lawrence Jeckel interviewed Respondent in August 2001, at the Administrator's request that he evaluate Respondent's fitness to practice law after complaints were filed by two of his clients. The complaints did not result in charges of misconduct. In Dr. Jeckel's opinion, Respondent suffered from Bipolar Affective Disorder, type II. He found Respondent fit to practice law, but felt that he should be monitored by Dr. Artal and a supervising attorney.

Dr. Jean Benacker, Ph.D., a licensed clinical psychologist, interviewed Respondent and administered two psychological tests on or about August 3, 2001. According to her interpretation of the tests, they "put into question Mr. Keeton's diagnosis of Bipolar Disorder, Type II."

Respondent saw a psychiatrist again for eight months in early 2003. He stopped seeing him in early 2004, apparently at or near the time that the misconduct that is the subject of this complaint occurred. Respondent took medication for part of that time.

In August 2005, Dr. Jeckel evaluated Respondent again at the Administrator's request. His report found that Respondent's mental state at that point was good, oriented and intact, although he doubted that Respondent would be able to maintain that state. He still suffered from Bipolar Affective Disorder and other problems, which in Dr. Jeckel's opinion, had become more severe. He found Respondent unfit to practice law at that time. In order to practice again, Dr. Jeckel concluded that Respondent needed to undertake "a profound re-examination of his life," which needed to include psychotherapy, psychiatric help and medication.

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At Respondent's request, Dr. Artal also interviewed him again in August 2006 for purposes of the disciplinary proceedings. She agreed that Respondent suffered from Bipolar Affective Disorder, type II, which she characterized as a less severe form of manic-depression, involving episodes of severe or major depression alternating with "hypomania," or over-activity, and sometimes alternating with "normal" mental states, which are considered remission. At the time that she interviewed Respondent, she found him in remission. According to Dr. Artal, Bipolar Affective Disorder, type II, "is a condition that is not uncommon and [can] be effectively treated and managed and allow the individual to function successfully. Without the appropriate treatment though it is usually a recipe for failure."

Dr. Artal was unwilling to say for sure that the two incidents described in the complaint resulted from Respondent's bipolarity, as she was not treating him at the time. Drinking might have been the cause. However, Dr. Artal cautioned that this was not an illness that would go away. It was not possible to say whether Respondent would have another episode, but there were things that could be done to try to avoid them, such as psychotherapy, psychiatric treatment and medication.

It was Dr. Artal's opinion that Respondent should be allowed to practice law, "with the clear stipulation that he engages and continues to be fully engaged in a long-term psychotherapy and also in an on-going medical management by a psychiatrist."

Respondent also provided his evaluation of his life as of the time of the hearing. Following the two events that are the subject of these proceedings, Respondent visited a cousin in Florida and reconnected with a friend he had known for thirty years. They began living together in January 2005, and he described their relationship as a very good one.

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In the spring of 2005, it appeared that Respondent had undertaken a profound re-examination of his life. He decided that he needed to change his lifestyle. He attended five sessions related to anger management. He joined the "Y" and began running and exercising. He began taking nutritional supplements and eating well. His friend was a gourmet cook, and Respondent became one. When he saw Dr. Jeckel in August 2005, he was still drinking two or three drinks once or twice a week. By the time he saw Dr. Artal in June 2006, he was drinking only occasionally. At the time of the hearing, Respondent had stopped drinking and had lost 110 pounds. He was working very hard at being physically fit.

While still not practicing law, Respondent was employed selling legal research services to lawyers. He hoped to practice in the future but with a firm, where he could learn skills, rather than in private practice. He acknowledged that starting out in private practice had been a mistake. He testified that he maintained a close relationship with his first wife and his son.

Respondent apologized for what had happened, but was proud of the changes he had made to his life since the time that they occurred. Respondent admitted that there was nothing he could say that would prove he was not merely in a manic phase of his illness. He could not say for sure that he would not someday fall apart, any more than Dr. Jeckel could say for sure that he would.

