Filed July 12, 2007

In re Benjamin Edward Harrison
Commission No. 06 CH 36

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) making a statement he knew was false or with reckless disregard as to its truth or falsity concerning the integrity of a judge and adjudicative officer; 2) engaging in conduct that is prejudicial to the administration of justice; and 3) engaging in conduct that tends to defeat the administration of justice or brought the courts or the legal profession into disrepute.

RULES DISCUSSED: Rules 8.2(a), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION: Censure.

DATE OF OPINION: July 12, 2007.

HEARING PANEL: Terrence M. Burns, Chair, Arlette G. Porter and Kenneth A. Peters.

RESPONDENT'S COUNSEL: Pro se.

ADMINISTRATOR'S COUNSEL: Christine P. Anderson.

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

In the Matter of:

BENJAMIN EDWARD HARRISON,

Attorney-Respondent,

No. 6231531.

Commission No. 06 CH 36

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on March 6, 2007, at the Chicago, Illinois offices of the Attorney Registration and Disciplinary Commission ("ARDC") before the Panel of Terrence M. Burns, Chair, Arlette G. Porter and Kenneth A. Peters. Christine P. Anderson represented the Administrator of the ARDC. Respondent appeared in person and represented himself.

THE PLEADINGS

On June 8, 2006, the Administrator filed a one-count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleged Respondent included unfounded accusations about the circuit court and the Cook County State's Attorney's Office in a motion, and was held in contempt of court after making a statement in open court. Respondent filed an Answer to the Complaint denying all the factual allegations and allegations of misconduct.

THE EVIDENCE

The Administrator presented the testimony of two witnesses, including Respondent, and tendered exhibits 1 through 6, which were admitted. Respondent testified on his own behalf and presented no other evidence.

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Judge John J. Fleming

Judge John J. Fleming has been a Cook County Circuit Court Judge since December, 1996. He has been assigned to the criminal division since 2001. (Tr. 17-21). In 2003, Judge Fleming was assigned the case of People v. Pedro Rey. Respondent represented the defendant in that case. (Tr. 21-22). On October 28, 2003, Respondent filed a motion entitled "Motion to Advance, Appearance, Notice of Motion and Motion for Extension." (Tr. 22-24; Adm. Ex. 1). The motion was not on the call, so Judge Fleming continued it to the trial date of November 3, 2003. (Tr. 25-26).

On November 3, 2003, Judge Fleming allowed Respondent to substitute his appearance and continued the trial to January 12, 2004. He also informed Respondent the trial would not be continued again. (Tr. 27-28). Respondent stated he needed more time to prepare for the trial, but Judge Fleming told him the case was a year old and if he wanted to represent the defendant, he would have to be ready for trial on January 12, 2004. (Tr. 28).

On January 12, 2004, an investigator hired by Respondent presented a motion to continue the trial, explaining that Respondent was involved in another trial. (Tr. 28-29; Adm. Ex. 2). Judge Fleming continued the matter to January 21, 2004, for hearing on the motion. (Tr. 29, 32-33). Judge Fleming testified the motion was unusual because it alleged that he and the State's Attorney's office were involved in a conspiracy. Specifically, Respondent asserted in his motion the charges against his client "may also necessitate criminal charges for obstruction of justice, malicious prosecution, and/or prosecutorial misconduct as well as conspiracy to do same by the Circuit Court of Cook County, Criminal Division, located at 2600 S. California, in Chicago, IL, in room 102." (Adm. Ex. 2 at par. 19). Respondent also referred to the proceedings as a "criminal court fiasco" and signed the motion, "Indignantly Submitted." Judge Fleming denied being involved in a conspiracy. (Tr. 30-31; Adm. Ex. 2).

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On January 21, 2004, Judge Fleming held a hearing on Respondent's motion. Respondent, the defendant and the Assistant State's Attorney appeared before Judge Fleming. Respondent filed an amended motion to continue the trial date. (Tr. 34; Adm. Ex. 3). In the amended motion, Respondent made a "back-handed apology" for calling the proceedings a "fiasco" and signed the motion, "Respectfully Submitted." The allegations regarding the conspiracy, obstruction of justice and malicious prosecution remained in the amended complaint. (Tr. 34-36; Adm. Ex. 3). Respondent argued the case against his client was complex and he would not be ready for trial until September, 2004. Judge Fleming set the trial for March, 2004, five months after Respondent filed his appearance. Respondent began raising his voice, raised the motion over his head and in an agitated and loud tone, said he would "jam these pleadings down the throat of the record as much as I feel I need to." Judge Fleming held Respondent in direct contempt of court and directed the sheriff's deputy to take him to the lockup. (Tr. 36-38, 41-42; Adm. Exs. 4, 6). Judge Fleming recessed the courtroom to restore calm. The courtroom was full and Respondent's outburst startled those who were present. The recess delayed proceedings in the other cases on the call and brought disrespect on the court. (Tr. 42-44) Judge Fleming felt Respondent's comments were a personal attack. (Tr. 46).

