Filed December 28, 2006
In re Lisa M. Pennock
Commission No. 06 SH 06
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; 2) inducing another to engage in conduct which the lawyer knows will violate the rules of professional conduct; 3) committing criminal acts that reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 4) failing to notify the Administrator of the Respondent's convictions; 5) engaging in conduct that is prejudicial to the administration of justice; and 6) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute
RULES DISCUSSED: Rules 8.4(a)(2), (a)(3), (a)(4), and (a) (5) of the Illinois Rules of Professional Conduct; and Supreme Court Rules 761 and 770
RECOMMENDATION: Suspension from the practice of law for six (6) months and until further order of the Court, with the suspension stayed after sixty (60) days for a twenty-four (24) month period of probation with conditions
DATE OF OPINION: December 21, 2006
HEARING PANEL: Paul C. Hendren, Claire A. Manning, and Richard Corkery
RESPONDENT'S COUNSEL: William F. Moran, III
ADMINISTRATOR'S COUNSEL: Peter L. Rotskoff
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
LISA M. PENNOCK,
Commission No. 06 SH 06
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on July 13, 2006 at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois, before a Panel of the Hearing Board consisting of Paul C. Hendren, Chair, Claire A. Manning, lawyer member, and Richard Corkery, public member. The Administrator was represented by Peter L. Rotskoff. The Respondent was present and was represented by William F. Moran, III.
On February 3, 2006, the Administrator filed a two-count Complaint against the Respondent. Count I alleged that, in April 2005, a court, in post-dissolution matter (Charles Swartwout v. Lisa Pennock, St Clair County, No. 01 D 269), ordered the Respondent to undergo a urinalysis screening. Because of her recent use of cannabis, the Respondent believed cannabis was present in her urine and sought to obtain urine from others for the urinalysis screening. She asked a secretary at the law firm where she worked to provide a urine sample for her to use. After the secretary refused, the Respondent asked a receptionist at the law firm to provide a urine sample. The receptionist also refused. Based on the foregoing conduct, it was alleged that the Respondent engaged in dishonesty and conduct prejudicial to the administration of justice.
Count II alleged that the Respondent was convicted of driving under the influence of alcohol in 1992, and again in 2004. In 2001, she pleaded guilty to the offense of driving while her driver's license was suspended. In 2004, she pleaded guilty to the offense of resisting or obstructing a police officer. Based on the foregoing conduct, it was alleged that the Respondent engaged in criminal acts that reflect adversely on her fitness as an lawyer and conduct that tends to defeat the administration of justice or bring the legal profession into disrepute.
On March 13, 2006, the Respondent filed an Answer in which she admitted all of the factual allegations and all of the misconduct charged in the Complaint. She also asserted that her misconduct was "directly related to a disability from which she suffers, alcoholism, for which she has received and is receiving treatment, and which does not require that she be transferred to disability inactive status."
The Administrator presented the testimony of Dr. Stafford Henry, and called the Respondent as an adverse witness. The Administrator's Exhibits 1 through 7 were admitted into evidence. (Tr. 6) The Respondent testified on her own behalf, and presented the testimony of George Triefenbach. She also presented the deposition testimony of Dr. Srinivas Chilakamarri, her treating psychiatrist, Scott Dixon and Joyce Linnemann. The Respondent's Exhibits 1 and 2 were admitted into evidence. (Tr. 7)
The Respondent testified that she is 53 years of age and has been licensed to practice law since 1985. She was married to Hal Pennock for about eight years, they had no children, and were divorced in 1982. In 1987, she married Charles Swartout, who she met in law school. They have two minor children. The Respondent said that Charles "kicked me out of the house" in
April 2001. At that time she was drinking a quart of vodka each day. Dissolution of marriage proceedings were commenced in 2001, and are still pending as to the disposition of property. The Respondent has had no visitation rights for five years and said she sees and/or talks with her children "every once in awhile." (Tr. 18, 93, 98-99, 102-03, 110-11, 118-19)
The Respondent worked in a Belleville law firm until 1991. She then was an in-house attorney for CIGNA Insurance. In about 1993, she started working for the Belleville law firm of Riplinger, Dixon & Johnston. After the law firm broke up, she went to work with the Dixon & Johnston firm. She continued working for Dixon & Johnston until April 2005. She currently practices law out of her home. She said she has about 5 to 10 open cases, some of which are pro bono. She also said she has handled about 10 pro bono cases in the past 3 to 4 years. (Tr. 19, 101-06, 139-40)
The Respondent said that she first drank alcohol at age 12. She drank a "lot of beer" and "smoked a lot of pot" during her time in high school. She said that her alcohol use got worse over the years, and that by the year 2000 she was drinking a quart of vodka everyday. However, she said she did not drink alcohol during the day and was never intoxicated in court. In fact, no client has filed a disciplinary complaint against her. She acknowledged that her "addictions and mental illness" affected her family relationships, and "ruined my family." (Tr. 94-96, 106-10)
After her DUI arrests in 2001, the Respondent recognized she was in need of treatment. At that time, she cried numerous times a day, was suicidal, had tremors, and reeked of alcohol. She described herself as a "horrible mess." She began seeing Dr. Chilakamarri, a psychiatrist, and began taking medications. She had inpatient treatment for 4 days, followed by outpatient treatment. In December 2001 she went into detox. She said that she was finally able to quit drinking in January 2002, and has not used alcohol since then. She acknowledged using
