Filed May 16, 2007
IN RE GEORGE C. HOWARD, JR.,
Supreme Court No. M.R. 20173
Commission No. 05 RT 3006
Synopsis of Review Board Report and Recommendation
Howard petitioned for reinstatement after having been suspended until further order of the Court (UFO) in two separate disciplinary proceedings, due to neglect and related misconduct. Howard had previously been disciplined, more than once, for similar misconduct. The Administrator objected to Howard's petition.
After a hearing, the Hearing Board recommended that reinstatement be denied. The Hearing Board's recommendation was based on, inter alia, Howard's unusually serious history of past repeated misconduct and the Hearing Board's conclusion that Howard did not demonstrate understanding of the nature and seriousness of his past misconduct or genuine remorse.
The case was before the Review Board on Howard's exceptions. Howard argued that he should be reinstated. The Administrator sought to have the Review Board uphold the findings and recommendation of the Hearing Board.
A majority of the Review Board agreed with the Hearing Board's recommendation that reinstatement be denied. The Review Board majority relied primarily on Howard's serious past disciplinary history. In the past, after having served a period of probation, Howard engaged in further, similar misconduct. The Review Board majority was concerned that, given Howard's disciplinary history and the Hearing Board's findings as to his lack of remorse or understanding of the nature and seriousness of his past misconduct, Howard would pose a risk to future clients if he were reinstated.
The third member of the Review Board panel dissented. The dissenting member focused on the very favorable evidence presented, from witnesses including prominent judges and lawyers, as to Howard's skills as a trial attorney and his concern for his clients. In the dissenting member's opinion, Howard's past misconduct, while quite serious, should not forever preclude reinstatement. The dissent recommended that Howard be reinstated, subject to a two-year period of probation, with conditions. The conditions, which included mentoring, were designed to protect the public against the risk of future misconduct by Howard, while giving the public the benefits of Howard's skills as an attorney.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
GEORGE C. HOWARD, JR.,
Supreme Court No. M.R. 20173
Commission No. 05 RT 3006
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
Petitioner-Appellant, George C. Howard, Jr., filed a petition seeking reinstatement to the practice of law after a suspension until further order of the Court (UFO). The Administrator-Appellee filed objections to the petition. After a hearing, the Hearing Board recommended that reinstatement be denied.
The case is before the Review Board on Howard's exceptions. Howard contends that he met his burden of proving that he should be reinstated. The Administrator seeks to have the Review Board uphold the Hearing Board's factual findings and recommendation.
On December 12, 1984, the United States Court of Appeals for the Seventh Circuit struck Howard's name from the roll of attorneys admitted to practice before that court. In re Howard, No. D - 54 (7th Cir. Dec. 12, 1984). Two criminal appeals, in which Howard represented the appellants, were dismissed for want of prosecution because Howard failed to respond to rules to show cause issued by the court. In a third criminal appeal, in which Howard represented the appellant, Howard did not respond to a rule to show cause, issued because Howard had not filed a timely brief nor a proper motion for extension of time.1
In 1988, Howard was reprimanded for misconduct that included, but was not limited to, the conduct that led to the Seventh Circuit's action. In re Howard, No. 87 CH 155 (Review Board Sept. 12, 1988). Howard's misconduct involved neglect of five unrelated criminal appeals, leading to the dismissal of those appeals. In addition, in a separate matter, a client retained Howard to represent him in a battery charge. Howard did not appear on two court dates, of which he had notice, or perform any services for the client. In response to the client's request for a refund of the retainer paid, Howard gave the client a check, which was initially dishonored. Despite the pattern of neglect, Howard was reprimanded, given the substantial mitigating evidence.
In 1995, Howard was suspended for twenty-four (24) months, with all but the first five months stayed by probation. In re Howard, No. M.R. 11563 (Sept. 29, 1995). Under this order, Howard was suspended from September 29, 1995 until February 28, 1996. The conditions of probation required Howard to, inter alia, participate in a law office management program during his probation, work under the supervision of another attorney in that program, and pay restitution totaling $25,000 to three separate clients. The misconduct proven in that case involved neglect and related misconduct relating to two criminal appeals, failure to promptly refund unearned fees collected from two clients, and one instance of technical conversion of client funds. In re Howard, No. 92 CH 319 (Hearing Board June 5, 1995). This conduct occurred between 1990 and late 1993. In its report in that case, the Hearing Board observed that Howard did not display a cavalier attitude toward his clients and their cases and that he did not act out of dishonest motives. However, the Hearing Board noted that Howard repeatedly took on more cases than he could handle and that his office management practices were "non-existent at their worst and extremely sloppy at best." Howard, No. 92 CH 319, Hearing Board report p. 34.
During the hearing in that case, Howard testified that he was no longer handling criminal appeals.
