Filed June 27, 2008

In re Barry Michael Seltzer
Commission No. 05 CH 113

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; 2) engaging in conduct which is prejudicial to the administration of justice; and 3) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: 8.4(a)(3) and 8.4(a)(5) of the Illinois Rules of Professional Conduct, and Supreme Court Rule 770.

RECOMMENDATION: One year suspension until further order of Court, stayed after ninety days by two year period of probation.

DATE OF OPINION: June 27, 2008.

HEARING PANEL: Debra J. Braselton, Patrick M. Blanchard and Albert C. Baldermann.

RESPONDENT'S COUNSEL: Nickolas Dallas.

ADMINISTRATOR'S COUNSEL: Cass Buscher.

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

In the Matter of:

BARRY MICHAEL SELTZER,

Attorney-Respondent,

No. 6184869.

Commission No. 05 CH 113

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on February 27, 2008 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") in Chicago, Illinois before a hearing panel consisting of Debra J. Braselton, Chair, Patrick M. Blanchard and Albert C. Baldermann. Cass Buscher represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent Barry Michael Seltzer was represented by Nickolas Dallas.

PLEADINGS

On December 15, 2005, the Administrator filed a one-count Complaint against Respondent. The Complaint alleged that Respondent committed a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer by virtue of his conviction for aggravated assault with a deadly weapon without intent to kill.

In his Answer to the Complaint, Respondent admitted he was arrested and charged with aggravated assault with a deadly weapon without intent to kill, and that he subsequently pled nolo contendere to the charge. He denied any charges of professional misconduct.

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THE EVIDENCE

The Administrator presented one witness, Dr. Stafford Henry, and tendered one exhibit. Respondent testified on his own behalf and presented seven exhibits.

Admitted Allegations

On October 27, 2004 the Sarasota Police Department arrested Respondent and charged him with one felony count of aggravated assault with a deadly weapon, without the intent to kill, in violation of Florida Statute 784.021(1A). On September 20, 2005 Respondent appeared before the Honorable Andrew D. Owens and entered a plea of nolo contendere to the felony charge. At that time Judge Owens entered an order which indicated that "adjudication of guilt be withheld."

Respondent was sentenced to three years probation subject to a permanent injunction enjoining him from contact with Katherine Harris, and directing him to continue with his mental health treatment and counseling. The sentencing order further stated that the probation may terminate after eighteen months if all terms are met.

Dr. Stafford Henry

Dr. Stafford Henry, a licensed physician, is board certified in general psychiatry, forensic psychiatry and addiction psychiatry. He testified as an expert in forensic psychiatry, an area which involves the interplay between law and psychiatry. (Tr. 17-20).

Dr. Henry reviewed Respondent's medical records, a portion of his court file, and the Administrator's Complaint and Respondent's Answer. He also spoke by telephone with Respondent's current medical provider and on February 18, 2008, he conducted a three and one half hour face-to-face evaluation of Respondent. Dr. Henry's report of his psychiatric evaluation of Respondent was admitted into evidence. (Tr. 21-22; Admin. Ex. 1).

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Dr. Henry stated that during his interview with Respondent, Respondent was initially guarded and nervous, but overall was very credible, straightforward, and cooperative. As to the events which led to Respondent's arrest in October, 2004, Respondent informed Dr. Henry that as he was driving through an intersection, his cell phone rang and, when he reached for it, his car veered to the right. When he looked up, he was surprised to see campaign workers holding placards supporting Congresswoman Katherine Harris. Respondent denied driving up on the curb and could not remember if the campaign workers were in the street or on the edge of the sidewalk. Respondent also denied knowing that Harris was present, or that he could even recognize her. Respondent told Dr. Henry that when he realized his vehicle was approaching the workers, he turned the steering wheel hard to the left to avoid them. He then proceeded on his way and gave no further thought to the incident. (Tr. 27-28, 52, 66).

Respondent reported to Dr. Henry that he later learned from one of his tenants that the police were looking for him. That evening he took his medication for depression, as usual, and then contacted the police. At their request, he went to the police station. Respondent recalled that when he was speaking to the police, he "rambled" and talked about situations that disturbed him. When the police asked about the campaign workers, he made a comment to the effect of "if I intimidated them, so be it." The police took Respondent into custody and he was incarcerated for several days before being taken to Sarasota Memorial Hospital where he was diagnosed with bipolar disorder. (Tr. 28-30, 42).

