Filed February 20, 2008
In re Dennis Charles Segovia
Commission No. 06 CH 86
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 involving dishonesty, fraud, deceit or misrepresentation; 3) engaging in conduct that is prejudicial to the administration of justice; and 4) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: Rule 8.4(a)(3), 8.4(a)(4), 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
RECOMMENDATION: Two-year Suspension with conditions.
DATE OF OPINION: February 20, 2008.
HEARING PANEL: James B. Pritikin, Chair, Roxanna M. Hipple and Eddie Sanders, Jr.
RESPONDENT'S COUNSEL: Lewis Myers, Jr.
ADMINISTRATOR'S COUNSEL: Cass Buscher.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
DENNIS CHARLES SEGOVIA,
Commission No. 06 CH 86
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on October 15, 2007, at the Chicago offices of the Attorney Registration and Disciplinary Commission, before a Hearing Board Panel consisting of James B. Pritikin, Chair, Roxanna M. Hipple, lawyer member, and Eddie Sanders, Jr., public member. The Administrator was represented by Cass Buscher. Respondent appeared in person and was represented by Lewis Myers, Jr.
On December 6, 2006, the Administrator filed a two-count complaint against Respondent pursuant to Supreme Court Rule 753(b). Counts I and II both charge Respondent with committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness and fitness to practice law. Respondent filed his Answer to the Complaint on May 9, 2007. Respondent admitted to the facts and misconduct alleged in the complaint.
The Administrator presented the testimony of Dr. Stafford C. Henry. The Administrator submitted three documentary exhibits. Respondent presented the testimony of Bohumila Segovia.
Evidence Common to all Counts
Ritalin is a controlled substance that cannot be obtained without a prescription issued by an appropriate medical professional. Respondent knew that to acquire Ritalin, he needed a prescription from an appropriate medical professional.
720 ILCS 570/406(b) provides, in part:
It is unlawful for any person knowingly to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.
720 ILCS 5/17-3(a)(2) provides, in part:
A person commits forgery when, with intent to defraud, he knowingly makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by the authority or one who did not give such authority.
720 ILCS 5/8-4(a) provides, in part:
A person commits an attempt when, with the intent to commit a specific offense, he does act, which constitutes a substantial step toward the commission of that offense.
On October 8, 2004, Respondent gained access to the prescription pad belonging to his mother, Dr. Bohumila Segovia, an Illinois licensed physician. Respondent wrote a prescription for himself for Ritalin and affixed his mother's name to the prescription. Respondent entered a Walgreen's pharmacy in Downers Grove, Illinois. He presented to Richard Triebes ("Triebes"), an employee of Walgreen's, a prescription prepared by Respondent for 20mg of Ritalin. Triebes did not fill the prescription and informed Respondent that he was contacting the police. Respondent fled the Walgreen's leaving his driver's license behind. (Adm. Ex. 2).
On April 22, 2005, Respondent gained access to a blank prescription sheet belonging to Dr. Mike Zangan, an Illinois licensed physician. Respondent wrote a prescription for himself for 20 mg of Ritalin and affixed Dr. Zangan's name to the prescription. Respondent entered a K-Mart located in Elmhurst, Illinois. He presented the prescription to Patricia Falduto ("Falduto"), an employee of K-Mart. (Adm. Ex. 3).
Falduto questioned the validity of the prescription and contacted Dr. Zangan, who confirmed that he had not written the prescription. In response, Falduto contacted the Elmhurst Police Department. Elmhurst Police Department Detective Coughlin arrived and questioned Respondent regarding his prescription. Respondent admitted that the prescription was false and that he obtained a blank prescription some time before. Detective Coughlin placed Respondent under arrest and began a search of Respondent's vehicle. During the search, Detective Coughlin located cannabis and a pipe used for the smoking of cannabis in Respondent's car. (Adm. Ex. 3).
