Filed March 20, 2008
In re Jeffrey Arlan Kline
Commission No. 07 CH 44
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) failing to notify the Administrator of a conviction in writing within 30 days after the entry of the judgment of conviction; 3) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; 4) engaging in conduct prejudicial to the administration of justice; and 5) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: 8.4(a)(3), 8.4(a)(4), 8.4(a)(5) of the Illinois Rules of Professional Conduct, and Supreme Court Rules 761(a) and 770.
DATE OF OPINION: March 20, 2008.
HEARING PANEL: Keith E. Roberts, Jr., Nam H. Paik and Kenneth A. Peters.
RESPONDENT'S COUNSEL: Respondent did not appear and was not represented by counsel.
ADMINISTRATOR'S COUNSEL: Christine P. Anderson.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
JEFFREY ARLAN KLINE,
Commission No. 07 CH 44
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on January 15, 2008 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC"), Chicago, Illinois before a panel consisting of Keith E. Roberts, Jr., Chair, Nam H. Paik, and Kenneth A. Peters. Christine P. Anderson represented the Administrator of the ARDC. Respondent Jeffrey Arlan Kline did not appear and was not represented by counsel.
COMPLAINT AND PRE-HEARING PROCEEDINGS
On May 22, 2007 the Administrator filed a three-count complaint against Respondent alleging three instances of criminal conduct, failure to notify the Administrator of a conviction, and dishonesty.
On September 25, 2007 Respondent was served with a copy of the Complaint and accompanying documents by substitute service upon the Clerk of the Supreme Court. Attached to the service was the affidavit of Erin McCann, an ARDC senior investigator, which recited her attempts to locate Respondent. According to McCann's affidavit, Respondent failed to register with the Commission for the years 2006 and 2007, no longer maintains an office at his last
registered business address in Rockford, Illinois, and does not currently reside at his last registered home address in that city. Communications with Respondent's ex-wife and her counsel revealed that Respondent is believed to be living in Costa Rica, and neither his ex-wife nor his birth family have had any contact with him since March 2006. Documents received from Respondent's ex-wife showed that in the spring of 2006 Respondent transferred marital assets to a bank in Costa Rica. Investigator McCann's communications with the United States Embassy in San Jose, Costa Rica in August 2007 confirmed that Respondent had "movements at the Banco de Costa Rica" and is believed to be currently residing in Costa Rica. McCann stated that she had sent a copy of the Administrator's Complaint and accompanying documents by regular mail to Respondent's last registered business and home address.
Respondent did not file an answer or otherwise respond to the Complaint, failed to appear for his discovery deposition, failed to produce documents, and failed to file a report disclosing potential witnesses as required by Commission Rule 253. On November 6, 2007, the Chair granted the Administrator's motion to deem the allegations of the Complaint admitted. On December 12, 2007, the Administrator's motion for sanctions was granted and Respondent was barred from testifying, presenting any witnesses, or introducing any evidence at hearing. Copies of the foregoing orders were mailed to Respondent in care of the Clerk of the Supreme Court, and to his last registered home and business addresses.
The Administrator presented one witness, Dr. Stafford Henry, and eleven exhibits which were admitted into evidence. The evidence and admitted allegations established the following facts.
On January 22, 1984, Respondent was arrested in Belvidere, Illinois for driving under the influence of alcohol, a class A misdemeanor. On September 25, 1984, Respondent entered a guilty plea, and the matter was continued to October 9, 1984 for sentencing. On that date the court sentenced Respondent to a two-year period of court supervision and restricted his driving privileges for the first four months to travel for work related and counseling purposes. (Adm. Ex. 1).
On December 22, 1984, Respondent was arrested in Belvidere, Illinois for driving under the influence of alcohol, a Class A misdemeanor. On January 17, 1985 Respondent entered a guilty plea, and on February 21, 1985 he was sentenced to a one-year period of probation, which also included fourteen days of periodic imprisonment. A judgment of conviction was subsequently entered against Respondent in the matter on May 30, 1985. (Adm. Ex. 2).
Respondent was licensed to practice law in the State of Illinois on November 5, 1992.
On March 18, 2004, Respondent was arrested in Rockford, Illinois for driving under the influence of alcohol, a Class A misdemeanor. At the time of his arrest, Respondent refused all chemical testing to determine his blood-alcohol concentration. (Adm. Ex. 3).
On July 15, 2004, Respondent pled guilty to a reduced charge of reckless driving, a Class A misdemeanor. On that date, the Honorable Judge Ronald White entered a judgment of conviction and sentenced Respondent to a period of twelve months of conditional discharge. (Adm. Ex. 3).