In December 1999, Howard was suspended for two years. In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126, 242 Ill. Dec. 595 (1999). Howard represented Reshat Shabani in 1991 in a criminal case in federal district court in Alaska. Howard did not disclose his Seventh Circuit suspension when petitioning to be admitted pro hac vice in Alaska. This false statement was found to have been made negligently and not intentionally or knowingly. Howard later agreed to represent Shabani on appeal. Howard accepted a $25,000 retainer, but did not file a brief. Another attorney completed the appeal. For over a year, Howard did not respond to multiple requests for a refund. At that point, Howard agreed to return $20,000. By the time of the hearing, nearly four years later, Howard had repaid only $15,000. He paid the remaining $5,000 while his case was before the Review Board. In addition, Howard accepted fees and provided legal advice in relation to three separate criminal cases during his 1995-96 suspension. The Court concluded that Howard knowingly practiced law in connection with these matters. Howard ultimately represented one of these clients after his suspension ended, but did not provide the legal services promised to the other clients. Given the extensive mitigating evidence, the Court majority decided that Howard should be suspended. Three justices dissented and would have disbarred Howard.
Howard was suspended for one year and UFO on March 22, 2002. In re Howard, No. M.R. 17965 (March 22, 2002). In September 1997, Howard was retained to represent an individual in a criminal appeal in Michigan and paid a retainer of $5,000. Conflicting evidence was presented concerning Howard's response to the family's requests for a status. Howard was not admitted to practice in Michigan. He attempted to file an appeal, with a motion for
admission pro hac vice. The motion was returned for failure to comply with applicable rules. A subsequent motion for admission pro hac vice was denied, because Howard had not submitted the proper filing fee or complied with applicable court rules. Howard did nothing thereafter. Howard did not return the retainer until May 1999, after disciplinary proceedings were instituted.
On September 19, 2002, Howard was suspended for three years and UFO, effective March 22, 2002, and directed to make restitution of $5,000. In re Howard, No. M.R. 18260 (Sept. 19, 2002). Howard agreed to represent Stephanie Marbles in appealing a criminal conviction. By October 1999, Marbles's mother paid Howard $5,000, of which $1,000 was intended to cover the cost of the transcript. Howard did not deposit the check for the transcript in a trust account, but cashed it. Howard never filed a brief, even though he had told Marbles and her mother that he was working on the case and, at one point, that the brief was prepared. Marbles retained other counsel to prosecute the appeal. Howard sent Marbles a check for $2,500 in December 2000, but it was returned for insufficient funds. The Hearing Board concluded that Howard, inter alia, engaged in conversion, although not with a dishonest motive, and commingling, failed to act with reasonable diligence and promptness in representing a client, failed to provide competent representation, and failed to promptly refund unearned fees. The Hearing Board also found that, by misrepresenting the status of the case, Howard engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation. Despite significant mitigating evidence, Howard was suspended for three years and UFO. See In re Howard, No. 00 CH 87 (Hearing Board May 29, 2002).
Petitioner's Testimony and Related Evidence
Howard has been married for over 50 years. Howard got married while in college. He and his wife then attended college together. He worked before and during college,
as well as during his earlier years. Howard began working while in elementary school. Four of Howard's five children were born while he was college or law school. He was the sole support of the family at that time.
After graduating from college, Howard worked for a year before attending John Marshall Law School. While in law school, Howard worked, full-time, as a CTA bus driver. He graduated from law school in 1961, with honors.
Howard was licensed to practice law in 1962. He began a private practice with law school classmate Sam Adam. Later, Howard began practicing with Euclid Taylor, concentrating in criminal defense.
When Howard began practicing, written contracts were generally not used in criminal cases. Howard's criminal clients were charged a flat fee, paid upfront. There were fewer court buildings, and judges generally did not object if an attorney was late due to another court appearance. Consequently, Howard did not turn down a case because of a scheduling conflict.
Howard also never turned a case down because a client did not have enough money. He knew the difficulties faced by poor people. Howard testified that, when people came to him and needed help, he found a way to help them, regardless of their ability to pay.
Howard typically was in court all day every day. He took cases in states other than Illinois. Howard worked in his office in the evening and on Saturdays. He spent Sundays with his family and at church. Howard attended church every Sunday, taught Sunday school, and was a deacon.
Howard testified that, since he had had to work since he was a child, he just figured that he was kind of a Superman and could take tasks on and still get them done.
Howard testified that, due to his other commitments, he did not really have time to effectively pursue appeals. He assigned some appeals to other attorneys, as he became overwhelmed by them. He considered it part of his obligation to perfect an appeal in those cases in which his client had been convicted.
