Filed May 9, 2008
In re David Mark Laz
Commission No. 05 CH 114
Synopsis of Review Board Report and Recommendation
The Administrator filed a four-count complaint against Laz, charging him with neglecting a client's appeal, forging a child support agreement and other court documents, and engaging in criminal conduct consisting of attempt obstruction of justice and attempt forgery. Laz admitted most of the factual allegations and most of the allegations of misconduct.
The Hearing Board found that the Administrator proved the charges against Laz and recommended that his license be suspended for two years, with the suspension stayed after one year by probation.
The Administrator filed exceptions to the Hearing Board's Report and Recommendation. He argued before the Review Board that Laz should receive a three-year suspension without probation because Laz's misconduct was not the type that could be monitored or prevented by probation, his misconduct was not caused by his mental condition, and his mental condition has been stable for several years.
After considering the nature of Laz's misconduct, the evidence pertaining to his mental condition, the factors in aggravation and mitigation, the pertinent case law, and all of the relevant circumstances, the Review Board determined that a term of probation would be appropriate and agreed with the Hearing Board's recommendation that Laz be suspended for two years with the suspension stayed after one year by probation.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
DAVID MARK LAZ,
Commission No. 05 CH 114
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes before the Review Board on the exceptions of the Administrator-Appellant to the sanction recommended by the Hearing Board for Respondent-Appellee, David Mark Laz. The Administrator charged Laz in a four-count complaint with neglecting a client's appeal, forging a child support agreement and other court documents, and engaging in criminal conduct consisting of attempt obstruction of justice and attempt forgery. Laz admitted most of the factual allegations and most of the allegations of misconduct.
The Hearing Board found that the Administrator proved all of the charges against Laz. It recommended that Laz be suspended for two years, with his suspension stayed after one year by probation.
The Administrator contends that probation is not appropriate and Laz should receive a three-year suspension. The Hearing Board's factual findings and findings of misconduct are not at issue.
The following evidence was adduced at the hearing.
Laz received his license to practice law in 1982. His practice focuses primarily on matrimonial law.
Laz represented Kenneth Brooks in a post-decree matter and filed on his behalf two notices of appeal from orders pertaining to custody issues. Both appeals were dismissed for want of prosecution. Laz did not inform Brooks that his appeal had been dismissed. Brooks testified that Laz owed him $4500 in unearned fees. Laz admitted that he owed Brooks at least $2500. Laz went to Brooks's home two days prior to the hearing below and offered him a check for $2500, which Brooks refused. The Hearing Board found that Laz should refund at least $2500 to Brooks.
The Hearing Board found that Laz failed to act with reasonable diligence in representing Brooks, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct;1 failed to keep Brooks reasonably informed about the status of his case and to respond to Brooks's requests for information, in violation of Rule 1.4(a); failed to return unearned fees to Brooks, in violation of Rule 1.16(e); and engaged in conduct that was prejudicial to the administration of justice and that tended to defeat the administration of justice and bring the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 770.
Laz represented Samuel Bowes in a post-decree child support matter. Laz and opposing counsel Emily R. Carrara negotiated an agreement to reduce Bowes's monthly support payment. On February 26, 2003, Carrara gave Laz a copy of an agreed order signed by Bowes's ex-wife, Lora Kendrick. Before he had the agreed order entered on November 14, 2003, Laz made handwritten revisions that reduced his client's monthly support payment and the arrearage he owed Kendrick. Laz made these changes without the knowledge or consent of Carrara or Kendrick and represented to the court that the revised order was an agreed order. Laz also told that court that the case was on its call, when in fact it was not.
The Hearing Board found that Laz knowingly and intentionally changed the terms of the agreed order, thereby committing the criminal act of forgery (720 ILCS 5/17-3 (West 2006)) and violating Rule 8.4(a)(3). The Hearing Board did not believe Laz's testimony that Bowes told him that Kendrick agreed to the changes.