At this time, 720 ILCS 550/4(b) provided, in part, that it is unlawful for any person to knowingly possess cannabis. Also, at this time, 720 ILCS 600/3.5(a) provided, in part, that it is unlawful for any person to knowingly possess an item of drug paraphernalia with the intent to use it. (Adm. Ex. 3).
Status of Criminal Cases
As a result of the incidents described in Counts I and II, discussed above, the DuPage County States' Attorneys Office filed felony charges against Respondent for forgery and attempted unlawful acquisition of a controlled substance. Case No. 04 CF 3011 (Count I) and Case No. 05 CF 1193 (Count II), which remain pending pursuant to a guilty plea and entry into a deferral program pursuant to agreed orders entered on May 25, 2006. Respondent was placed in
the MICAP program by the DuPage County Circuit Court, a mental health program, for twenty-four months, pursuant to the agreed order for the deferral program entered in those cases. Respondent is required to comply with the conditions in the pending cases by May 25, 2008 for the charges to be dismissed. Otherwise, if Respondent does not comply, then he will be removed from the deferral program and the charges will be reinstated. (Adm. Ex. 2, 3; Tr. 86-87).
Dr. Stafford C. Henry
Dr. Stafford C. Henry ("Dr. Henry") is an expert in the field of forensic psychiatry. Respondent was referred to Dr. Henry by the ARDC. Dr. Henry met twice with Respondent in August 2005. Respondent failed to appear for an evaluation in August 2007 because Respondent was admitted to the hospital for medical issues on the scheduled date. Subsequently, Dr. Henry saw Respondent on September 25, 2007. However, Dr. Henry did not complete the September 2007 evaluation because he did not receive information that he requested from Respondent. Dr. Henry stated that he wanted to speak with Respondent's psychiatrist, Dr. Fay Velasco; his primary care physician; and his case manager through the DuPage Probation Department, Miss Salvador. Dr. Henry needed Respondent to execute a release so Dr. Henry could speak to the doctors and case manager, which had not been provided. (Adm. Ex. 1, p. 15-18; Tr. 19-23).
Dr. Henry testified to the information involved in his August 2005 evaluation of Respondent. Dr. Henry reviewed Respondent's Elmhurst hospitalization records, handwritten notes and documents pertaining to Respondent's criminal case. Dr. Henry also conducted two face-to-face evaluations with Respondent. Dr. Henry reduced his impressions and recommendations into a report. Regarding his incomplete 2007 evaluation, Dr. Henry reviewed Dr. Velasco's records and conducted one face-to-face evaluation with Respondent. (Adm. Ex. 1; Tr. 24-25).
Dr. Henry stated that Respondent suffers from a plethora of health issues. Dr. Henry stated that Respondent suffers from bipolar disorder1 attention-deficit disorder, personality disorder and a number of poly-substance abuse and dependence issues. Dr. Henry also stated that Respondent suffers from sleep apnea, morbid obesity, hypertension and diabetes. (Tr. 26, 56).
Dr. Henry opined that Respondent's misconduct alleged in Count I was a very deliberate and conscious attempt to preserve and enhance an elevated mood state. At that time, Respondent was suffering active symptoms of bipolar disorder. Dr. Henry opined that Respondent's misconduct alleged in Count II was a very goal-directed and organized attempt to sabotage his career. Dr. Henry opined that Respondent's bipolar disorder, specifically the depressive phase, was very much linked and very much mitigated the behavior that is alleged in Count II. (Tr. 27-29, 54-55).