Howard had lectured nationally and at every law school in Chicago. He taught trial practice at the University of Chicago for several years. At the request of United States District Court Judge Marvin Aspen, who was an instructor at Northwestern University, Howard tried a case at Northwestern, in order to show students how to try a case.
Over objection by the Administrator, the hearing panel allowed Howard to introduce into evidence various documents concerning events in his life and his professional accomplishments. These documents included newspaper accounts of some of Howard's cases, certificates or letters of appreciation, and commendations.
Howard testified that he was first disciplined in the late 1980's, as a result of three or four appeals, which he had taken pro bono. He did not file briefs in those cases. Howard testified that he had assigned the cases to other lawyers in his office, but the briefs were not written. Ultimately, briefs were filed in those cases. Howard testified that, when the briefs were due, he was on an extended death penalty trial involving novel issues. During this period also, Howard's mother was very ill. Frequently, Howard drove to her home in Benton Harbor, Michigan, after finishing his day in court. Howard acknowledged his responsibility for those cases, but stated that the problem was due to these other responsibilities.
According to Howard, the misconduct that led to his 1999 discipline arose when he referred cases to other lawyers in his office while he was suspended. He described this as primarily providing advice to people who sought him out. Howard did not, at the time, consider
his conduct to be practicing law. One of those cases involved an incarcerated man whose family Howard had known for many years. Howard testified that he went to see the man, in jail, only as a friend and that he explained that he could not provide representation. He did, however, provide legal advice. Howard represented the man when his suspension was over. Howard testified that this discipline also involved a case in which he failed to complete an appeal.
In letters sent to his prospective character witnesses in this case, Howard described the Court's 1999 opinion as involving a finding that, by referring three cases to other attorneys while he was suspended, Howard unintentionally practiced law.
In connection with the case leading to his one year suspension UFO, Howard testified that he agreed to represent a man in Michigan, but the court kept returning his documents as he was not licensed in Michigan nor properly admitted pro hac vice. Howard testified that the Administrator's witness in that case, who was not Howard's client, testified falsely about the situation.
Howard testified that he had made restitution, by returning money people had paid him for attorney fees. Some of the money with which Howard did this was provided by Howard's family.
Howard testified that he recognized the nature and seriousness of his misconduct. According to Howard, the misconduct for which he was disciplined previously involved his failure to file documents within the proper time limits and did not involve any dishonesty. Howard denied ever having made misrepresentations or taken any money to which he was not entitled.
In deposition testimony, Howard stated that he disagreed with most of the findings in his prior disciplinary cases. At the hearing, he testified that it did not matter whether he disagreed with the findings in his prior disciplinary cases, as he had paid the price.
Since February 2000, Howard had worked, full-time, as the revenue director and comptroller for the Village of Dolton. He testified that he learned municipal and election law, so that he would know what was going on if issues came up at the Village. Howard denied practicing law.
Howard continued to speak, including at bar association functions. He continued to teach Sunday school and to do volunteer work through his church.
If reinstated, Howard intended to resume practicing law. He intended to continue to represent the downtrodden. He testified that he had learned not to take on tasks that he could not perform, but to refer such matters to other attorneys. He also did not have the family obligations he formerly had and, consequently, could practice law in a more relaxed manner. Howard expressed regret for his past misconduct and testified that he would not allow the same problems to occur in his practice if he were reinstated.
In early 2002, shortly after his 1999 suspension ended, Howard began representing Dr. Leotis Swopes. Howard testified he received a letter from the Supreme Court telling him that he had to await a further court order before resuming practice, as a further disciplinary charge was pending against him. Howard testified that he stopped representing Dr. Swopes immediately after receiving the Court's letter.
Howard had been sued by clients and by creditors. Not all of the suits were disclosed in Howard's reinstatement petition. He testified that he was unaware of some of the cases when they were filed. Howard had filed for bankruptcy; some of his debts were discharged
in the bankruptcy. Two former clients sued Howard in Indiana alleging legal malpractice. They obtained a default judgment for approximately $240,000. A certified mail receipt for service of process in that case was signed "Gloria Robinson." While that is the name of Howard's then-secretary, Howard testified that he had not been served in that case and that he would not recognize Robinson's writing. In a separate case, a judgment was entered against Howard for approximately $250,000.
Howard had written various checks that were returned for insufficient funds, most of which were eventually covered.
In connection with a loan application in February 2004, Howard represented that he was a lawyer and had practiced law since 1962. He was suspended at that time.
When Howard was suspended in 1999, his attorney prepared and mailed the notices to clients required by Supreme Court Rule 764 (134 Ill. 2d R. 764). Howard testified that his attorney also filed the documents needed to comply with Supreme Court Rule 764 when Howard was suspended in 2002. However, the attorney who had been representing Howard withdrew in 2001. When asked about this, Howard stated that he complied with Rule 764 by signing an affidavit that stated that he had not practiced law since 1999 and did not have any new clients. There was no evidence that Howard notified the Court of his representation of Swopes, whom he represented in 2002.