marijuana on "rare occasions" since January 2002. She explained that she thought that marijuana "would just, like, take the edge off so I wouldn't crave alcohol." She said she now realizes that that was "not a very smart thing to do." (Tr. 114, 117-18, 120-21, 132-33, 156)
The Respondent discussed an incident in May 2005 when the breath alcohol ignition interlock device (BAIID) in her motor vehicle indicated that she had used alcohol. She asserted that she had not used alcohol and that the device malfunctioned. As a result of this incident her employment driving permit was revoked by the Secretary of State. She filed a petition to reinstate and, after a hearing, her request was denied. She said the denial was not based on her use of alcohol, but rather on the grounds that she drove outside the scope of her permit and drove after her permit was revoked. She further stated that the foregoing findings were based upon misstatements she made during her testimony at the hearing. (Tr. 141-42, 155-56, 162)
The Respondent also testified that she is now "clean and sober" and intends to "always be." Her present treatment program includes seeing Dr. Chilakamari about every two months, taking medications as prescribed, and attending about four AA meetings each week. She also said she has had the same AA sponsor for about 9 months. (Tr. 121, 144-45)
In regard to the charges in Count I, the Respondent explained that she went to court on April 6, 2005, on a post-dissolution matter involving property. She said she was "blindsided" when the judge, at the request of her ex-husband's attorney, ordered her to submit to a drug screening over the lunch hour. She "did not want to provide [a urine sample] because I knew it would be positive [for marijuana]." She said she told her attorney she was going to ask somebody else for a urine sample to use, and her attorney replied "go ahead and do it, just don't let me know about it." The courthouse was about a half-block away from her place of work, the Dixon & Johnston Law Office. The Respondent used her cell phone to telephone Joyce
Linnemann, a secretary at the law firm. The Respondent asked Joyce to provide a urine sample for the Respondent to use. Joyce refused. When the Respondent arrived at the office minutes later, she again asked Joyce for a urine sample. Joyce refused to provide a urine sample a second time. The Respondent then asked a receptionist, Penny Brunner, to provide a urine sample. Penny also refused. Apparently, the Respondent's employer, Scott Dixon, overheard the Respondent and told her that she was "not thinking clearly." The Respondent said she realized Mr. Dixon was correct. She then took the drug test by using her own urine. The Respondent described the test results as "mildly positive" for marijuana. She said she "had smoked half a joint a week and a half before." (Tr. 19-25, 123-25, 157-59; Adm. Ex. 1)
The Respondent testified that she would not have used another person's urine for her drug test. She said that she was thinking unclearly and foolishly for about five minutes. She also said that she regrets asking the other people for urine samples, and she wrote a letter of apology to Mr. Dixon. (Tr. 23-34, 126, 128, 151, 158)
In regard to Count II, the Respondent acknowledged that she was arrested on three occasions for driving while intoxicated (May 1992, April 2001, and May 2001), and on one occasion for resisting or obstructing a police officer (May 2001), and that on each occasion, she was intoxicated. She also said she feels "terrible" about these incidents. (Tr. 135, 139)
She pleaded guilty to DUI in 1992, and was placed on supervision, and ordered to pay a fine and costs. She completed her sentence and was released from supervision. She noted that there was no accident involved in this incident and that no one was injured. (Tr. 25-26, 130-32; Adm. Ex. 2)
When arrested in April 2001 for DUI, which was shortly after her separation from her husband, she said some "horrible" things to the arresting officer. She subsequently apologized to
them. She was then arrested in May 2001 on another DUI charge. She pleaded guilty to one count of DUI and the other charge was dismissed. She was sentenced to one year of conditional discharge and fined. She completed her sentence. (Tr. 26-29, 133-37; Adm. Ex. 3 and 4)
In May 2001, she was arrested for resisting or obstructing police officers who came to her residence. She said that the police came to her residence after her husband called them to check on her. She also said that the police "had no reason to come into my home, and they wanted to storm trooper my residence . . . [and] they had no warrant." She then explained that "I wouldn't have pled me guilty to this," but she followed her attorney's advice to plead guilty. She also completed the sentence for this misdemeanor. (Tr. 29-30, 135; Adm. Ex. 5)
In October 2001, the Respondent was arrested for driving while her license was suspended. The Respondent explained that she had an appointment with her therapist and was unable to get a ride from anybody. She then decided to drive herself, was stopped for speeding, and was charged with driving on a suspended license. She pleaded guilty and was ordered to perform community service. She completed her sentence. (Tr. 30-31; Adm. Ex. 6)
Finally, the Respondent acknowledged that she did not report any of the above convictions to the ARDC. She said that she was unaware of the rule requiring that she do so. She also noted that no one, such as her attorney, a judge or a state's attorney, told her she was required to report her convictions to the ARDC. She said that a judge, at one hearing, "speculated that he might have to contact the ARDC [about her], but he never once said [she] had to." (Tr. 31, 137-38)
Scott Dixon testified by evidence deposition that he is one of the principals in the law firm of Dixon & Johnston. The Respondent worked at Dixon & Johnston for about 12 years,
until she was discharged in April 2005. He said that the Respondent has a "pretty good" reputation for honesty and integrity. (Dep. p. 4-6)