Approximately one hour later, Judge Fleming had Respondent returned to court and asked him if he had anything to say. Respondent apologized and Judge Fleming purged the contempt and dismissed the contempt proceedings. (Tr. 39-40, 45-46, 53-54; Adm. Ex. 4). The trial was set for April 6, 2004. (Tr.40). On March 24, 2004, Respondent filed a motion to withdraw from the case. (Tr. 43; Adm. Ex. 5).

Respondent

Respondent was admitted to practice law in Illinois in 1996. He is a sole practitioner with a general practice. (Tr. 61-62). Respondent drafted the motions that were filed in the Rey

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case. (Tr. 62-63; Adm. Exs. 1, 2, 3, 5). He did not file the motion to delay the proceedings. (Tr. 64-65). Respondent characterized his conduct as an overreaction to a perceived injustice to his client. (Tr. 66, 69). He admitted he could have used less offensive language. (Tr. 66). Respondent had no information to support the allegations contained in his motions. (Tr. 71). Respondent characterized his statements as allusions to areas that needed further investigation. (Tr. 73). On the day Respondent was held in contempt, Respondent described Judge Fleming as having taken offense to the motion. Respondent testified he is a demonstrative person, and raising the motion over his head might have been his normal way of verbalizing and although he might have been agitated, he has a naturally loud voice and was not yelling. (Tr. 75-77). He attributed his conduct, in part, to his lack of experience in the criminal courts and his frustration with the case. (Tr. 65, 69).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). "Clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence." Cleary and Graham, Handbook of Illinois Evidence, 301.6 (6th ed. 1994). This standard of proof is one in which the risk of error is not equally allocated; rather, this standard requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66, 102 S. Ct. 1388 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Rev. Bd. Dec. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).

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Based on the evidence and testimony presented at the hearing, in the instant case, we conclude the Administrator has proven by clear and convincing evidence the Respondent engaged in the misconduct alleged in the Complaint. Specifically, we conclude Respondent: 1) made a statement he knew was false or with reckless disregard as to its truth or falsity concerning the integrity of a judge and adjudicative officer; 2) engaged in conduct that is prejudicial to the administration of justice; and 3) engaged in conduct that tends to defeat the administration of justice or brought the courts or the legal profession into disrepute in violation of Rules 8.2(a), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

It is undisputed Respondent prepared and filed two motions in the circuit court containing false and unfounded statements, which disparaged the circuit court judge and the Assistant State's Attorney. In the motion filed on January 12, 2004, Respondent stated the charges against his client "may also necessitate criminal charges for obstruction of justice, malicious prosecution, and/or prosecutorial misconduct as well as conspiracy to do same by the Circuit Court of Cook County, Criminal Division, located at 2600 S. California, in Chicago, IL, in room 102." In the same motion, Respondent referred to the proceedings as a "criminal court fiasco" and signed the motion, "Indignantly Submitted." In the second motion filed on January 21, 2004, Respondent deleted the phrase "criminal court fiasco" and signed the motion, "Respectfully Submitted," but reiterated the statements regarding the necessity for criminal charges and the conspiracy.

Respondent's statements were false and had no reasonable basis in fact. Respondent admitted when he made the allegations in the motions, he had no basis for doing so. He characterized his statements as "allusions" to areas that needed further investigation. Regardless of how Respondent characterizes his statements, it is clear he had absolutely no factual basis for

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making them, and without such a basis, he made them with reckless disregard for the truth. As an officer of the court, an attorney cannot make unfounded allegations that the court and the Assistant State's Attorney were involved in a conspiracy warranting criminal charges for obstruction of justice and malicious prosecution. To do so, without any reasonable basis, is misconduct. Further, Respondent's statements the proceedings were a "fiasco" and signing the motion "Indignantly Submitted" were improper.

Respondent also engaged in misconduct when he made a verbal statement in court on January 21, 2004. On that date, Respondent presented an amended motion to continue the trial. Judge Fleming wanted to schedule the trial for March. Respondent felt he needed more time to prepare. He began raising his voice, held the motion over his head and in an agitated and loud tone said he would, "jam these pleadings down the throat of the record as much as I feel I need to." Judge Fleming held Respondent in direct contempt of court. Our findings of misconduct are based on Respondent's statements, and behavior in court, and not because he was held in contempt.