Retired Judge George N. Leighton had served as an Illinois circuit judge and appellate justice, as well as a federal district court judge. Howard appeared before Judge Leighton regularly to try cases, in state and federal court. Howard had also presented lectures to classes Judge Leighton taught at the John Marshall Law School.
Judge Leighton testified that the thing that most impressed people about Howard was his ability in the courtroom, as a polished examiner and a vigorous advocate. Judge Leighton described Howard as a person of integrity and professionalism.
Judge Leighton recommended that Howard be reinstated, given his professionalism and his contribution to the profession, through the high profile cases he had won and the important people he had represented.
Judge Michael P. Toomin, a sitting judge in the Circuit Court of Cook County, first met Howard when Judge Toomin was practicing law. Subsequently, Judge Toomin saw Howard frequently in court.
Judge Toomin described Howard's abilities as a lawyer as exceptional. He testified that Howard had a very outstanding reputation for character and integrity. Judge Toomin regarded Howard as a fine lawyer and testified that others shared that view. Judge Toomin enthusiastically recommended that Howard be reinstated.
William Shaw, Mayor of Dolton, Illinois, also testified for Howard. Shaw met Howard in 1958. They became close friends. Shaw hired Howard as revenue director for the City of Dolton, following Howard's suspension from the practice of law. Shaw knew of Howard's suspension, but it did not influence him in the hiring decision, as he knew Howard and knew his honesty and integrity. Shaw testified that Howard was doing a good job in that position.
Shaw attested to Howard's professional reputation and reputation for integrity and character. Shaw recommended that Howard be reinstated. In his view, Howard's services as a lawyer were being missed during his suspension.
Attorney Lorna Propes met Howard while she was an assistant State's Attorney, from 1975-80. She had also frequently observed Howard try cases when she was employed as a law clerk in the State's Attorney's office, doing so in order to learn from him. Propes had taught trial advocacy at virtually all of the Chicago area law schools and elsewhere in the country, including Harvard. Propes testified that, in her classes, she always used things she had learned from watching Howard as examples of how to question or cross-examine a witness. She testified: "I saw that man do (things) in court that …were artistic, brilliant, outstanding… things that I do and imitate this day when I try a case myself." Propes considered Howard "one of the most gifted lawyers" she had ever seen and noted that "everyone feels that way."
Propes testified that she had never heard anyone claim that Howard was dishonest in any way, nor say anything derogatory about him. She also testified that Howard was always civil, never cheated, never cut corners, and never tried to embarrass anyone. Propes testified that Howard was never condescending or arrogant and that he represented his clients with grace, dignity, and respect for the other side. In Propes's opinion, attorneys opposing Howard were, and would be, enriched by the experience. She recommended that he be reinstated.
Retired Cook County Circuit Judge Earl Strayhorn served for 24 years at the criminal court at 26th and California. During that time, he saw Howard very frequently, probably on a weekly basis. Judge Strayhorn knew many other people who knew Howard.
Judge Strayhorn described Howard's legal skills as exceptional and his integrity as impeccable. Judge Strayhorn considered Howard one of the best trial lawyers that had appeared before him. Judge Strayhorn testified that Howard was very professional and always prepared, with a complete knowledge of the law and the facts of his case. Judge Strayhorn never
heard any of the other judges say anything bad about Howard. He recommended that Howard be reinstated and considered Howard an asset to the community and to the legal profession.
Rev. Lacy Curry was pastor of Emanuel Baptist Church from 1973 to 2003. The congregation had over 3000 members and an elementary school. Howard and his family had been members of the congregation since 1975. They regularly attended church, were active in the community, and supported the church financially. Rev. Curry testified that Howard had taught Sunday school since 1976, working virtually every Sunday. Rev. Curry appointed Howard as a deacon in 1976. He had served as a deacon since then and consistently attended monthly deacons' meetings. Deacons assist in the administration of the church and serve as examples to young people. Howard participated in a church mission trip to South Africa, paying his own expenses. Howard's activities for the church were volunteer activities, for which he was not compensated. Howard's wife also did extensive volunteer work for the church.
Rev. Curry testified that Howard's character and integrity were exceptional and that Howard was an asset to the community. He recommended that Howard be reinstated.
Rev. Rogers Wayne Jackson became pastor of Emanuel Baptist Church in 2003. He taught at the church's school from 1983-90 and served as assistant pastor from 1999 - 2003. Rev. Jackson had known Howard since 1983 and saw him every week, typically more than once a week, in connection with church services and other church activities. Rev. Jackson requested that Howard be reinstated. He considered Howard to be a person of high character and of care and concern for people. Rev. Jackson testified that Howard visited the sick, took food to people in their homes, and generally did any type of service that Rev. Jackson asked of him. He considered Howard a great asset.