Regarding the treatment of Respondent's bipolar disorder, Dr. Henry stated that beginning in 2004, Respondent was been in treatment with a psychiatrist, Dr. Fay Velasco, M.D. Respondent's formal diagnosis of bipolar disorder was made at that time. Respondent began to experience depressive-like symptoms in March 2005. Respondent was still seeing Dr. Velasco at that time. Dr. Henry opined that Respondent has deliberately withheld and/or distorted certain disclosures to Dr. Velasco because Respondent told Dr. Henry that Dr. Velasco was a friend and colleague of his mother. Dr. Henry stated that Respondent has not given Dr. Velasco an accurate description of his alcohol use which was a problem because Respondent has a history of misusing medication with a propensity for abuse and Respondent has a history of heavy alcohol use in the past. In addition, Respondent is on prescribed psychotropic medication which alcohol can interfere with the therapeutic effects. Dr. Henry stated that Respondent has a history of
abusing opiates. Dr. Henry stated that Respondent failed to tell Dr. Velasco that he was taking opiates in response to gallbladder attacks. Dr. Henry stated that Respondent received a prescription for the opiates from his mother, Dr. Bohumila Segovia. (Tr. 30-33, 46-47).
Dr. Henry stated that he is aware of times when Respondent stopped taking his medication for his bipolar disorder. Dr. Henry stated that Respondent did tell Dr. Velasco that he stopped taking his medication. Dr. Henry stated several concerns he has regarding Respondent's conduct when he goes into the manic phases of bipolar disorder if Respondent goes off his medication. Dr. Henry stated that in general, a person's judgment is profoundly impaired. Respondent admitted to Dr. Henry that when he is manic, he is not appropriate to practice law. In the past, Respondent has become psychotic; experiencing thoughts and behavior which were not reality based. (Tr. 34-35).
Dr. Henry stated that there are certain safeguards which should be in place to decrease Respondent's risk of becoming acutely symptomatic and increase the likelihood that he would be able to consistently adhere to the Rules of Professional Conduct. First, Dr. Henry opined that Respondent should abstain from alcohol and only take those medications which are explicitly prescribed by his physicians. Second, given Respondent's substance abuse history, Dr. Henry opined that Respondent will need to be in a treatment facility which familiarizes him with recover principles and will assist him in engaging in the recovery community. Dr. Henry stated that treatment can be either intensive outpatient or residential. Third, Dr, Henry opined that it would be in Respondent's best interest to seek psychiatric treatment with a treater other than Dr. Velasco. Fourth, Dr. Henry opined that Respondent would need to engage in psychotherapy. Fifth, Dr. Henry opined that after Respondent completes an appropriate level of chemical
dependency treatment, Respondent would need to participate in Aftercare2for at least one year. Respondent would also need to be involved in Caduceus3.Tr. 35-38).
Further, Dr. Henry opined that Respondent would need to be urine monitored and would need to regularly go to Twelve Step meetings because Respondent does not have an appreciation of the fact that he is chemically dependent. Dr. Henry also recommended that Respondent undergo a sleep study. Finally, Dr. Henry opined that Respondent receive close medical monitoring. Dr. Henry recommended that Respondent be placed on probation by the Commission for at least two years. (Tr. 39-41).
In general, Dr. Henry stated that the appropriate treatment of mental illness needs to be individually tailored to the patient. Dr. Henry opined that a mental patient needs to be continually assessed in a number of different spheres: occupationally, personally and medically. (Tr. 57-58).
Regarding Respondent's current employment status, Dr. Henry stated that Respondent's practice is primarily transactional. Respondent represents one corporate client, Bobchiq Management Services. Respondent has also completed some commercial litigation and bankruptcy work. Dr. Henry stated that Respondent did not describe any trial work in which he was involved. Dr. Henry stated that Respondent told him that Respondent does go to court but Dr. Henry was under the impression that Respondent's work was transactional. Respondent told Dr. Henry that he has a very small law practice out of his home which he shares with his mother. (Tr. 76-78).
Dr. Bohumila Segovia
Dr. Bohumila Segovia is Respondent's mother. Dr. Segovia has been a practicing physician for 37 years. Dr. Segovia specializes in family practices. Dr. Segovia stated that
Respondent had a gallbladder problem in 2007. Dr. Segovia took Respondent to the emergency room. Contrary to Dr. Henry's testimony, Dr. Segovia stated that she has never written any prescriptions for Respondent. (Tr. 89-91).