On April 6, 2005, Scott was informed that the Respondent had been ordered by a judge to submit to a drug test and that she had requested her secretary, Joyce Linnemann, to provide urine for the drug test. After Joyce refused, the Respondent "pulled" the receptionist, Penny Brunner, into her office and asked Penny to do the same thing. Scott said that he interrupted the meeting between the Respondent and Penny, sent Penny back to the receptionist desk, and told the Respondent she had to "comply with the judge's order." She replied that she was concerned the test would be positive. He then told her "it doesn't matter" and that the "judge has told you to do something, you've got to go do it." She then took the drug test. (Dep. p. 6-8, 11)
A few days later, Mr. Dixon discharged the Respondent and reported the incident to the ARDC. (Dep. p. 9)
Joyce Linnemann testified by evidence deposition that she is a legal secretary at the Dixon & Johnston Law Firm and did most of the Respondent's secretarial work. (Dep. at 5-6)
On the morning of April 6, 2005, the Respondent telephoned Joyce, told her a judge had ordered the Respondent to take a drug test, and asked Joyce to provide the urine for the test. Joyce refused. The Respondent arrived at the law firm about 10 minutes later, brought Joyce into her office, closed the door, and again asked Joyce to provide a urine sample. Joyce explained that the Respondent "basically pleaded with me to do it and I told her I wouldn't." The Respondent replied that she would ask the receptionist, Penny, to do it. The Respondent called Penny into her office, closed the door, and asked Penny to provide a urine sample. Penny declined. Joyce reported this matter to the office manager, who informed Scott Dixon. Joyce said no more than
30 minutes had elapsed between the Respondent's telephone call to her and when Scott Dixon was informed of the matter. (Dep. p. 6-11)
George Triefenbach testified that he is a 61-year old retired commercial airline pilot. He discussed an incident in 1992 when he was removed from an aircraft he was about to pilot because someone smelled alcohol on him. The following day he began inpatient treatment for his alcoholism. He said he has abstained from alcohol since 1992, has sponsored other pilots in AA, and has attended about two AA meetings a week since 1992. He was allowed to return to his position as a pilot after about eight months. (Tr. 71-73)
He met the Respondent at an AA meeting in 2001. She later became his girlfriend. He said that in 2001 the Respondent was going though a divorce, was having a "terrible time," and was shaking so bad she couldn't hold a cup. (Tr. 75-76)
Mr. Triefenbach said that the Respondent has been attending about three AA meetings a week since January 2002. He also said that the Respondent has not used alcohol since January 2002. He further stated that he and several other people serve as a support group for the Respondent. (Tr. 77-79, 86-87)
Mr. Triefenbach denied that the Respondent used alcohol in May 2005. He explained that the breath alcohol ignition interlock device (BAIID) in her car malfunctioned and incorrectly indicated alcohol use. He voiced the opinion that the malfunction was caused by a bad battery in her car. He acknowledged that at a Secretary of State hearing the Respondent claimed that the device malfunctioned "because of her tobacco use." (Tr. 80-82, 90-91)
Mr. Triefenbach stated that he had no personal knowledge of the Respondent's use of marijuana in April 2005 because he was in another state at the time. (Tr. 83-84, 89)
Finally, Mr. Triefenbach said that he believed the Respondent to be an "honest person" and dedicated towards remaining abstinent. (Tr. 85, 87)
Dr. Srinivas Chilakamarri
Dr. Chilakamarri, a psychiatrist (Resp. Ex. 3), testified by evidence deposition (Resp. Ex. 1) that he has treated the Respondent since July 2001. He said that he agrees with Dr. Henry's diagnosis of the Respondent as to a bipolar disorder, alcohol dependence, and cannabis and cocaine abuse. He disagrees, however, with Dr. Henry's Axis II diagnosis of personality disorder not otherwise specified. (Resp. Ex. 1, p. 7-8, 11-12, 17, 19)
Dr. Chilakamarri is currently seeing the Respondent about every three months and has prescribed medication: Topamax, Lithium, Wellbutrin, and Celexa. He said that she has made "remarkable improvement" since December 2001, and that he has no indication that the Respondent is currently using marijuana or any other illegal drug. (Resp. Ex. 1, p. 7, 11, 17-19)
Dr. Chilakamarri also stated that the Respondent will continue to need medication for a very long time, at least five years. He recommended that she continue with her medication, continue to see him on a regular basis, have individual counseling, and regularly attend AA meetings. He said the Respondent is "compliant with all the recommendations" and that, with such a program, would be able to handle the stresses of practicing law. (Resp. Ex. 1, p. 13-15, 18-20)
Dr. Stafford Henry
Dr. Stafford Henry, a psychiatrist (Adm. Ex. 7), testified that he evaluated the Respondent at the request of the ARDC. He met with the Respondent on September 12, 2005, reviewed documents, and spoke with people acquainted with her in making his evaluation. (Tr. 33-38)
Dr. Henry diagnosed the Respondent to have a bipolar disorder, alcohol dependence, cannabis and cocaine abuse, and a personality disorder not otherwise specified with histrionic features. He noted that, according to the Respondent, she last used cannabis in April 2005. Dr. Henry found that this relatively recent use of cannabis raises concerns. He explained that such use is illegal, and that her use of cannabis occurred at the time she was "religiously" attending 12-step meetings. Thus, she "demonstrated that there was something about her use of substances that she just wasn't getting." Dr. Henry also noted that the Respondent stated she has not used alcohol since 2002, and that, if true, was noteworthy. However, the breath alcohol ignition interlock device on her vehicle indicated she used alcohol on May 5, 2005. He acknowledged "it happens" that such devices malfunction. (Tr. 38-75, 57, 61)
Dr. Henry voiced that opinion that the Respondent's psychiatric disorders have the potential to affect her ability to practice law. He also stated that there was no evidence indicating the Respondent's addictions or mental illnesses have affected her representation of any client. (Tr. 44, 58)