Sam Adam, a prominent criminal attorney, testified for Howard. Adam met Howard during law school. They had been friends ever since. Adam testified that, during law school, Howard worked 48 hours a week as a bus driver, attended class five days a week, was always prepared, and raised four children at the same time. Adam testified that he did not know of any lawyer better than Howard. Adam testified that Howard had more feeling for his clients than anyone Adam knew. Adam described Howard as phenomenal and an inspiration, a person who had a very, very high degree of dedication to the profession. Adam also testified that he had never heard even a rumor of any wrongdoing by Howard. According to Adam, no one questioned Howard's integrity. In Adam's opinion, Howard was never able to say no to a person who needed his help and probably got overly busy and neglected some business.
Adam asked that Howard be reinstated and testified that the profession needed Howard, as he was a person to look up to and always a gentleman. Adam testified that Howard took a lot of cases pro bono and did a lot of things for little or no money because he had feeling for other people.
There is no presumption in favor of reinstatement. In re Richman, 191 Ill. 2d 238, 248, 730 N.E.2d 45, 246 Ill. Dec. 365 (2000). The petitioner has the burden of proving, by clear and convincing evidence, that he or she should be reinstated. Richman, 191 Ill. 2d at 238, 730 N.E.2d 45, 246 Ill. Dec. 365.
Factual findings by the Hearing Board are reviewed under a manifest weight of the evidence standard. In re Martinez-Fraticelli, 221 Ill. 2d 255, 272, 850 N.E.2d 155, 302 Ill. Dec. 718 (2006). In particular, findings of the hearing panel that represent an evaluation of the witnesses' credibility and the petitioner's candor, forthrightness, and sincerity typically deserve
considerable weight. In re Berkley, 96 Ill. 2d 404, 411, 451 N.E.2d 848, 71 Ill. Dec. 694 (1983). In contrast, the Hearing Board's recommendation as to the ultimate disposition, while deserving serious consideration, is only advisory. Richman, 191 Ill. 2d at 247, 730 N.E.2d 45, 246 Ill. Dec. 365; see Martinez-Fraticelli, 221 Ill. 2d at 272, 281, 850 N.E.2d 155, 302 Ill. Dec. 718.
In evaluating a reinstatement case, the Review Board must consider the impact that an attorney's conduct has, or will have, on the legal profession, the public, and the administration of justice. In re Parker, 149 Ill. 2d 222, 595 N.E.2d 549, 554, 172 Ill. Dec. 188 (1992). Each case is unique and requires an independent evaluation of its circumstances. Parker, 149 Ill. 2d 222, 595 N.E.2d at 554, 172 Ill. Dec. 188. As in a disciplinary case, the objectives in a reinstatement case include safeguarding the public, maintaining the integrity of the legal profession, and protecting the administration of justice from reproach. Berkley, 96 Ill. 2d at 410-11, 451 N.E.2d 848, 71 Ill. Dec. 694.
The issues in a reinstatement case essentially involve the petitioner's rehabilitation, present good character, and current knowledge of the law. Supreme Court Rule 767(f) (210 Ill. 2d R. 767(f)). In re Parker, 149 Ill. 2d 222, 595 N.E.2d 549, 554, 172 Ill. Dec. 188 (1992). The following factors are among the things considered, as guidelines, in determining whether a petitioner has met his or her burden of proof in a reinstatement case:
the nature of the misconduct for which the petitioner was disciplined;
the maturity and experience of the petitioner when discipline was imposed;
whether the petitioner recognizes the nature and seriousness of the misconduct;
where applicable, whether the petitioner has made restitution;
the petitioner's conduct since discipline was imposed;
the petitioner's candor and forthrightness in presenting evidence in support of the petition.
Supreme Court Rule 767(f) (210 Ill. 2d R. 767(f); see Richman, 191 Ill. 2d at 244, 730 N.E.2d 45, 246 Ill. Dec. 365. No one of these factors is dispositive; instead, the most important factor is rehabilitation. In re Fleischman, 135 Ill. 2d 488, 496, 553 N.E.2d 352, 142 Ill. Dec. 838 (1990).
The Hearing Board thoroughly discussed the evidence and the reasons for its recommendation that Howard's reinstatement petition be denied. Some of these reasons involve factual issues as to which the Hearing Board's factual findings deserve deference, e.g., Howard's level of understanding of the nature and seriousness of the misconduct for which he was disciplined and the sincerity of his expressions of remorse. See Martinez-Fraticelli, 221 Ill. 2d at 276, 281, 850 N.E.2d 155, 302 Ill. Dec. 718; Fleischman, 135 Ill. 2d at 497, 553 N.E.2d 352, 142 Ill. Dec. 838. The nature and seriousness of the conduct for which the petitioner was disciplined is also a very significant factor. See Richman, 191 Ill. 2d 238, 730 N.E.2d 45, 246 Ill. Dec. 365. Given the circumstances of this case as a whole, we agree with the Hearing Board that reinstatement should be denied at this time.