Dr. Segovia stated that she knows Dr. Fay Velasco. Dr. Segovia stated that she does not have a professional or personal relationship with Dr. Velasco. Respondent was referred to Dr. Velasco through a physician at Elmhurst Hospital. Dr. Segovia said she has only communicated with Dr. Velasco on one occasion. Dr. Segovia stated that Respondent currently lives in her home. Dr. Segovia stated that she would not treat Respondent's psychiatric issues. (Tr. 92-94, 97).
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).
Having considered the two-count Complaint, the Answer wherein Respondent admitted to all allegations charged in the Complaint, the testimony stated by the witnesses, and the evidence submitted by the Administrator and admitted at the hearing, we find by clear and convincing evidence that Respondent engaged in the acts alleged and committed the following misconduct as charged in the Complaint:
Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, by violating 720 ILCS 5/17-3(a)(2), Forgery;
Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of
Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, by violating 720 ILCS 5/8-4(a), Attempted Unlawful Acquisition of a Controlled Substance;
Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, by violating 720 ILCS 550/4(b), Unlawful Possession on Cannabis;
Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, by violating 720 ILCS 630/3.5(a), Unlawful Possession of Drug Paraphernalia;
Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;
Engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and
Engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. In re Howard, 188 Ill. 2d 423, 434, 721 N.E.2d 1126 (1999). The objective of a disciplinary inquiry is not punishment. Instead, the purpose is to determine whether an individual should be permitted to engage in the practice of law. In re Smith , 168 Ill. 2d 269, 295, 659 N.E.2d 896 (1995). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991).
The Administrator has recommended that the Respondent be suspended from the practice of law for two years and until further order of the court. The Administrator also recommended that Respondent's suspension be stayed after the first six months with a period of probation of at
least two years. In the alternative, the Administrator recommended a two-year suspension and until further order of the court. In support of the recommendation for suspension with probation, the Administrator offered the following cases: In re Cirignani (on consent, attorney suspended from the practice of law for two years, with the suspension stayed after first six months by probation with conditions. Attorney forged the name of physician on prescription blanks on twenty-five occasions, presented the false prescriptions to a pharmacist who filled the order and submitted the cost to attorney's insurance provider) and In re Goeken (on consent, attorney suspended from the practice of law for two years, with the suspension stayed after first six months by probation with conditions. On two occasions, attorney forged the name of her treating physician on prescription forms. In mitigation, attorney offered evidence of depression issues.).
While each case is unique, we find the following cases instructive:
The attorney in In re Lunardi, 127 Ill. 2d 413, 537 N.E.2d 767 (1989) was convicted of unlawful possession of a controlled substance. The ARDC charged the attorney with committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer. Regarding the attorney's criminal activity, the Court stated, "An attorney must be held to a higher standard of conduct with respect to upholding the law." 127 Ill. 2d 422. In addition, the attorney was charged with loaning money to a judge. The testimony adduced at hearing showed that the attorney was addicted to cocaine. In mitigation, the evidence showed that the attorney had zealously pursued all efforts to rehabilitate himself. Further, the attorney offered testimony from nine character witnesses as well as the stipulated testimony of five character witnesses regarding his good reputation for truth and veracity. The Supreme Court
strongly considered the significant mitigating evidence as well as the egregious misconduct. The attorney was suspended from the practice of law for eighteen months.
In In re Economy, 97 CH 25, M.R. 17665 (November 28, 2001), the attorney pled guilty to two counts of aggravated battery, criminal damage to property and unlawful possession of a controlled substance. The attorney was diagnosed with alcohol and cocaine dependence, major depression and narcissistic personality disorder. The attorney was actively seeking treatment for his depression with psychotherapy and medication. The Hearing Board considered the attorney's misconduct along with mitigating and aggravating evidence. In mitigation, the attorney admitted his guilt, expressed remorse for his conduct, and fully cooperated with the Administrator during his proceeding. Several character witnesses testified as to his honesty, good reputation, excellent legal abilities, and commitment to recovery. He also volunteered his time to community and church organizations. In aggravation, the attorney was a former assistant state's attorney and certainly knew that buying, possessing, and using drugs was illegal. In addition, the attorney had a prior criminal conviction for a similar offense and a prior disciplinary record. The Hearing Board recommended, and the Supreme Court approved, that the attorney be suspended for five years and until further order of the court. The suspension was stayed by a three-year period of conditional probation. The conditions ordered were recommended by the Administrator as well as the attorney's psychological treaters.