In order to reduce the risk of further incidents of mania, depression, and problematic drinking, Dr. Henry made recommendations for continuing treatment. He suggested that the Respondent participate in a "relapse prevention program." Such a program lasts six to eight weeks, would help her identify risk factors for relapse, develop or fortify coping mechanisms, and increase the likelihood she could "remain sober and live up to her potential." Dr. Henry also recommended that the Respondent continue treatment with her psychiatrist; continue taking prescribed psychotropic medication; remain abstinent from alcohol, cannabis, and all other mood altering substances; regularly attend AA meetings; and be required to submit to random drug testing. (Tr. 49, 45-47, 51, 55-56, 66-67)
Dr. Henry said that the Respondent's present medication is effective, but that a "medication regimen that is effective today may not be effective next week or next month or next year." Thus, there is a need for continuing treatment with a psychiatrist. With proper medication and other treatment, the Respondent could perform the work required of an attorney and handle the related stress. (Tr. 47-48, 50-51, 61)
Finally, Dr. Henry described the Respondent's conduct in April 2004, when she asked others to provide a urine sample for her to use, as a one-time lapse of judgment. While she did admit her problems to her employer, she had "no alternative but to admit it" because she was "cornered by her employer." By admitting to her problems, the Respondent chose the appropriate option. (Tr. 55, 58-59, 67)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Storment, 203 Ill. 2d 378, 390, 786 N.E.2d 963, 969 (2002). This standard of proof requires a high level of certainty, greater than a preponderance of evidence (i.e. more probably true than not true) but not as great as proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 276 (1995). In determining whether the burden of proof has been satisfied, the Hearing Panel has the responsibility of assessing the credibility and believability of the witnesses, weighing conflicting testimony, drawing reasonable inferences from the evidence, and making factual findings based upon all the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126, 1133 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 N.E.2d 983, 987 (1991). The Hearing Panel is in a position to judge credibility and weigh conflicting testimony because it is able to "see the witnesses [and] observe their demeanor." In re Samuels,
126 Ill. 2d 509, 526, 535 N.E.2d 808, 814 (1989). See also In re Spak, 188 Ill. 2d 53, 66, 719 N.E.2d 747, 754 (1999).
Additionally, an admission in a pleading is a formal judicial admission that is binding on the party making it, may not be contradicted, has the effect of withdrawing the fact admitted from issue, and dispenses with the need for any proof of that fact. See In re Estate of Rennick, 181 Ill. 2d 395, 406-07, 692 N.E.2d 1150, 1156 (1998); El Rincon v. First Mutual Insurance, 346 Ill. App. 3d 96, 100, 803 N.E.2d 532, 535-36 (2004); Caponi v. Larry's 66, 236 Ill. App. 3d 660, 671, 601 N.E.2d 1347, 1355 (1992). Thus, when a respondent in a disciplinary matter admits in his or her answer some or all of the facts alleged in a complaint, it is unnecessary for the Administrator to present evidence in support of the facts so admitted. See In re Harris, 97 SH 88, M.R. 16300 (January 24, 2000) (Hearing Board Report at 42); In re Carlson, 98 CH 880, M.R. 17398 (June 20, 2001) (Hearing Board Report at 11).
With the above principles in mind, we make the findings set out below.
The Respondent admitted in her Answer (p. 1-2) all of the factual allegations and the charges of misconduct in Count I of the Complaint.
Based upon the Respondent's admissions, her testimony, and the testimony of Scott Dixon and Joyce Linnemann, we find the following:
On April 6, 2005, the Respondent was employed as an associate at the Dixon & Johnston Law Firm in Belleville. On that date, she was also a party in a post-dissolution of marriage matter in the Circuit Court of St. Clair County (Charles Swartwout v. Lisa Pennock, No. 01 D 269). She appeared in court on the foregoing matter, and the judge ordered her to submit to a drug test during the lunch hour. (Tr. 21; Adm. Ex. 1) The Respondent did not want to provide a
urine sample for the drug test because she knew the results would be positive for marijuana. (Tr. 21, 25)
When the court proceedings were recessed for lunch, the Respondent telephoned a secretary at the Dixon & Johnston Law Firm, Joyce Linnemann, and asked her to provide a urine sample for the Respondent to use. Linnemann refused to do so. The Respondent then walked from the courthouse to the Dixon & Johnston offices, about a half a block away. When she arrived at the law offices, she again asked Linnemann to provide a urine sample. Linnemann again refused to do so. The Respondent then asked a receptionist at the law firm, Penny Brunner, to provide a urine sample. Brunner also refused to do so.
The Respondent's employer, Scott Dixon, was informed of what the Respondent was attempting to do and spoke with her. He told her she had to comply with the judge's order and to "go do it." The Respondent then decided to provide her own urine for the drug test, drove to the location of the test, and submitted to the test. The results of the test were positive for marijuana. (Tr. 23-25; Deposition of Scott Dixon, p. 7-8, 11)
It is clear that the Respondent acted in a dishonest and deceitful manner by attempting to obtain urine from two other people to use for her own court-ordered drug test. Her conduct in this regard placed the two employees of the law firm in a very difficult situation. To their great credit, Joyce Linnemann and Penny Brunner refused to assist the Respondent in her fraudulent scheme to undermine a court order. It reflects poorly on the legal profession when two non-lawyer employees of a law firm demonstrate honesty and integrity, while an attorney fails to do so in the same matter. Clearly, an attorney brings the legal profession into disrepute by requesting non-lawyers to assist in committing such a dishonest and fraudulent act.