The Hearing Board further found that Laz made a false statement of material fact to the court in violation of Rule 3.3(a) when he told the court that the matter was on the court call and that the order was agreed; engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4); and engaged in conduct that was prejudicial to the administration of
justice and that tended to defeat the administration of justice and bring the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 770.
Laz filed a petition for dissolution on marriage on behalf of Chad Shiffer against his wife, Shelly. Chad and Shelly executed a settlement agreement without their attorneys. Shortly thereafter, Shelly's attorney withdrew. After Shelly's attorney had withdrawn, Laz signed Shelly's name to and filed documents indicating that Shelly would appear pro se, that she waived the statutory period for entering judgment, and that she was ready to proceed with an uncontested prove-up. Shelly was not present when Laz signed these documents and had not reviewed them. Laz admitted that his conduct was "very inappropriate."
The Hearing Board found that Laz committed forgery, thereby committing a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer, in violation of Rule 8.4(a)(3); made a false statement of material fact to the court, in violation of Rule 3.3(a); engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4); and engaged in conduct that was prejudicial to the administration of
justice and that tended to defeat the administration of justice and bring the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 770.
Laz was convicted of attempt obstruction of justice and attempt forgery in two separate cases. In June 2003, Laz agreed to represent Daniel Romano, who was charged with tendering an insufficient funds check for $783.69 to Sav-Way Liquors. On June 20, 2003, Laz presented a Sav-Way employee with a check for $783.72. Laz was charged with attempting to pay the witness in order to prevent him from testifying against Romano.
In October 2003, Romano gave Laz a check for $45,000 payable to Laz. The check was written on the account of Donald Boscamp, who was a business associate of both Romano and Laz. Laz knew that Boscamp's account was closed, but signed Boscamp's name to the check and deposited it into his business account. Laz testified that he owed $45,000 to his neighbor, Larry Miller, and he deposited the bad check so he could show Miller that he had the funds to repay him. Laz was charged with attempt forgery for knowingly signing Boscamp's name to the check without his authority and depositing the check into his business account.
Laz pleaded guilty to both charges and was sentenced to 300 hours of community service with conditional discharge after two years. Laz later moved to withdraw his guilty plea, but eventually withdrew that motion.
The Hearing Board found that Laz's convictions for attempt forgery and attempt obstruction of justice constituted criminal acts that reflect adversely on his honesty, trustworthiness or fitness as a lawyer, in violation of Rule 8.4(a)(3). The Hearing Board further found that Laz engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4); offered a prohibited inducement to a witness, in violation of Rule 3.4(a)(2); and engaged in conduct that was prejudicial to the administration of justice and that
tended to defeat the administration of justice and bring the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 770.
EVIDENCE IN MITIGATION
Laz testified that his wife has a history of mental illness. In September 2002, she set the family home on fire. She was then placed in residential treatment, where she stayed until June 2004. Laz and his two sons lived with Laz's mother while their home was being rebuilt. One of Laz's sons has required psychiatric treatment since the fire.
Laz testified that he sought treatment for anxiety and depression in the late 1990s. These problems worsened after the fire because of the stress he was experiencing. Laz testified that his judgment was impaired by his psychiatric condition and the events in his personal life.
Laz continues to receive psychiatric treatment and his condition is stable. His wife returned to the family in 2004, and her mental condition is under control.
Laz further testified that he occasionally represents clients pro bono and is involved in religious and charitable activities. Two judges and an attorney testified that Laz has a good reputation in the legal community.
Stafford Henry, M.D., a board-certified forensic psychiatrist, examined Laz at the Administrator's request. Dr. Henry diagnosed Laz with a history of panic disorder and personality disorder not otherwise specified. He determined that Laz's anxiety symptoms were in remission and he was free of symptoms of major psychiatric illness. He gave the opinion that Laz's misconduct was volitional and within his conscious control. Dr. Henry recommended that Laz would benefit from continuing his psychiatric treatment, being assigned a mentor to monitor his practice, and attending ARDC-sponsored seminars.