Dr. Henry noted that, prior to his hospitalization, Respondent had not been diagnosed with a bipolar condition, but he has been treated for depression since the mid-1980s. Since bipolar disorder is characterized by both depression and periods of mania, Dr. Henry felt

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Respondent's treatment for depression alone was inadequate and may have pushed him into manic phases from which he could not recover. (Tr. 24-25).

From his review of the information available to him, Dr. Henry was of the opinion that Respondent suffers from bipolar disorder, which is characterized by discreet episodes of major depressive disorder alternating with discreet episodes of mania and hypomania. Dr. Henry believed that at the time of the driving incident, Respondent was suffering acute symptoms of bipolar disorder which caused him to exercise very poor judgment. Dr. Henry's opinion was based upon Respondent's report of the incident, the diagnosis made at Sarasota Memorial Hospital, a conversation with Respondent's therapist, Paul White, who visited Respondent at the hospital and described Respondent as being very agitated at that time, and the fact that Respondent had experienced previous episodes of mania and hypomania in 1995 and 1997. Specifically, when Respondent was in Italy in 1995, he extended his stay from two weeks to two months, experienced problematic alcohol use and periods of decreased sleep, and impulsively put on a large fireworks display. Similarly, in 1997 he drove to California to escape the winter weather but ended up staying and buying a building. During those time periods Respondent was taking antidepressant medication with no mood stabilizer. Dr. Henry noted that individuals who are manic tend to be impulsive, self-indulgent, gregarious, exercise exceedingly poor judgment, engage in spending sprees, and take action that has a high risk of harm. (Tr. 22, 29-31, 39-40, 43-44, 46, 49, 57-58, 65, 72; Admin. Ex. 1).

Dr. Henry also considered the fact that Respondent had a difficult time recalling the details of the driving incident, which is typical for someone who is acutely manic during the period in question. Dr. Henry expressed some doubts about Respondent's report that he was reaching for his cell phone at the time of the incident because when Respondent described that

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action, his voice exhibited a hesitancy and a lack of cadence. When shown one witness report indicating that Respondent had a cell phone, Dr. Henry stated he would be inclined to give Respondent the benefit of the doubt, even though Respondent's use of the phone would not necessarily corroborate his time sequence. Another witness report indicated that no cell phone was observed. (Tr. 26, 32, 47, 50-53, 66-67, 71; Resp. Ex. 7).

Dr. Henry stated that, at the time of Respondent's arrest in 2004, Respondent had the potential for making statements that were harmful to himself and used very poor judgment. Dr. Henry believes Respondent's comment to the police regarding his possible intimidation of the campaign workers was very telling and reflective of how he was feeling at the time. Dr. Henry viewed Respondent's driving incident and his statements at the police station as part of one continuous psychiatric episode. (Tr. 41, 51, 65, 72).

Dr. Henry stated that Respondent's current treatment consists of psychotherapy and medication prescribed by Dr. G. William Lose, a psychiatrist Respondent has been seeing for the past eighteen months. He also has regular contact with a psychotherapist, Paul White, who has described Respondent as a very compliant patient. Dr. Henry feels Respondent is in a critical window because he was recently weaned off a mood-stabilizing medication, which had caused him to gain weight, and placed on a different medication. (Tr. 23, 33, 53, 60).

With respect to Respondent's future treatment, Dr. Henry recommended permanent psychiatric care, with close monitoring for the next eight or nine months to assess the recent change in medication. In addition, Dr. Henry believes Respondent should remain under the treatment of his therapist, Paul White, join a men's therapy group, and remain abstinent from alcohol. If Respondent were to cease treatment, he would be at risk for further manic episodes as well as behavior that is reflective of very poor judgment. Dr. Henry was not aware that

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Respondent has had any manic episodes since he began treatment for his bipolar disorder in 2004. (Tr. 33-36, 42, 69).