We find the Respondent's after-the-fact, self-serving contention that she would not have actually used the urine sample of another for her drug test (Tr. 23, 158) to be unconvincing. We first point out that, in her Answer to the Complaint, the Respondent made the admission that she "intended to use the urine from Brunner and/or Linnemann to deceive the probation department and the Court in case no. 01 D 269." (Complaint, p. 2, para. 8; Answer, p. 2, para. 8) We also note that even in criminal cases, with their higher burden of proof, intent is generally proved by circumstantial evidence. See People v. Jiles, 364 Ill. App. 3d 320, 332-33, 845 N.E.2d 944, 955 (2006). In this case, the Respondent's conduct of making three requests to obtain someone else's urine to use in her drug test was clear and unequivocal. We find that the reasonable reference from the Respondent's conduct, in the circumstances presented, is that the Respondent intended the results of her actions, that is to use the urine samples she tried to obtain from others.
Although the Respondent ultimately decided to use her own urine in the drug test, her decision followed two significant events. First, the two employees refused to provide the urine sample she requested. Second, another attorney, her employer, heard about her scheme, confronted her, and told her she had to obey the court's order.
The Respondent testified that, when she told her attorney for the post-dissolution matter she was going to ask somebody to provide a urine sample for her drug test, he told her to "go ahead and do it." (Tr. 123, 158-59) We note that the Respondent's attorney did not testify at the disciplinary proceeding, and we make no finding that the alleged statement attributed to him was actually even made. However, even if her attorney made the statement, it provides no justification or mitigation for her misconduct. Every attorney should know that it is dishonest, deceitful, and contrary to the integrity required of all members of the legal profession to cause or attempt to cause a false result in a court-ordered drug test.
Based upon the above, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in Count I: (a) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct; (b) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); (c) induced another to engage in conduct which the lawyer knows will violate the rules of professional conduct, in violation of Rule 8.4(a)(2); and (d) engaged 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 Respondent admitted in her Answer (p. 3) all of the factual allegations and the charges of misconduct in Count II of the Complaint.
Based upon the Respondent's admissions, her testimony, and Administrator's Exhibits 2 through 6, we find the following:
In May 1992, the Respondent committed the Class A misdemeanor offense of driving under the influence of alcohol. (625 ILCS 5/11-501(a) and (c)). She entered a plea of guilty, was placed on court supervision for one year, and ordered to pay a fine. She satisfied the sentence. (Adm. Ex. 2; Tr. 25-26, 130-32)
In April 2001, the Respondent committed another offense of driving under the influence of alcohol. In May 2001, she committed a third offense of driving under the influence of alcohol. She subsequently pleaded guilty to the April 2001 offense, and the charge from May 2001 was dismissed pursuant to plea negotiations. She was sentenced to conditional discharge and fined. She satisfied her sentence. (Adm. Ex. 3, 4; Tr. 26-29, 133-37)
In a separate, subsequent incident in May 2001, the Respondent committed the Class A misdemeanor offense of resisting or obstructing a peace officer (720 ILCS 5/31-1(a)). She entered a plea of guilty, and was ordered to pay a fine and costs. She paid the amounts as ordered. (Adm. Ex. 5; Tr. 29-30, 135)
In October 2001, the Respondent committed the Class A misdemeanor offense of driving while driver's license is suspended. (625 ILCS 5/6-303(a)) She was ordered to perform 240 hours of community service. She completed her sentence. (Adm. Ex. 6; Tr. 30-31)
We note that in regard to the resisting or obstructing a peace officer offense in May 2001, the Respondent suggested in her testimony that she resisted after the police officers entered her residence without a warrant or valid reason to enter. (Tr. 29) However, it is well established that a person is not authorized to resist an unlawful arrest by a known police officer. See People v. Villarreal, 152 Ill. 2d 368, 374-75, 604 N.E.2d 923, 925-26 (1992).
An attorney's criminal conviction is "conclusive evidence" of the attorney's guilt. The attorney may not relitigate the issue of guilt at a disciplinary proceeding, but may, for the purpose of mitigation, present evidence of the circumstances surrounding the crime as long as such evidence does not impeach the conviction or "the factual allegation of the charges to which he pleaded guilty." In re Ciardelli, 118 Ill. 2d 233, 239-40, 514 N.E.2d 1006, 1009 (1987); In re Williams, 111 Ill. 2d 105, 113, 488 N.E.2d 1017, 1020 (1980).
A finding of misconduct may be based upon an attorney's commission of a criminal act even if the attorney was not charged with or convicted of the crime, as long as the criminal conduct is proved by clear and convincing evidence. See In re Rolley, 121 Ill. 2d 222, 233, 520 N.E.2d 302, 307 (1988); In re Sims, 144 Ill. 2d 323, 324-25, 579 N.E.2d 865, 866 (1991); In re Rinella, 175 Ill. 2d 504, 506, 513, 677 N.E.2d 909, 910-11, 914 (1997). In this case, the
Respondent admitted in her testimony that she was intoxicated at the time of all of her arrests for DUI, which included the May 2001 charge that was dismissed pursuant to plea negotiations. (Tr. 135)
It is also well established that an attorney's commission of a criminal act, even one that does not involve moral turpitude, constitutes misconduct that reflects adversely on the attorney's "fitness as a lawyer," and tends to bring the legal profession into disrepute. See In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1, 2-3 (1985); In re O'Hallaren, 64 Ill. 2d 426, 432, 356 N.E.2d 520, 523 (1976). As explained in Scarnavack:
"Every lawyer owes a solemn duty to encourage respect for the law. We believe obedience to the law exemplifies respect for it. The respondent's conduct does not evidence such respect.