Neither party challenges the Hearing Board's findings of fact or findings of misconduct. Therefore, we recommend that those findings be affirmed in their entirety.
The Administrator challenges the propriety of the Hearing Board's recommended sanction of a two-year suspension with the suspension stayed after one year subject to probation. The Administrator contends that probation is not appropriate in this matter because (1) Laz engaged in intentional, dishonest conduct, (2) Laz's misconduct was not caused by his mental condition, and (3) probation would serve no purpose because Laz's mental condition has been under control for the past several years.
The Hearing Board's sanction recommendation is advisory. In re Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900 (1981). When considering our sanction recommendation, we bear in mind the purposes of the disciplinary system: safeguarding the public, maintaining the integrity of the profession, and protecting the administration of justice from reproach. See In re Timpone, 157 Ill.2d 178, 623 N.E.2d 300 (1993). We strive to recommend similar discipline for similar misconduct, but must evaluate each case on its own circumstances. In re Bell, 147 Ill.2d 15, 37, 588 N.E.2d 1093 (1992). Those circumstances include the nature of the misconduct and any aggravating or mitigating factors. In re Witt, 145 Ill.2d 380, 583 N.E.2d 526 (1991).
The Administrator is correct that in some cases the Review Board has rejected requests for probation when an attorney has engaged in a course of intentional, dishonest conduct, under the reasoning that such behavior is not the type that may be monitored or prevented by probation. See In re Olton, 05 SH 27 (Review Board, Feb. 14, 2007), approved and confirmed, No. M.R. 21597 (May 18, 2007). However, a finding or admission of intentional, dishonest conduct does not always preclude probation. There is precedent for recommending a suspension partially stayed by probation for an attorney who has engaged in dishonest conduct and who had a mental condition that contributed to his misconduct.
In In re Bazer, No. 97 CH 65, petition to impose discipline upon consent allowed, No. M.R. 15634 (March 24, 1999), the attorney converted funds, neglected several cases, made false statements about the status of some of those cases and failed to respond to the Commission's requests for information. He suffered from major depressive disorder, which contributed to his misconduct. His license was suspended for two years, with the second year stayed subject to probation.
Similarly, in In re Cooper, No. 06 SH 82, petition to impose discipline upon consent allowed, No. M.R. 21767 (Sept. 18, 2007) an attorney who suffered from bipolar disorder was given a one-year suspension, stayed after 30 days in favor of a two-year period of probation, for misconduct that included conversion, neglecting three clients' cases, making misrepresentations to a client, and failing to return an unearned fee.
Moreover, the Administrator's argument that Laz's misconduct is not of a type that can be monitored or prevented by probation seems to focus solely on the probation portion of the Hearing Board's recommendation while ignoring the rest of the recommendation, namely, that Laz's license would be suspended for a period of time before the probationary period would begin. We determine that a period of actual suspension followed by probation adequately addresses the severity and nature of Laz's misconduct as well as the need for further assistance to prevent future misconduct. In reaching our determination, we are guided by the supreme court's instruction in In re Jordan, 157 Ill. 2d 266, 274 623 N.E.2d 1372 (1993):
Our ultimate objective in attorney discipline is not to be harsh or to punish the respondent, but to impose a sanction that is uniquely tailored to the precise facts of each particular case. (See, e.g., In re Owens (1991), 144 Ill.2d 372, 380, 163 Ill.Dec. 479, 581 N.E.2d 633 (per curiam)). To this end we must retain a degree of flexibility in disciplining unprofessional conduct, so that we are guided by the spirit of our rules, not merely by a strict or technical interpretation of terminology.
Based on the Hearing Board's finding that Laz's mental condition contributed to his misconduct and the precedent cited supra, we reject the Administrator's argument that Laz is not a candidate for probation because he engaged in dishonest conduct.