Howard relies on various cases in which attorneys who had been disbarred following a criminal conviction were reinstated. E.g. Fleischman, 135 Ill. 2d 488, 553 N.E.2d 352, 142 Ill. Dec. 838; Parker, 149 Ill. 2d 222, 595 N.E.2d 549, 172 Ill. Dec. 188; In re McDonnell, 82 Ill. 2d 481, 413 N.E.2d 375, 45 Ill. Dec. 897 (1980). Howard contends that his past misconduct was not as serious as the criminal misconduct of the petitioners in those cases. However, these cases are not really analogous to Howard's situation.
Howard was disciplined for repeated instances of neglect. Misconduct involving neglect typically does not preclude reinstatement; however, the case still must be considered as a whole, including the extent to which the petitioner has demonstrated rehabilitation and the
likelihood that the public will be protected if the petitioner is reinstated. See In re Kloak, No. 95 CH 558 (Review Board May 9, 1997), approved and confirmed, No. M.R. 11575 (Sept. 24, 1997); In re Wellington, No. 05 RT 2001 (Hearing Board Jan. 4, 2006), approved and confirmed, No. M.R. 20054 (May 16, 2006).
As the Hearing Board observed, Howard has an unusually serious history of repeated misconduct and failure to learn from past mistakes. Howard's past misconduct is particularly significant precisely because he has been disciplined for, and repeated, the same type of misconduct multiple times. Howard was disciplined for misconduct involving neglect on four separate occasions before he was ultimately suspended UFO, twice, for similar misconduct. Howard continued to engage in the same type of misconduct even after the 1995 discipline, which included a lengthy period of probation, conditioned on Howard's participation in a law office management program.
The Hearing Board also expressed serious reservations over the extent to which Howard really understands what was wrong about his past conduct. In particular, the Hearing Board observed that Howard's statements regarding his prior misconduct reflected a lack of understanding of professional ethical rules and the opinions in his prior disciplinary cases. The Hearing Board noted that, in discussing the misconduct that led to his past discipline, Howard attempted to explain away his conduct or considered himself a victim. The Hearing Board also commented that Howard either mischaracterized or minimized the findings in his prior disciplinary cases and, on multiple occasions, failed disclose the fact that his prior discipline included instances of conversion and failure to return unearned fees. The Hearing Board concluded that Howard had not displayed any genuine remorse or sympathy for the clients harmed by his conduct. These observations are supported by the record.
The petitioner's view of the conduct for which he or she was disciplined is an important factor. While continuing assertions of innocence will not bar reinstatement, In re Wigoda, 77 Ill. 2d 154, 161, 395 N.E.2d 571, 32 Ill. Dec. 341 (1979), denial of reinstatement is warranted when the petitioner has failed to demonstrate, by clear and convincing evidence, that he or she understands the seriousness of his or her past misconduct. In re Gottlieb, 109 Ill. 2d 267, 486 N.E.2d 921, 93 Ill. Dec. 388 (1985). This is not a case in which the petitioner is simply continuing to assert his innocence in relation to a specific transaction or incident. Instead, as the Hearing Board concluded, Howard has not demonstrated a genuine understanding of what he did wrong and its seriousness. This factor raises serious questions as to whether the public would be truly served by Howard's reinstatement or would instead be placed at risk that he would engage in similar misconduct in the future.
The Hearing Board found that Howard presented limited evidence as to his current knowledge of the law. As the Administrator notes, Howard did not challenge this finding in his opening brief. However, this is only one of several factors to consider in assessing a reinstatement petition. See In re Silvern, 92 Ill. 2d 188, 194, 441 N.E.2d 64, 65 Ill. Dec. 272 (1982). This single factor can have less significance in a case, such as this one, involving a clearly skilled lawyer with lengthy legal experience. Silvern, 92 Ill. 2d at 194, 441 N.E.2d 64, 65 Ill. Dec. 272 (1982).
However, the Hearing Board focused on Howard's lack of familiarity with ethical rules, as opposed to his legal knowledge. Despite Howard's lengthy experience, this is a legitimate concern in this case.