An attorney is held to a higher standard of conduct, particularly with respect to upholding the law, so that a conviction for such a criminal offense as in the present case [possession of 0.46 grams of cocaine] requires disciplinary action in order to protect the public, the courts, and the legal profession." Scarnavack, 108 Ill. 2d at 460-61, 485 N.E.2d at 2-3.
In In re Dempsey, 94 CH 454, Hearing Board Report at 8-9 (Hearing Board Report approved at M.R. 11064, May 26, 1995), the attorney's conviction for DUI adversely reflected upon his fitness as a lawyer and tended to bring the legal profession into disrepute. See also In re Schickedanz, 01 SH 108, M.R. 18725 May 22, 2003 (DUI); and In re Lutz, 01 CH 40, M.R. 17955 (March 22, 2002) (resisting arrest)
In this matter, the Respondent's commission of three DUI offenses, one resisting or obstructing a peace officer offense, and one driving while license suspended offense clearly reflects adversely on her fitness as a lawyer and tends to bring the legal profession into disrepute.
The Respondent also failed to comply with Supreme Court Rule 761(a), which requires an attorney to report to the ARDC any conviction of a felony or misdemeanor, whether by plea or judgment after trial, within 30 days of the conviction. The Respondent admitted that she did
not report any of her convictions to the ARDC. Her explanation was that she was simply unaware of the reporting requirement. (Tr. 31-32, 137-38) However, the Supreme Court has made it clear that "ignorance" of ethical requirements is "no excuse" (In re Gerard, 132 Ill. 2d 507, 537-38, 548 N.E.2d 1051, 1064 (1989)) and that "[i]t is a paramount obligation of each member of the bar to study the Code of Professional Responsibility and abide by its terms and principles" (In re Cheronis, 114 Ill. 2d 527, 535, 502 N.E.2d 722, 726 (1986)). Additionally, the Respondent testified that, at one court proceeding, a judge mentioned that "he might have to contact the ARDC" about her convictions. (Tr. 138) Such comment by the judge should have put her on notice that, at the least, an inquiry to the ARDC about this matter was appropriate.
Based upon the above, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in Count II: (a) committed criminal acts that reflect 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; (b) failed to notify the Administrator of her convictions, in violation of Supreme Court Rule 761; and (c) engaged 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 attorney disciplinary system is not to punish an attorney for misconduct, but to protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice. In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000); In re Smith, 168 Ill. 2d 269, 295, 759 N.E.2d 896, 908 (1995). In recommending a particular sanction, the Hearing Board is to consider the nature and seriousness of the misconduct that was charged and proved, and any aggravating and mitigating circumstances
shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and "whether the sanction will help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d at 85, 727 N.E.2d at 1034; In re Gorecki, 208 Ill. 2d at 361, 802 N.E2d at 1200. While recognizing that each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 1135 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473, 479 (1994).
In the case before us, the Administration and the Respondent agreed that a suspension stayed by a term of probation is the appropriate sanction. (Tr. 169, 173) They also agreed on the conditions of probation. (Tr. 169-70, 181) However, the Administrator recommended that the suspension be stayed in part, and that the Respondent be required to serve a period of suspension for 30, 60, or 90 days. (Tr. 163-64) The Respondent argued that the suspension should be stayed in its entirety. (Tr. 178, 180)
The misconduct that was charged and proved consisted of driving under the influence of alcohol on May 31, 1992; driving under the influence of alcohol on April 24, 2001; driving under the influence of alcohol on May 3, 2001; resisting or obstructing a police officer on May 27, 2001; driving while her license was suspended on October 24, 2001; and acting in a dishonest manner by requesting a secretary and a receptionist in the law office where she worked to provide urine samples for her to use in a court-ordered drug test on April 6, 2005.
The nature and circumstances of the Respondent's misconduct demonstrated disrespect for the law. It is apparent that her misconduct was related to her mental disorder and/or her
substance abuse. While this is a mitigating factor, it does not excuse her actions. (See In re Ackermann, 99 Ill. 2d 56, 68, 457 N.E.2d 409, 414 (1983)). It is clear that the Respondent had the ability to reason, understand what she was doing, and act knowingly.
In mitigation, we considered that the Respondent has no prior discipline, cooperated during the disciplinary proceeding, and expressed regret for her misconduct. (Tr. 128, 139)
We agree with the Respondent that the seriousness of her misconduct is lessened somewhat because it did not involve the representation of clients. (Tr. 176) Nevertheless, her misconduct in attempting to obtain urine samples from others for the purpose of falsifying her drug test results and deceiving a court was related to the administration of justice. Also, her misconduct was related to her practice of law, in that she sought to convince two subordinates in the law office where she worked to assist in her fraudulent scheme. We note that the Supreme Court has stated that the "fraudulent act of an attorney acting in his own behalf in which he seeks personal gain, is no less reprehensible than when he acts on behalf of his client." In re Chandler, 161 Ill. 2d 459, 473, 641 N.E.2d 473, 479-80 (1994).