Next, the Administrator argues that the Hearing Board's finding that there was no causal connection between Laz's mental condition and his misconduct precludes the imposition of probation. We disagree. Probation was ordered in Bazer and Cooper, where experts opined that the attorneys' mental conditions contributed to their misconduct. In neither case did the expert opine that the attorney's mental condition caused their misconduct. Bazer, No. 97 CH 65, petition to impose discipline upon consent allowed, No. M.R. 15634 (March 24, 1999), Cooper, No. 06 SH 82 at 4, petition to impose discipline upon consent allowed, No. M.R. 21767 (Sept. 18, 2007).
The Administrator further argues that probation would serve no purpose because Laz's mental condition has remained stable for the past several years. This is a curious argument for several reasons. First, the Administrator's expert, Dr. Henry, opined that Laz would benefit from continued mentoring and treatment, which are required by the terms of probation, and that his recommendations would hopefully reduce the likelihood of future misconduct. The Administrator has not explained why we should accept his opinion as to whether probation would be helpful over Dr. Henry's. Furthermore, we conclude that Laz's stable mental condition weighs in favor of allowing him to return to practice while under probation. If we were to adopt the Administrator's position, Laz would be penalized for doing the things he is supposed to do—getting help for his problems and following the treatment recommendations of medical professionals. It is unclear, under the Administrator's rationale, when probation would ever be appropriate for attorneys who are diagnosed with mental disorders. Probation would "serve no purpose" for those who are stable, and, presumably, those who are unstable should not be
eligible because allowing them to practice could put the public at risk. The appropriate question is not whether an attorney's mental condition is stable, but whether a term of probation will "protect the public and assist the attorney with problems that contributed to his misconduct." See Smith, No. 04 CH 78, Hearing Board Report and Recommendation at 32, citing In re Jordan, 157 Ill. 2d 266, 623 N.E.2d 1372 (1993). We determine that these purposes will be served here by a term of probation. For all of the foregoing reasons, we disagree with the Administrator that probation is inappropriate in the instant case.
The Administrator further contends that Laz's misconduct warrants a three-year suspension. Laz appears to argue that his sanction should be limited to probation, without any actual suspension. We reject Laz's contention. His misconduct was egregious and warrants a period of suspension. In addition, his misconduct is aggravated by his lack of remorse for his misconduct and the harm he caused to his clients.
The Hearing Board relied on In re Thebeau, 111 Ill.2d 251, 489 N.E.2d 877 (1986), as support for its recommendation of a two-year suspension. It recognized that Laz's misconduct was more extensive than that in In re Thebeau, but concluded that Thebeau was sufficiently similar to support its recommendation. The Administrator contends that the circumstances in Thebeau differ significantly from those in the instant case.
Thebeau made false statements to the probate court and assisted a client in forging his brothers' names on documents so that the client could obtain the deed to his deceased mother's home from her estate. The court indicated that a two-year suspension was appropriate for Thebeau's misconduct, but because Thebeau already had voluntarily stopped practicing law, he would be given credit for that time and would be suspended for only one year. The court noted that Thebeau's fraudulent acts were "of a more aggravated character than found in fraud
for monetary gain" because they were practiced upon the judicial system. Thebeau, 111 Ill.2d at 256, 489 N.E.2d 877.
We agree with the Hearing Board that Thebeau supports a two-year suspension in this matter. We find further support in the numerous additional cases in which attorneys who have committed forgeries have received two-year suspensions. See In re Altman, 128 Ill.2d 206, 538 N.E.2d 1105 (1989), two-year suspension for forging an endorsement on a check and using the funds for personal purposes for three months before repaying them; In re Costigan, 63 Ill.2d 230, 347 N.E.2d 129 (1976), two year suspension for forging trustees' names onto documents used to obtain a loan and using the loan proceeds to pay personal debts; In re Williams, No. 06 SH 88, petition to impose discipline upon consent allowed, No. M.R. 21629 (May 18, 2007), two year-suspension imposed for fabricating false bank correspondence and false auto insurance cards that were given to attorney's ex-wife and for practicing law after attorney had been removed from the Master Roll; In re O'Neill, No. 94 CH 685, petition to impose discipline upon consent allowed, No. M.R. 10658 (Jan. 25, 1995), two-year suspension for neglecting an estate, making misrepresentations to the probate court, and forging a signature on a receipt filed with the court.