Respondent

Respondent currently resides in Sarasota, Florida. He is not licensed to practice law in Florida and is on retired status in Illinois. Respondent stated he has no intention of practicing law or moving back to Illinois but, because he worked hard to obtain his law license and is proud to be a member of the bar, he would like to retain his Illinois license. (Tr. 92-93).

With respect to the driving incident that occurred in October 2004, Respondent agreed with Dr. Henry's recitation of the events. He stated that he reported to the Sarasota Police Station early the following morning. At that time he was arrested and held in custody under a $500,000 bond. On November 4, 2004 Respondent's father posted a cash bond and he was released from custody. Respondent then went to the Sarasota Memorial Hospital where he stayed for approximately two weeks. Following his release from the hospital, he was under house arrest for four to five months and subject to probation conditions. (Tr. 81-83, 91).

Respondent denied knowing Katherine Harris at the time of the incident or what she looked like. To his knowledge, the people standing on the corner with placards were campaign workers. He stated he feels he was a victim because the national media reported that he drove up on the sidewalk in an attempt to kill a Congresswoman. He denied driving up on the sidewalk or having the intention to cause fear to anyone. He acknowledged that he read Katherine Harris' deposition and realizes that she was fearful. Respondent stated he received death threats after the incident and suffered a terrible ordeal. Occasionally he got reports from his probation officer that the FBI or the Secret Service were checking on him. He denied that the publicity of the

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incident included any reference to the fact that he was an attorney licensed to practice in Illinois. (Tr. 84, 86-87, 90-93).

Respondent testified that, after reflecting on the incidents of October 2004, he accepts responsibility for his actions and deeply regrets his conduct. He feels his actions were out of character because he is not a violent person and he was ill at the time. He regrets causing other people to be fearful, bringing embarrassment to his family and friends, and dishonoring the legal profession by pleading no contest to a felony. (Tr. 83, 85-86, 90).

Respondent identified a letter from his probation officer which indicates that, after the first fourteen months of his probationary period, he was in compliance with the terms and provisions of his probation. On May 11, 2007 a motion to terminate Respondent's probation was granted. (Tr. 88; Resp. Ex. 3, 4).

Respondent also identified a January 22, 2008 letter from his psychiatrist, Dr. G. William Lose, which states that Respondent has been a patient of Dr. Lose's since July 2007. Prior to that time Respondent had been seen by another doctor who closed his practice. Dr. Lose states in the letter that Respondent takes all of his medications and is, in Lose's opinion, "a mild mannered gentleman not a danger to himself or others." (Tr. 88; Resp. Ex. 5).

Finally, Respondent identified a February 11, 2008 letter from his psychotherapist, Paul White, which states that White has seen Respondent for approximately 100 hours of psychotherapy since Respondent's arrest in 2004. White states in his letter that Respondent has been consistent with his medications, which stabilize his moods and normalize his life, and is not a danger to himself or others. White predicts that Respondent will be a productive contributor to society and, if he chooses to return to the practice of law, will be capable and perform in a highly professional manner. (Tr. 89, Resp. Ex. 6).

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Prior Discipline

In 1995 Respondent was involved in his parents' purchase of a home in Evanston, Illinois. Although the actual purchase price was $180,000, Respondent and the seller raised the contract price to $210,000 to allow Respondent's parents to secure a loan of $168,000. The price was increased so that the lender would believe Respondent's parents were making a down payment of 20% when, in fact, they were making a down payment of only $12,000. Respondent informed all parties he would inform the lender of the actual sale price, but he did not do so. At the closing, Respondent falsely told attorneys for both parties that the lender knew and approved the loan based on the actual lower sales price. Respondent signed an affidavit supporting that statement, despite knowing it was false.

As a result of the foregoing conduct, the Administrator charged Respondent with making a false statement to a third party, engaging in dishonesty, and engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. During the course of the disciplinary proceedings, Respondent admitted his wrongdoing and the matter was submitted to the Illinois Supreme Court by way of a Petition to Impose Discipline on Consent. On November 22, 2005 the Illinois Supreme Court suspended Respondent for sixty days. In re Seltzer, 04 CH 136, M.R. 20398 (November 22, 2005).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill.2d 163, 710 N.E.2d 390, 393 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill.2d 477, 577 N.E.2d 762 (1991).