Howard objects to the Hearing Board's conclusion that his maturity and experience at the time of discipline weighed against reinstatement. This factor alone would not
preclude reinstatement. Fleischman, 135 Ill. 2d at 497, 553 N.E.2d 352, 142 Ill. Dec. 838. A petitioner's maturity and experience is legitimately considered, however, in determining the extent to which he or she should have recognized the wrongfulness of the past misconduct. E.g. Martinez-Fraticelli, 221 Ill. 2d at 275, 850 N.E.2d 155, 302 Ill. Dec. 718; Richman, 191 Ill. 2d at 246, 730 N.E.2d 45, 246 Ill. Dec. 365; Alexander, 128 Ill. 2d at 535-36, 539 N.E.2d 1260, 132 Ill. Dec. 454.
Protection of the public is of paramount concern. Even where other factors support reinstatement, reinstatement is properly denied where there is serious doubt that the public will be served by reinstatement. See In re Wellington, No. 05 RT 2001 (Hearing Board Jan. 4, 2006), approved and confirmed, No. M.R. 20054 (May 16, 2006). Howard has a long-term pattern of neglect and related misconduct that persisted even after he was given an opportunity to correct the deficiencies in his practice during the probationary period imposed in the 1995 disciplinary case. Therefore, we are concerned that, if reinstated, he will repeat the same type of misconduct in the future.
This history also causes us to doubt that reinstatement on conditions would sufficiently protect the public. Compare In re Kloak, No. 95 CH 558 (Review Board May 9, 1997), approved and confirmed, No. M.R. 11575 (Sept. 24, 1997). Like Howard, Kloak had been suspended, UFO, as a result of multiple instances of neglect, following prior discipline for similar misconduct. While similar to this case, Kloak is distinguishable. Although Kloak had prior discipline, his prior disciplinary record was not as extensive as Howard's. Unlike Kloak, Howard has already been given an opportunity to correct his past problems through a period of probation and participation in a law office management program, yet repeated similar misconduct. Kloak demonstrated a genuine understanding of the problems that led to his past
misconduct and he had a plan in place for how to avoid similar problems in the future. In contrast, the Hearing Board found that Howard has not demonstrated any real understanding of the nature of his past misconduct. Howard also has not articulated any real plan for how to avoid future similar misconduct.2
As the Hearing Board observed, since his suspension UFO, Howard has been successfully employed by the Village of Dolton and performed extensive volunteer work for his church. The Hearing Board found that Howard did not act out of dishonest motives in connection with his various financial liabilities, delays in restitution, omissions on Howard's loan application, or omissions or misstatements in his petition for reinstatement. The Hearing Board considered Howard candid and forthright. We find no reason to disagree with these observations by the Hearing Board.
The evidence fully supports the Hearing Board's observation that Howard is an extremely gifted trial lawyer, who has made great contributions to the legal profession. The testimony of Howard's character witnesses, who include exceptionally talented and respected individuals, is uniquely impressive.
However, Howard was suspended until further order of the Court because he continued to engage in a pattern of serious misconduct that began over twenty years ago. This misconduct was not the result of either immaturity or inexperience. Howard clearly should have known better, particularly as he had been disciplined for the same type of misconduct, more than once, in the past. That disciplinary history and pattern of past misconduct are compounded by the fact that, as the Hearing Board found, Howard has failed to "acknowledge his wrongdoing with any convincing sincerity" and has mischaracterized the findings in his prior disciplinary cases. Because Howard still does not understand the nature and seriousness of his past
misconduct, he cannot realistically be expected to avoid similar misconduct in the future. Howard also has not demonstrated a current knowledge of the Rules of Professional Conduct. These factors combine to cause us to believe, as did the Hearing Board, that Howard poses a risk to future clients. Consequently, reinstatement should be denied.
For these reasons, we recommend that petitioner-appellant, George C. Howard, Jr., be denied reinstatement.
Date Entered: May 16, 2007
1The Seventh Circuit reinstated Howard, in January 1990.
2Howard stated only that, as his family obligations were lessened now that his children were adults, he could practice in a more relaxed manner. This is not a specific plan for how to avoid falling into the same pattern of past misconduct.
In re Howard, No. 05 RT 3006
I respectfully dissent from the majority's recommendation that reinstatement should be denied. I would recommend reinstatement, upon conditions.
The evidence demonstrated that Howard is an extraordinarily gifted attorney. His character witnesses include extremely well-respected lawyers and judges. Howard's character witnesses have known him for many years. They have observed his conduct in various aspects of his life. All attested to Howard's overall integrity. The testimony of Howard's character witnesses demonstrates that Howard is a person who would be a valuable member of the bar and a positive example to other attorneys, through his conduct in the courtroom and his professionalism and skill in trying cases. Howard's character witnesses also testified that Howard is a person concerned for others, whose errors resulted from taking on too many tasks, often in an effort to help others, rather than from any maliciousness or dishonest motives.