It well-established an attorney shall not use insulting or derogatory language toward judges.

Judges are not exempt from just criticism, and whenever there is proper ground for serious complaint against a judge, it is the right and duty of a lawyer to submit his grievances to the proper authorities, but the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language, and offensive conduct toward judges personally by attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted.

People v. Metzen, 291 Ill. 55, 58, 125 N.E. 734 (1920). Accordingly, we find the Administrator proved all of the alleged misconduct.

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Respondent argued his actions are protected by his first amendment rights. However, Respondent fails to support this argument with legal authority. The Administrator, on the other hand, argued Respondent's statements were not protected by the first amendment and provided persuasive authority. See Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209 (1964); In the Matter of Palmisano, 70 F.3d 483 (7th Cir. 1995); In re Jafree, 93 Ill. 2d 450, 444 N.E.2d 143 (1983); In re Palmisano, 92 CH 109, M.R. 10116 (May 19, 1994); In re Betts, 90 SH 49, M.R. 9296 (September 27, 1993).

Based on these cases, we find Respondent's statements were not protected by the first amendment.

[W]hile the state and federal constitutions protect the freedom of speech and right to petition for redress of grievances, [citation omitted] people are responsible for abusing the liberty to speak, write, and publish statements made with actual malice, i.e. knowledge that the statement is false or reckless disregard for its truth and falsity.

In re Palmisano, 92 CH 109 (Rev. Bd. Dec. at 3). See also, In the Matter of Palmisano, 70 F.3d 483 (in a reciprocal discipline matter in federal court which also rejected Palmisano's claim of first amendment protections for false and baseless statements against judges). Here, Respondent made false statements about a judge with reckless disregard for the truth. Accordingly, his statements are not protected by the first amendment.

RECOMMENDATION

The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). "The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system." In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent

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or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). In determining the appropriate sanction for an attorney's misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986).

The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during that attorney's disciplinary proceedings. Gorecki, 208 Ill. 2d at 360-61. In the instant case, there was one aggravating and one mitigating factor.

Respondent aggravated his misconduct by failing to recognize the seriousness of his misconduct or express remorse for his actions. Failing to recognize the seriousness of misconduct and a lack of remorse are aggravating factors that must be considered when determining the appropriate sanction. In re Lewis, 138 Ill. 2d 310, 562 N.E. 2d 198 (1990). Respondent has failed to acknowledge the seriousness of his misconduct. Respondent half-heartedly testified that he could have used less offensive language, but his statement did little to convince us that he truly understood the seriousness of his misconduct.

Respondent's misconduct is mitigated by the fact he has not been disciplined previously. We also believe this was an isolated incidentt. See In re Demuth, 126 Ill. 2d 1, 14, 533 N.E.2d 867 (1988).

Based on Respondent's misconduct and aggravating factors, the Administrator recommended Respondent receive a censure. In support of her request, the Administrator relied upon the following relevant cases, In re Barringer, 00 SH 80, M.R. 17621 (September 21, 2001); In re Gerstein, 91 SH 354, M.R. 7626 (September 26, 1991). Respondent argued either the charges should be dismissed or he should receive a reprimand.

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After reviewing the case law, we recommend Respondent be censured. In making this recommendation, we rely on the cases cited by the Administrator. In Barringer, the attorney filed a motion to substitute a judge which contained false statements about the judge's personal financial circumstances, an ex parte contact and holding his client in contempt. In ruling on the motion, the judge found Barringer's statements completely unfounded and made for the purpose of delay, and ordered him to pay the opposing counsel's attorney's fees. Barringer was censured. In Gerstein, the attorney sent a letter to opposing counsel containing obscene, offensive and vulgar language. In mitigation, Gerstein sent the attorney a letter of apology. Gerstein received a censure. See also, In re Garza, 86 CH 21, M.R. 4206 (April 3, 1987) (prosecuting attorney censured for making improper comments about the defendant's expert witness).

We find the instant case is sufficiently similar to the Barringer, Gerstein and Garza cases to warrant a similar sanction. Here, Respondent made false statements in two motions and acted inappropriately in court. We believe Respondent has learned his lesson and we do not believe he is likely to engage in similar misconduct in the future.

Therefore, in light of Respondent's misconduct, and considering the aggravating and mitigating factors, we recommend Respondent be censured.

Date Entered: July 12, 2007

Terrence M. Burns, Chair, Arlette G. Porter and Kenneth A. Peters, Hearing Panel Members.