We also consider evidence in mitigation and aggravation. In mitigation, Respondent has not been previously disciplined. The evidence shows, by testimony offered by the Administrator's witness, that Respondent suffers from bipolar disorder, attention-deficit disorder, personality disorder and a number of poly-substance abuse and dependence issues. Respondent also suffers from sleep apnea, morbid obesity, hypertension and diabetes. In aggravation, we
are troubled by Respondent's failure to authorize Dr. Henry to speak with Respondent's psychiatrist, primary care physician and probation case manager. We also find Respondent's failure to offer character witness testimony as well as employment documentation evidence in aggravation. We note that while Respondent is not required to testify, the Hearing Panel would have appreciated hearing Respondent's testimony regarding several issues, i.e. his employment status and functions, his rehabilitation strategies, and his explanation for failing to comply with Dr. Henry's requests. In addition, although Respondent is presently enrolled in a deferral program for two felonies where he pled guilty, we note that the successful completion of that program is scheduled to occur after the conclusion of these proceedings and that the failure of Respondent to comply would result in the reinstatement of those felony convictions.
Given the absence of Respondent's testimony and Dr. Henry's incomplete 2007 evaluation, the Panel finds itself in a difficult position regarding the recommendation of an appropriate sanction. Upon consideration of Dr. Henry's limited recommendation, relevant caselaw and mitigating and aggravating factors, we recommend that Respondent be suspended from the practice of law for two years. During the suspension, we recommend that Respondent be ordered to comply with the following conditions:
Respondent shall attend meetings scheduled by the Commission probation officer as requested by the Administrator. Respondent shall submit quarterly written reports to the Administrator concerning the nature and extent of his compliance with the conditions of probation;
Respondent shall notify the Administrator within fourteen (14) days of any change of address;
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;
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;
Respondent shall completely abstain from the usage of alcohol and any unprescribed controlled substances;
Respondent shall comply with all treatment recommendations of the mental health professional, including the taking of medications as prescribed;
Respondent shall seek psychiatric treatment with a treater other than Dr. Velasco;
Respondent shall provide to the mental health professional an appropriate release as required under the Confidentiality Act of the Mental Health Code, 740 ILCS 110/1 et seq., authorizing the treating professional to: (i) 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; (ii) promptly report to the Administrator respondent's failure to comply with any part of any established treatment plan; and (iii) respond to any inquiries of the Administrator regarding respondent's mental or emotional state or compliance with any established treatment plans;
Respondent shall notify the Administrator within fourteen (14) days of any change in treating mental health professionals;
Respondent shall, upon request by the Administrator, submit to random substance testing by a mental health professional or facility approved by the Administrator, within eight (8) hours of receiving notice by the Administrator that he shall submit to the testing. The results of the tests shall be reported to the Administrator. Respondent shall pay any and all costs of such testing;
Respondent shall be in a treatment facility which familiarizes him with recovery principles and assist him in engaging in the recovery community. The treatment can be either intensive outpatient or residential as determined by Respondent's treating psychiatrist;
Respondent shall engage in psychotherapy;
After Respondent completes an appropriate level of chemical dependency treatment, Respondent shall participate in Aftercare for at least one year;
Respondent shall undergo a sleep study; and
Respondent shall obtain a primary care physician acceptable to the Administrator. Respondent shall inform this physician of his addiction history. This physician shall be the only physician prescribing medication to respondent, other than respondent's treating psychiatrist.
Date Entered: February 20, 2008
|James B. Pritikin, Chair, with Roxanna M. Hipple and Eddie Sanders, Jr., concurring.|