Howard has clearly engaged in misconduct. While that misconduct was certainly serious, it is in the past. Howard has been sanctioned for his misconduct. Based on the latest sanctions, Howard has been unable to practice law since 1999. This is a significant punishment, particularly for a person like Howard, who has demonstrated a very strong work ethic. He should not continue to be punished for that misconduct indefinitely by being denied reinstatement.
Howard has presented his best possible case for reinstatement. It is completely unclear what more he could do. Howard has admitted that he made mistakes in the past. While Howard may not have articulated a complete understanding of those mistakes, this failure is very akin to a continuing assertion of innocence, a factor that does not warrant denying reinstatement. In re Wigoda, 77 Ill. 2d 154, 161, 395 N.E.2d 571, 32 Ill. Dec. 341 (1979).
Given the realities of Howard's age, the difficulty of presenting a reinstatement case, and the length of time that he would have to wait before filing another reinstatement petition if reinstatement is denied now, it is highly unlikely that Howard would be reinstated in the future. Howard has unique talents as a criminal trial attorney and a demonstrated willingness to serve the community. The public would lose the benefit of Howard's talents and his commitment to service as an attorney if reinstatement is denied.
Howard has a long disciplinary history. While certainly serious, Howard's past misconduct should not forever preclude reinstatement. Multiple acts of neglect, even with more than one instance of prior discipline, typically do not warrant denying reinstatement. See In re Kloak, No. 95 CH 558 (Review Board May 9, 1997), approved and confirmed, No. M.R. 11575 (Sept. 24, 1997); In re Wellington, No. 05 RT 2001 (Hearing Board Jan. 4, 2006), approved and confirmed, No. M.R. 20054 (May 16, 2006).
In my opinion, the factors that caused the majority, and the Hearing Board, to recommend that reinstatement be denied can be adequately addressed by requiring Howard to comply with certain conditions for a set period of time. Such a disposition will serve the public, by giving the public the benefit of Howard's services and skills as an attorney, while protecting the public from any risk of future misconduct by Howard. This period will also give Howard the opportunity to put systems into place for avoiding similar misconduct in the future.
The attorney in In re Kloak, No. 95 CH 558 (Review Board May 9, 1997), approved and confirmed, No. M.R. 11575 (Sept. 24, 1997) was reinstated on conditions, after a suspension until further order of the Court (UFO). Kloak had been suspended UFO because, like Howard, he had neglected multiple cases after having been disciplined previously for similar misconduct. Kloak had also been found to have made misrepresentations to the ARDC, a factor
which is not present in Howard. Kloak presented favorable character testimony and evidence that he was a skilled criminal trial attorney. However, Kloak's proof did not rise to the same extraordinary level as Howard's.
Despite Kloak's failure to learn from his prior discipline he was reinstated, on conditions. If Kloak could be reinstated on conditions, Howard can, and should, also be given another chance. The fact that Howard fell into a similar pattern of misconduct after his 1995 discipline, while serious, should not forever bar reinstatement. Howard's subsequent discipline was quite significant and would have served to impress upon Howard the seriousness with which the disciplinary system views his misconduct.
I would recommend that Howard be reinstated and placed on probation for the first two years following his reinstatement, with his probation conditioned upon his compliance with the following requirements:
For a period of two (2) years, another, experienced attorney, acceptable to the Administrator, be appointed and serve as Howard's mentor.
During this mentoring period, Howard shall report to his mentor, at least once per week about Howard's practice of law. Howard and his mentor shall meet with a representative of the Administrator and work out a mentoring plan that will include, at a minimum, a report in writing to the Administrator at least once every three (3) months concerning Howard's practice of law.
The reports, to Howard's mentor and to the Administrator, shall include a report as to Howard's caseload, including the type of each case in which Howard is representing a client. If Howard is representing any person in an appeal, he must immediately advise the Administrator of that fact, of the case name and number, and the court in which the case is
pending or being filed. Howard must also provide the Administrator with a status of all deadlines in any such appeals and the status of his compliance with those deadlines.
Howard and his mentor shall report to the Administrator any violation of the Illinois Rules of Professional Conduct that Howard engages in during the mentoring period.
If at any time during the mentoring period, the mentor originally designated cannot fulfill his or her role as Howard's mentor, Howard shall immediately inform the Administrator and the Administrator shall appoint a successor mentor.
Howard shall enroll in and successfully complete a management practices seminar approved by the Administrator. Howard shall also enroll in and successfully complete a course in legal ethics approved by the Administrator. In addition, during the mentoring period and thereafter, Howard shall comply with the requirements of minimum continuing legal education (MCLE) under Supreme Court Rule 794.
I would recommend that Howard be reinstated, on probation for the first two (2) years following reinstatement, subject to the conditions outlined above.
Date Entered: May 16, 2007
Terrence V. O'Leary