We also considered the fact that the Respondent did not carry out her attempted scheme regarding the court-ordered drug test. However, as mentioned in the findings, the Respondent ceased her efforts only after a secretary and receptionist refused to provide urine samples she requested, and after another attorney, who was her employer, found out about her efforts and told her to comply with the court's order. (Deposition of Scott Dixon, p. 7-8)
We agree with the Respondent (Tr. 179) that her misconduct on April 6, 2005, involved a lapse of sound judgment for a relatively short period of time, about 30 minutes. (Deposition of Joyce Linnemann, p. 8-9) However, her conduct on that date was another instance of her pattern of failing to obey the law. Her first DUI was in 1992. She then committed four more offenses in
2001. Also, by her own admissions, the Respondent had violated the law by using cannabis. Dr. Henry testified that the Respondent said "she again took up cannabis in or about 2001 . . . she did it for several months and then picked it up again in 2004, and then picked it up again in 2005." (Tr. 40) Dr. Chilakamarri also was aware of her use of cannabis. (Resp. Ex. 1, p. 9-10) The requirement that an attorney must aid a court in "arriving at correct conclusions" and "the importance of obeying the criminal laws of the state are not ambiguous concepts, requiring years of legal experiences to understand." (In re Winthrop, 219 Ill.2d 526, 555, 848 N.E.2d 961, 979 (2006); In re Baril, 00 SH 14, Review Board Report at 6 (Review Board Report approved in M.R. 18162, September 19, 2002)) Consequently, the pattern of the Respondent's failure to comply with the law is a significant concern and tends to bring the legal profession into disrepute.
The Respondent points out in mitigation that she voluntarily commenced treatment with Dr. Chilakamarri in July 2001. (Tr. 117-18, 180) We agree that it was commendable for the Respondent to seek treatment before being ordered to do so. She was subsequently ordered to obtain alcohol treatment after she entered a plea of guilty to DUI on September 9, 2004. (Adm. Ex. 3, p. 2) The evidence, however, raises questions about the Respondent's commitment to treatment and recovery until recently. For example, by her own admission, she continued to use alcohol from July 2001 until January 2002. (Tr. 114) It is unclear whether she also consumed alcohol in May 2005 (Tr. 45, 57, 141-43) when the breath alcohol ignition interlock device in her motor vehicle indicated she had done so. She claimed that she had not used alcohol and that the device malfunctioned. The Respondent could have resolved any uncertainty in this regard by submitting to a drug/alcohol test on the day the device showed a positive reading. But, she did not do so. Of more importance is the fact that the Respondent continued to use cannabis for
about four years after she commenced her treatment. (Tr. 40, 120-21; Resp. Ex. 1, p. 9-10) Not only did her use of cannabis raise questions about her commitment to treatment (Tr. 43-44) but, as noted above, it violated the criminal laws of Illinois.
We are concerned that the Respondent does not fully understand the seriousness of her misconduct and does not accept full responsibility for it. While she did admit the misconduct, her testimony showed an attempt to minimize or mitigate her misconduct by blaming or casting aspersions upon others. For example, as to her misconduct on April 6, 2005, she said that her ex-husband's attorney and the judge "blindsided" her with the order for her to take a drug test when visitation wasn't even an issue. (Tr. 20-21, 122) The issue, however, is not the correctness of the judge's order, but rather the fact that the Respondent knew the drug test result would be positive because she had used cannabis and that she tried to get others to assist her in fabricating the drug test results. The Respondent also testified that, when she told her own attorney she was going to ask someone to provide a urine sample for her drug test, he replied "go ahead and do it, just don't let me know about it." (Tr. 123) Although we did not find the Respondent to be a very credible witness, even if her attorney had made the foregoing statement, it did not excuse or mitigate her misconduct.
In regard to her conviction for resisting or obstructing police officers, arising from an incident on May 27, 2001, the Respondent said that the police "wanted to storm trooper my residence . . . they had no warrant . . . [and] they had no reason to come into my dwelling." (Tr. 29) However, her own testimony indicated that the police came to her home merely to check on her well being after her ex-husband asked them to do so because she was "very distraught" and had "several suicide attempts." (Tr. 29-30) Furthermore, as noted in our findings, a person is not authorized to resist an unlawful arrest by a police officer. She also testified that, if she had been
her own attorney "I wouldn't have pled me guilty to his [resisting or obstructing charge], but [my attorney] did and I had to follow his advice." (Tr. 29-30)
Upon being questioned about her continued use of alcohol after she commenced treatment and began taking medication prescribed by Dr. Chilakamarri, she said that Dr. Chilakamarri "never said you can't take this medication and don't drink." (Tr. 116) In regard to her failure to report her convictions to the ARDC, as required by Rule 761(a), the Respondent said that no one, including her attorney, the prosecutor, or the judge, told her she had to do so. (Tr. 31, 137-38) Of course, the ethical rules did not require any other attorney to advise her to report her convictions, but a specific rule does require that she make such a report.
In summary, we do not believe the Respondent fully understands the seriousness of her misconduct and has not recognized that she, alone, is responsible for her misconduct.
We conclude that the Respondent meets the criteria for probation, as set out in Supreme Court Rule 772. The testimony of Dr. Chilakamarri and Dr. Henry sufficiently showed that she is able to practice law without a significant risk of harm to the public or the profession as long as she complies with the conditions of probation.
After considering the nature of the misconduct, the facts and circumstances shown by the evidence, the Respondent's testimony, and the cases cited by the parties, we believe that it is appropriate to require the Respondent to serve a period of suspension in addition to a term of probation.