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Respondent was charged with violating several rules of professional conduct. We begin by examining the charge that he committed a criminal act in violation of Professional Rule 8.4(a)(3) "by virtue of his conviction for aggravated assault with a deadly weapon without the intent to kill."

Supreme Court Rule 761, which addresses procedures to be taken when an attorney has been convicted of a crime, states that "in any hearing conducted pursuant to this rule, proof of conviction is conclusive of the attorney's guilt of the crime." It is also a well-settled principle that attorneys are disciplined for the actual conduct underlying the conviction. In re Ciardelli, 118 Ill.2d 233, 514 N.E.2d 1006, (1987). Supreme Court Rule 761(a) requires an attorney to notify the Administrator of a conviction whether it results from a plea of guilty or a plea of nolo contendere.

In this case the Administrator submitted, as proof of Respondent's conviction, a judgment order entered by the Florida court on September 20, 2005 which reflects that Respondent entered a plea of nolo contendere to the charge of aggravated assault with a deadly weapon without intent. The judgment form provides several options for the court with respect to a determination of guilt. In this case an "x" was placed in the box next to the statement "and good cause being shown; It is ordered that Adjudication of Guilt be Withheld." (emphasis in original). We received no evidence that Respondent was subsequently adjudicated guilty of the crime with which he was charged.

At the outset, we believe it is necessary to clarify whether we can treat the Florida court order as a conviction for purposes of these proceedings. Although the exact procedure employed by the Florida court does not appear to exist in Illinois, the Illinois Supreme Court has had occasion to address the effect of a nolo contendere or "no contest" plea in past disciplinary cases.

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In In re Revzan, 33 Ill.2d 197, 210 N.E.2d 519 (1965) the attorney was charged with misconduct after pleading nolo contendere in federal district court to wilful evasion of income tax. In the federal proceeding he was found guilty, his sentence was suspended, and he was placed on probation for two years. In considering the effect of the conviction, the Illinois Supreme Court noted that "it is established by prior decisions of this court that, for the purposes of disciplinary proceedings, a conviction under a plea of nolo contendere is equivalent to a conviction under any other plea," citing In re Eaton, 14 Ill.2d 338, 152 N.E.2d 850, In re Greenberg, 21 Ill.2d 170, 171 N.E.2d 615, 616 (1961).

In In re Vavrik, 117 Ill.2d 408, 512 N.E.2d 1026 (1987) an Illinois attorney who resided and worked in Florida was charged with grand theft in that state. After entering a plea of nolo contendere, he was convicted of one count of grand theft and sentenced to eight years probation and ordered to pay restitution. In the subsequent Illinois disciplinary proceedings based on the Florida conviction, the attorney attached significance to the fact that the Florida sentencing statute vacates the conviction following probation. The Illinois Supreme Court held that the appropriate discipline of an attorney following a conviction will not be contingent upon the technicalities of the sentencing procedure.

In the foregoing cases, convictions were entered pursuant to the nolo contendere pleas and, at least in the Revzan case, the federal district court made a finding of guilt under the plea. While the present case could be differentiated by the fact that Respondent was not adjudicated guilty, we note that the lack of an explicit guilty finding did not preclude the entry of judgment or the imposition of a penalty against Respondent. Rather, the withholding of guilt was a procedure which allowed him to avoid a mark on his record as long as he complied with the terms of probation. We believe that procedure is not unlike the situation in Vavrick, also

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involving a Florida proceeding, in which the conviction was vacated upon successful completion of the probationary period.

In a non-disciplinary case, Gerdes v. Edgar, 148 Ill.App.3d 646, 499 N.E.2d 1016 (4th Dist. 1986) an individual's Illinois driver's license was in jeopardy of being revoked because of his plea of nolo contendere in Georgia to the offense of driving while intoxicated. The Illinois appellate court noted that:

Illinois courts have long recognized that a conviction results from a nolo contendere plea, just as with a guilty plea. Thus, the simple fact of conviction may be used against a defendant in a variety of collateral or civil contexts. [citations omitted]. Although courts may restrict use of any implied admission of the underlying facts following a nolo contendere plea, it is clear that a defendant does not avoid "conviction" simply by pleading nolo contendere rather than guilty.