Respondent was in the process of finding a doctor in Florida. He had recently learned that his insurance would cover the cost. He preferred not to be on medication, but was willing to be if the doctor determined that it was necessary. He was amenable to therapy as well. Respondent was not opposed to anything that would help him have a better life.

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Analysis

Respondent makes no objection to the Hearing Board's factual findings or findings of misconduct. They are supported by the evidence, and they are affirmed. He objects only to the sanction recommended by the Hearing Board, a suspension of six months and until further order of court, and asks that the Review Board recommend probation instead. The Administrator argues that the recommendation of the Hearing Board should be affirmed.

The Hearing Board's recommendation as to discipline is advisory only. In re Hopper, 85 Ill.2d 318, 325, 423 N.E.2d 900, 53 Ill. Dec. 231 (1981). In making our own recommendation, we consider the case based on its own particular facts and circumstances, yet we must keep in mind that the purpose of discipline is not to punish the individual respondent, but to protect the public, to maintain the integrity of the profession and to protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). Below are some the factors that we have considered in reaching a recommendation that we believe will meet that purpose:

It is clear that Respondent has a problem with alcohol. According to the evidence, Respondent and Maue each drank twelve to fifteen beers before the fight that led to the criminal charges in Count I. Respondent's drinking became a greater problem while he lived with Cox, as they both drank heavily. According to Dr. Artal's report, Respondent drank ten to twenty beers at a time. The behavior that resulted in Cox's order of protection involved heavy drinking. It is safe to conclude that but for Respondent's use of alcohol, the misconduct in this case would not have occurred. For the past few years, it appears that Respondent has gained control over his problem with alcohol. The evidence shows additional problems that need to be addressed.

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An important factor in our recommendation is that Respondent's misconduct did not result in harm to any client. The Administrator cites In re Clark, 97 CH 111 (Review Board, July 30, 2001), Administrator's petition for leave to file exceptions allowed, No. M.R. 17713 (November 29, 2001), as an indication that "the imposition of a suspension until further order of court is not limited to instances where an attorney's misconduct has had an impact on clients or the attorney's practice of law." However, Clark suffered from paraphilia, a sexual behavior disorder that led him to tie up women. The three victims, according to the complaint, were a legal secretary and two women interviewing for jobs as attorneys with his firm. The Review Board considered the fact that his misconduct "occurred in an employment setting, against job applicants and support staff in his firm" as an aggravating factor. It is true that an attorney may be sanctioned for misconduct that occurs in a private capacity. In re Abbamonto, 19 Ill.2d 93, 96, 166 N.E.2d 62 (1960). Unless the respondent had a lengthy history of problems related to drug or alcohol abuse, however, we find only a few cases where a suspension until further order of court was ordered when the misconduct was completely unrelated to the practice of law.

In In re Lutz, 01 CH 40, petition for discipline on consent allowed, No. M.R. 17955 (March 22, 2002), the respondent was charged with several criminal offenses following a domestic dispute where police were called and respondent fought with the officers. The respondent pleaded guilty to resisting arrest. Examination showed that Lutz suffered from several mental disorders, as well as alcohol dependency. He had not practiced law for the last ten years and chose not to seek treatment of his psychiatric problems, agreeing instead to a suspension of one year and until further order of court.

The respondent in In re Davidson, 01 CH 52, petition for discipline on consent allowed, No. M.R. 17869 (January 29, 2002), was suspended for six months and until further

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order of court after repeatedly violating an order of protection entered against him. The violations included more than thirty harassing telephone calls to his former girlfriend, which were specifically prohibited by the court's order.

In In re Russell, 07 SH 29, petition for discipline on consent allowed, No. M.R. 21989 (January 23, 2008), the respondent suffered from an impulse control disorder for which she was receiving therapy. She was suspended for one year and until further order of court, stayed in its entirety by a five-year period of probation, after committing at least 23 instances of retail theft.