In the cases cited by the Respondent, suspensions were stayed in their entirety for a term of probation. We note that in two of the cited cases, In re Jordan, 157 Ill. 2d 266, 275, 623 N.E.2d 1372, 1377-78 (1993) and In re Myers, 99 SH 88, Review Board Report at 18-19 (Review Board Report approved in M.R. 17766, January 28, 2002) (Tr. 174-76), the attorney
misconduct was an "isolated incident" and was "not motivated by personal gain." In this case, the Respondent engaged in a pattern of misconduct over a period of years and her only motive was self-serving. In another cited case, In re Ackermann, 99 Ill. 2d 56, 63, 68, 457 N.E.2d 409, 412, 420 (1983) (Tr. 176-77), the Supreme Court pointed out that the attorney had "admitted, virtually every factual allegation in the complaint," that his "voluntary admission to the alcohol-treatment center prior to the initiation of disciplinary proceedings [was] especially impressive," and he "demonstrated an understanding and appreciation of his wrong doings." In this case, as discussed above, the Respondent tended to minimize or mitigate her misconduct; she failed to demonstrate a commitment to recovery by continuing to use alcohol for 6 months and cannabis for about 4 years after she commenced treatment; and she failed to demonstrate a full understanding of the seriousness of her misconduct. In the final case cited by the Respondent, In re Freidin, 02 CH 113, M.R. 19164 (January 20, 2004), the sanction was based upon a petition to impose discipline on consent. The petition pointed out that the attorney was diagnosed by Dr. Henry (who testified in this case) as having "alcohol dependence, in sustained remission" and that the attorney had been "abstinent from alcohol for the last eighteen months." (Petition, p. 5) Also, there was no indication in Freidin that the attorney failed to understand the seriousness of his misconduct or tried to minimize it by blaming others. In this case, both Dr. Henry and Dr. Chilakamarri diagnosed the Respondent with alcohol dependence, cannabis and cocaine abuse, without any mention of "remission" or "sustained remission." Also, the Respondent had abstained from cannabis for, at most, 15 months prior to the hearing and she demonstrated that she did not understand the seriousness of her misconduct or accept full responsibility for it.
We note that the commission of multiple criminal offenses may warrant a suspension. See In re Lemna, 02 SH16, M.R. 18913 (November 14, 2003) (suspension of 45 days imposed
where the attorney engaged in a disorderly conduct by struggling with an officer after a traffic stop; committed a battery on a person at a business officer; and committed domestic battery and resisted a police officer in a third incident); In re Palmer, 00 SH 13, M.R. 17881 (January 29, 2002) (attorney suspended for 3 years and until further order of the court, stayed after 12 months for a term of probation where the attorney committed the offense of DUI on four occasions, the last being a felony, and committed the offense of driving while license revoked on two occasions). Also, dishonesty directed at a court proceeding may also warrant a suspension. In In re Engelmann, 99 SH 29, M.R. 16242 (January 24, 2000), the attorney falsely represented in court that certain individuals in the courtroom were representatives of medical providers who confirmed that the medical bills were accurate. The other counsel then stipulated to the medical bills. The individuals were actually secretaries from his law office who he instructed to appear and hold themselves out to be representatives of the medical providers. Even though the medical bills were, in fact, accurate and authentic, the attorney was suspended for 60 days. (Petition to Impose Discipline on Consent, p. 2-3)
We believe that requiring the Respondent to serve a period of suspension will help preserve public confidence in the legal profession and the disciplinary system; will impress upon the Respondent the seriousness of her misconduct and that she alone was responsible for it; and will emphasize to the Respondent that further misconduct by her will not be tolerated.
Therefore, we recommend that the Respondent, Lisa M. Pennock, be suspended from the practice of law for a period of six (6) months and until further order of the Court, with the suspension stayed after the first sixty (60) days and the Respondent be placed on probation for twenty-four (24) months, subject to the following conditions:
Within the first 30 days of probation, the Respondent shall enroll in an outpatient relapse prevention program approved by the Administrator, and thereafter complete such program;
Respondent shall abstain from the usage of alcohol and any unprescribed controlled substances;
Respondent shall continue the course of treatment recommended by Dr. Srinivas Chilakamarri, M.D., or another qualified mental health professional acceptable to the Administrator, including following all treatment recommendations and the taking of medications as prescribed;
Respondent shall keep the Administrator informed, as requested, of her current course of treatment, her attendance, and any change in the course of treatment;
Respondent shall provide Dr. Chilakamarri, or other qualified mental health professional treating her, an appropriate release, authorizing the treating professional to: (1) disclose to the Administrator on at least a quarterly basis information pertaining to the nature of the Respondent's compliance with any treatment plan established with respect to Respondent's condition; (2) promptly report to the Administrator Respondent's failure to comply with any part of an established treatment plan; and (3) respond to any inquiries by the Administrator regarding Respondent's mental or emotional state or compliance with any established treatment plans;
Respondent shall notify the Administrator within fourteen days of any change in treatment 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 hours of receiving notice by the Administrator that she 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 participate in any support groups, such as Alcoholics Anonymous, recommended by the mental health professional treating her;
Respondent shall report to the Administrator any lapse in her sobriety or usage of any uncontrolled substances within 72 hours of that usage;
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 extent of her compliance with the conditions of probation;
Respondent shall notify the Administrator within fourteen 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 investigation relating to her 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;
At least thirty days prior to the termination of the period of probation, Respondent shall reimburse the Disciplinary Fund for any Client Protection payments arising from her conduct;
Probation shall be revoked if Respondent is found to have violated any of the terms of probation. The remainder of the period of suspension shall commence from the date of the determination that any terms of probation have been violated and shall continue until further order of the Court; and
If Respondent successfully completes the term of her probation, the probation shall terminate without further order of the Court.
Date Entered: December 21, 2006
|Paul C. Hendren, Chair, with Panel Members Claire A. Manning and Richard Corkery, concurring|