The court cited to the Revzan and Eaton attorney disciplinary cases as authority for its conclusions.1

We conclude that Respondent's plea of nolo contendere in the Florida proceeding resulted in a conviction for purposes of these disciplinary proceedings and therefore, pursuant to Rule 761, is conclusive of the attorney's guilt of the crime. We note that at hearing Respondent provided little testimony in the way of a defense or explanation of the driving incident, choosing to stand on the version of the facts as related by the Administrator's expert witness. Notably, he did not dispute making a statement to the police that, if he intimidated the campaign workers, "so be it." Dr. Henry found that statement to be very telling of Respondent's attitude and state of mind during the time frame of the incident. We believe the statement reflects his acknowledgement that he had posed a threat to the campaign workers.

Based upon the foregoing, we find that Respondent committed a criminal act that reflects adversely on his fitness as a lawyer by engaging in aggravated assault with a deadly weapon without intent to kill in violation of Rule 8.4(a)(3). We further find, by virtue of Respondent's

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criminal behavior and his acknowledgement that he dishonored the legal profession, that he engaged in conduct which is prejudicial to the administration of justice in violation of Rule 8.3(a)(5) and engaged in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.

RECOMMENDATION

Having found that Respondent engaged in wrongdoing, we must determine the appropriate discipline warranted by the misconduct. In re Rolley, 121 Ill.2d 222, 223, 520 N.E.2d 302 (1988). In determining the proper sanction, we consider the purposes of the disciplinary process. The goal of these proceedings is not to punish but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 623 N.E.2d 300 (1993). Another factor for consideration is the deterrent value of attorney discipline and the need to impress upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill.2d 515, 645 N.E.2d 906, 912 (1994).

We also take into account those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill.2d 380, 583 N.E.2d 526, 535 (1991). In mitigation, we note that Respondent has cooperated fully in these proceedings. In re Chandler, 161 Ill.2d 459, 641 N.E.2d 473 (1994). Further, he expressed remorse for his actions, and for causing others to be fearful.

We also consider in mitigation the fact that Respondent suffers from a bipolar condition and had entered into an untreated manic phase prior to the events charged in the complaint. According to the Administrator's expert witness, Respondent's mental disorder was causally linked to the underlying conduct charged in the Complaint. See In re Crisel, 10 Ill.2d 332, 461

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N.E.2d 994 (1984) (where evidence indicates link between attorney's psychological illness and misconduct, illness is mitigating factor to be considered in determining sanction). Subsequent to the events of October 2004 Respondent sought treatment for his bipolar disorder and, by all accounts, has been compliant with the recommendations of his psychiatrist and psychotherapist.

In aggravation, Respondent was suspended for sixty days in 2005 for signing an affidavit he knew to be false. Prior discipline is typically considered to be a significant factor in determining discipline, especially if the same type of misconduct has been repeated. See In re Levin (1991), 118 Ill.2d 77, 514 N.E.2d 174 (1987). In this case the only similarity between the misconduct before us and the prior misconduct is that both types of misconduct bear on the attorney's fitness to practice law. We also note that Respondent's prior discipline was imposed after the events which gave rise to the current proceedings, and therefore we cannot judge the effect of the prior discipline as a deterrent measure. Given the nature of the past misconduct and the timing of the discipline, we do not accord the prior discipline as much weight as we normally would give to it. See In re Weitzman, 93 CH 511, M.R.12217 (March 26, 1996).

The Administrator has suggested that Respondent's misconduct warrants a one year suspension until further order of the Court, stayed after ninety days by a two-year period of probation during which Respondent would be required to comply with certain conditions. Respondent is not adverse to being placed on probation but questions whether a period of actual suspension is necessary.