Finally, in In re Roth, 06 CH 72, petition for discipline on consent allowed, No. M.R. 21872 (November 20, 2007), the respondent agreed to a suspension of thirty months and until further order of court after pleading guilty to three felony counts of possession of child pornography.

All of these cases involved discipline on consent and thus the sanctions were not the result of the full presentation of the evidence that occurred in this case. They do not indicate that a similar sanction is needed here.

A suspension until further order of court operates as the functional equivalent of disbarment. In re Baril, 00 SH 14 (Review Board, March 18, 2002), approved and confirmed in part, suspension affirmed, No. M.R. 18162 (September 19, 2002). It is a sanction that the Review Board has found to be warranted "only in very limited circumstances." In re Kowalski-Bradley, 99 CH 77 (Review Board, September 17, 2001), Administrator's motion to approve and confirm in part allowed, No. M.R. 17802 (January 28, 2002). We conclude that under these circumstances, Respondent does not need to be subjected to what our Supreme Court has described as "after disbarmentů.the most severe [sanction] that [it] can impose on an attorney."

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In re Timpone, 208 Ill.2d 371, 386, 804 N.E.2d 560, 281 Ill. Dec. 595 (2004). The Hearing Board found that Respondent engaged in conduct tending to bring the legal profession into disrepute by 1) committing a misdemeanor battery and 2) conduct that resulted in the entry of ex-parte and plenary orders of protection. We decline to impose a sanction of the magnitude suggested the Administrator on the basis that Respondent might harm a client sometime in the future.

Although we find a suspension until further order of court unwarranted, we are in agreement that the circumstances indicate that oversight is needed. Supreme Court Rule 772 provides that an attorney who has committed misconduct may be placed on probation if he demonstrates that he:

  1. can perform legal services and the continued practice of law will not cause the courts or profession to fall into disrepute;

  2. is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;

  3. has a disability which is temporary or minor and does not require treatment and transfer to disability inactive status; and

  4. is not guilty of acts warranting disbarment.

We find that those conditions have been met here. Respondent's misconduct was serious, but does not require his disbarment. While she recommended certain conditions, Dr. Artal was of the opinion that Respondent's mental health issues would not preclude his safe and competent practice of law. We are aware that Dr. Jeckel does not share this opinion. However, we give greater weight to Dr. Artal's evaluation, as she has treated Respondent outside of the context of the disciplinary proceedings, and her examination for this case was two months prior to the hearing while Dr. Jeckel's was almost a year beforehand. Additionally, "our function is not to

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render an opinion about what is best for Respondent as a patient. Rather, our task is to recommend a discipline based on the twin goals of determining whether [he] is a fit person to practice law and whether the public and profession will be protected and safeguarded" if he does so. In re Sutherin, 03 CH 61 (Review Board, November 21, 2005), Respondent's petition for leave to file exceptions denied, No. M.R. 20636 (September 20, 2006). We conclude that under the conditions described below, Respondent will be able to practice law without first having to show that he has successfully undertaken the profound re-examination of his life that Dr. Jeckel recommends.

Bipolar Affective Disorder is a serious matter. While at first blush, it does not appear to meet the requirements of "a disability which is temporary or minor and does not require treatment and transfer to disability inactive status," we conclude that these terms must be read in the conjunctive, rather than the disjunctive sense. Respondent's condition requires treatment, but he does not require transfer to disability inactive status. After consideration of the unique facts and circumstances of this case, we determine that Respondent meets the requirements of the rule.

We emphasize again Respondent's mental condition has never resulted in harm to a client.. Respondent has a lengthy history of seeking help when he is in need of it, and the evidence in this case supports the presumption that by following the conditions set forth below, his unblemished record will continue. Neither his bipolar problem, nor the fact that Respondent is not yet undergoing treatment is a bar to our recommendation. See, e.g., In re Sanders, 03 CH 122, discipline on consent allowed, No. M.R. 20769 (March 21, 2006). We find from the evidence presented that Respondent is able perform legal services and do so without causing the

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courts or legal system to fall into disrepute or causing harm to the public, if the recommended safeguards are put into place.