Laz's misconduct was serious, but we also consider the evidence in mitigation, including the lack of prior discipline, favorable testimony about Laz's character from two respected judges and an attorney, and the Hearing Board's finding that personal gain was not the motivation for Laz's misconduct. After considering these and all of the relevant circumstances, we recommend that Laz's license to practice law be suspended for two years, with the suspension stayed after one year subject to conditional probation.
Last, we note that counsel for the Administrator argues for the first time in her reply brief that the Review Board should take judicial notice of the fact that a new disciplinary
complaint has been filed against Laz (In re Laz, No. 07 CH 121, complaint filed Dec. 12, 2007) as evidence of a propensity to commit further misconduct. While we may take judicial notice of the public records of the Commission (In re Owen, 144 Ill.2d 372, 378-79, 581 N.E.2d 633 (1991)), it would be unfair to give any consideration to the newly filed complaint because the issue was not raised until the reply brief, and Laz has had no opportunity to respond. Moreover, there has been no proof of the new charges. We will not use unproven allegations as a basis for our sanction recommendation.
Accordingly, we recommend that Hearing Board's factual findings and findings of misconduct be affirmed. We recommend that the license of Respondent, David Mark Laz, be suspended for two years, with the suspension stayed after one year by probation subject to the following conditions set forth by the Hearing Board, which we adopt:
1. Laz shall pay restitution to Kenneth Brooks in the amount of $2500.
2. Laz shall attend and successfully complete the course conducted by the Illinois Professional Responsibility Institute.
3. Laz 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.
After the initial one-year period suspension, and after Laz complies with the above listed conditions, the probationary period can begin with Laz complying with the following conditions:
4. Laz shall remain under the care of a psychiatrist and shall comply with all treatment recommendations of the mental health care professional(s), including the taking of prescribed medications;
5. Laz shall provide to his treating mental health care professional(s) an appropriate release as required under the Confidentiality Act of the Mental Health Code, 740 ILCS 110/1 et seq., authorizing the treating professional(s) to: (a) disclose to the Administrator on at least a quarterly basis information pertaining to the nature of Laz's compliance with his treatment plan; (b) promptly report to the Administrator Laz's failure to comply with any part of the established treatment plan; and (c) respond to any inquiries by the Administrator regarding Laz's mental or emotional state or compliance with any established treatment plans.
6. Laz shall notify the Administrator of the name and business address of his mental health care professional(s) and shall notify the Administrator within 14 days of any change in treatment providers and professionals.
7. Laz's practice of law shall be supervised by a licensed attorney acceptable to the Administrator.Laz shall notify the Administrator of the name and address of any and all attorneys with whom he establishes a supervisory relationship.Laz shall authorize the supervising attorney to provide a report in writing to the Administrator no less than every three months, regarding the nature of Laz's work, the number of cases being handled by Laz and the supervisor's general appraisal of Laz's continued fitness to practice law.
8. Laz shall attend meetings scheduled by the Commission probation officer as requested by the Administrator.Laz shall submit quarterly written reports to the Administrator concerning the status of his practice of law and the nature and extent of compliance with the conditions of probation.
9. Laz shall notify the Administrator within 14 days of any change of address.
10. Laz 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.
11. Probation shall be revoked if Laz is found to have violated any of the terms of probation. The remaining period of suspension shall commence from the date of the determination that any term of probation has been violated.
Date Entered: 9 May 2008
Bruce J. Meachum
1 Unless otherwise specified, all citations to Rules are to the Illinois Rules of Professional Conduct.