In cases where a causal connection has been established between misconduct and a mental illness or addiction, the Court has ordered suspensions stayed by, or in combination with, a period of probation. In In re Mahon, 05 CH 8, M.R. 20379 (September 27, 2005) the attorney was suspended for one year until further order of the Court, stayed entirely by a two-year period

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of probation, for a criminal conviction relating to telephone harassment and disorderly conduct. In mitigation, the attorney had engaged in the misconduct while in an untreated manic phase of his bipolar disorder. Subsequent to his misconduct he was compliant with all medication and treatment recommendations. In In re Feldman, 96 CH 427, M.R. 15208 (November 24, 1998) the attorney was suspended for one year and until further order of the Court, stayed entirely by a three-year period of probation, for committing domestic violence and violating an order of protection, threatening opposing counsel, threatening disciplinary action to gain advantage in a civil matter, and engaging in an unauthorized communication with a represented party. Respondent was diagnosed as suffering from depression, for which he was undergoing treatment.

We also consider In re Schickedanz, 01 SH 108, M.R. 18725 (May 22, 2003) in which the attorney was suspended for six months until further order of Court, with the suspension stayed after 90 days by a four year period of probation for driving under the influence of alcohol and engaging in one instance of neglect. The attorney, who suffered from alcohol addiction, had been previously disciplined for a DUI conviction. Finally, in In re Weiss, 96 CH 607, M.R. 13855 (September 24, 1997) the attorney made harassing and obscene telephone calls to several individuals, and was convicted of the misdemeanor charge of harassment by telephone. The attorney, who was diagnosed with a mental condition which was treatable, was suspended for thirty days followed by a probationary period of two years. In each of the foregoing cases, a key component of probation was the attorney's continued treatment by a mental health professional.

Having considered the foregoing cases, as well as the mitigating and aggravating factors, we agree with the Administrator's recommendation that a one year suspension until further order of court, stayed in part by a period of probation, is appropriate in this case. We decline to recommend that the suspension be stayed in its entirety because of the concerns raised by Dr.

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Henry regarding Respondent's change in medications. Although Respondent is not practicing law at this time and represented that he has no intentions of practicing in the future, his position could very well change. If that change should occur, the public will be adequately protected by his absence from practice during the period when his change in medication is under assessment. Further, we believe that requiring Respondent to serve a period of suspension will help preserve public confidence in the legal profession and the disciplinary system and will impress upon the Respondent the importance of continuing with his treatment and medication regimen.

Accordingly, we recommend that Respondent be suspended for a period of one year and until further order of the Court, that the suspension be stayed after ninety days, and that Respondent be placed on probation for two years subject to the following conditions which will take effect at the commencement of his period of suspension:

  1. Respondent shall continue in his course of treatment with Dr. G. William Lose or other such qualified psychiatrist acceptable to the Administrator, and shall comply with all the treatment recommendations of the psychiatrist, including regularly scheduled office appointments and the taking of medications as prescribed;

  2. Respondent shall provide to Dr. Lose, or such other qualified psychiatrist, 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;

  3. Respondent shall continue in his therapy sessions with his psychotherapist, Paul White, or such other psychotherapist acceptable to the Administrator, and shall comply with any treatment recommendations of the psychotherapist;

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

  5. Respondent shall participate in a support group for men suffering from bipolar disorder, if one is available in the Sarasota, Florida area;

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  1. Respondent shall abstain from the use of alcohol and any unprescribed controlled substances;

  2. Respondent shall participate in meetings and/or telephone conferences 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;

  3. Respondent shall notify the Administrator within fourteen days of any change of address;

  4. 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;

  5. 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;

Probation shall be revoked if Respondent is found to have violated any of the terms of probation. The remainder of the period of suspension shall commence from the date of the determination that any term of probation has been violated, and will continue until further order of the Court.

Date Entered: June 27, 2008

Debra J. Braselton, Chair, with Patrick M. Blanchard and Albert C. Baldermann concurring.

________________________
1 We note that Florida has viewed a plea of nolo contendere, accompanied by the withholding of an adjudication of guilt, as a conviction for purposes of sentencing enhancement. See Montgomery v. State, 897 So.2d 1282 (Fla. 2005); State v. Mason, 5D07-167 and 5D07-327 (Fla. App. 5th Dist, March 14, 2008).  But cf. United States v. Willis, 106 F.3d 966 (11th Cir. 1997) (in deciding whether an individual was a convicted felon pursuant to the firearms statute, the court determined that, under Florida law, the individual's plea of nolo contendere with adjudication of guilt withheld, was not a conviction).  The findings in the foregoing cases were dependent, in large part, on the statutory scheme at issue.