The circumstances of this case are unique, as is the sanction that we recommend. However, the ultimate objective of attorney discipline is not to punish the Respondent, but to impose a sanction "that is uniquely tailored to the precise facts of each particular case." In re Jordan, 157 Ill.2d 266, 274, 623 N.E.2d 1372, 191 Ill. Dec. 486 (1993). We are confident that our recommendation will both encourage Respondent to get the help he needs, and protect the public and the profession.

We affirm the Hearing Board's findings of fact and findings of misconduct, and recommend that Respondent be suspended from the practice of law for a period of two years, stayed in its entirety by a five-year period of probation, subject to the following conditions:

  1. Within thirty days of the Court's order, Respondent shall enter into a course of treatment with a qualified mental health professional acceptable to the Administrator, and shall report to the mental health professional as often as deemed warranted by such professional;

  2. Respondent shall comply with all treatment recommendations of the mental health professional, including the taking of medications as prescribed;

  3. Respondent shall provide to the mental health provider, an appropriate release authorizing the treating professional to: (1) disclose to the Administrator on at least a quarterly basis information pertaining to the nature of Respondent's compliance with any treatment plan established with respect to Respondent's condition; (2) promptly report to the Administrator Respondent's failure to comply with any part of an established treatment plan; and (3) respond to any inquiries by the Administrator regarding Respondent's mental or emotional state or compliance with any established treatment plans;

  4. Respondent shall notify the Administrator within fourteen (14) days of any change in treatment professionals;

  5. Respondent shall abstain from the usage of alcohol and any unprescribed controlled substances;

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  1. Respondent shall, upon request by the Administrator, submit to random substance testing by a mental health professional or facility approved by the Administrator, within eight (8) hours of receiving notice by the Administrator that he shall submit to the testing. The results of the tests shall be reported to the Administrator. Respondent shall pay any and all costs of such testing;

  2. Should Respondent decide to resume the practice of law at any time during the probationary period, his practice shall be supervised by a licensed attorney who is aware of Respondent's mental health issues and is acceptable to the Administrator. This supervision shall continue for one year or for the remainder of his probation, whichever is less. Respondent shall notify the Administrator of the name and address of any and all attorneys with whom he establishes a supervisory relationship, and shall provide notice to the Administrator of any change in supervising attorney within fourteen (14) days of the change. Respondent shall authorize the supervising attorney(s) to provide a report in writing to the Administrator no less then every three (3) months, regarding the nature of Respondent's work, the number of cases being handled by Respondent and the supervisor's general appraisal of Respondent's continued fitness to practice law;

  3. Should Respondent decide to resume the practice of law at any time during the probationary period, he shall attend and successfully complete the course conducted by the Illinois Professional Responsibility Institute within the first six (6) months following the resumption of his practice;

  4. Respondent shall attend meetings scheduled by the Commission probation officer as requested by the Administrator. Respondent shall submit quarterly written reports to the Administrator concerning the status of his practice of law and the nature and extent of his compliance with the conditions of probation;

  5. Respondent shall notify the Administrator within fourteen (14) days of any change of address;

  6. Respondent shall comply with the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigations relating to his conduct;

  7. Respondent shall reimburse the Commission for the costs of this proceeding, as defined in Supreme Court Rule 773, and shall reimburse the Commission for any further costs incurred during the period of probation;

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  1. Probation shall be revoked if Respondent is found to have violated any of the terms of probation. The two-year period of suspension shall commence on the date of the determination that his probation has been violated; and

  2. Probation shall terminate after five years, without further order of court, as long as Respondent complies with these conditions.

Date Entered: 22 February 2008

Respectfully Submitted,

Bruce J. Meachum
David F. Rolewick
Thomas A. Zimmerman, Jr.