Supreme Court Rule 761(a) provides that it is the duty of an attorney admitted in this state who is convicted in any court of a felony or misdemeanor to notify the Administrator of the
conviction in writing within thirty days of the entry of the judgment of conviction. Pursuant to Rule 761(a) Respondent was required to notify the Administrator of his reckless driving conviction on or before August 14, 2004. At no time did Respondent notify the Administrator of his misdemeanor conviction as required by Supreme Court Rule 761(a).
A report of the Rockford Police Department indicates that on July 16, 2005 a police officer observed Respondent driving a vehicle which stopped in the middle of a roadway, and then backed up and struck a parked car. Upon questioning Respondent, the officer noted a strong odor of alcohol on his breath, and that his eyes were bloodshot and glassy. A DUI task force officer who was called to the scene reported that when Respondent stepped out of his vehicle, he swayed and staggered, his speech was slurred, and he could not recite the entire alphabet. After refusing chemical testing to determine his blood-alcohol concentration, Respondent was arrested for driving under the influence of alcohol, a Class A misdemeanor. The case was docketed as 05 DT 940. (Adm. Ex. 4, 5).
On or about December 8, 2005 a Winnebago County Grand Jury issued a Bill of Indictment against Respondent, charging him with aggravated driving under the influence of alcohol, a class 4 felony. The Bill of Indictment related to Respondent's July 16, 2005 arrest in Rockford, Illinois, and was issued due to at least two previous driving under the influence offenses committed by Respondent in the State of Illinois. The matter was docketed as case no. 05 CF 3871 and was subsequently consolidated with case no. 05 DT 940. (Adm. Ex. 6).
On January 26, 2006, Respondent appeared before the Honorable Judge Ronald White in relation to case no. 05 CF 3871. Pursuant to Respondent's motion, the matter was continued to
March 16, 2006 for pre-trial. The court ruled that Respondent's appearance on March 16, 2006 would be waived if he was admitted into a treatment program. (Adm. Ex. 6).
On March 16, 2006, Respondent did not appear in relation to case no. 05 CFR 3871 and he was not admitted into a treatment program. On that date, a bench warrant was issued for Respondent's arrest. As of May 22, 2007, the date the Inquiry Panel voted a Complaint in this matter, Respondent remained a fugitive in relation to case no. 05 CF 3871. (Adm. Ex. 6).
On August 20, 2004, Janeen Kline ("Janeen") filed a Petition for Dissolution of Marriage against Respondent in the Circuit Court of Winnebago County. In her petition, Janeen sought child support on behalf of the two minor children. Respondent received service of the petition shortly after it was filed. (Adm. Ex. 8).
On September 7, 2004, Respondent and Janeen entered into a temporary agreed order whereby Respondent agreed to pay $100 a week for child support, $38 a week for daycare, $22 a week as his contribution for medical insurance, and one-half of all insurance co-pays and expenses not covered by insurance. The agreed order also enjoined both parties from dissipating, encumbering, transferring, concealing or otherwise disposing of assets without order of the court. (Adm. Ex. 8).
Between September 7, 2004 and June 8, 2006, Respondent did not pay child support for approximately eleven weeks, did not contribute to daycare and medical insurance and dissipated marital assets in the amount of $107,040.00 by transferring funds to a bank account held in his name in Costa Rica. (Ad. Ex. 7).
On June 8, 2006, Janeen filed a petition asking the court to enter a Rule to Show Cause against Respondent requiring him to show why he should not be held in indirect civil contempt
for failure to comply with the terms of the agreed order entered on September 7, 2004. Specifically, Janeen charged that Respondent had failed to pay child support for approximately eleven weeks and had failed to contribute towards daycare and medical insurance. In addition, Janeen alleged that Respondent liquidated all accounts, including life insurance, and left the area with no intentions of returning. (Ad. Ex. 8, 9).
On June 15, 2006, Judge Brian Shore issued a Rule to Show Cause requiring Respondent to appear on July 27, 2006 and show cause why he should not be held in contempt of court for failure to abide by the previous orders of the court. The show cause order further provided that a bench warrant would be issued for Respondent's arrest if he failed to appear on that date. The Rule to Show Cause was mailed to Respondent at his last known business and home addresses in Rockford, Illinois. On July 27, 2006 Respondent did not appear in relation to the Rule to Show Cause issued against him and a bench warrant was issued for his arrest. (Adm. Ex. 8).
On September 1, 2006, Judge Shore entered a Judgment for Dissolution of Marriage finding that Respondent was in arrears in child support, medical expenses, daycare, and insurance, and that he had dissipated marital assets in the amount of $107,040.00 and transferred those funds to a bank account held in his name in Costa Rica. The Judgment also included a finding that Respondent was in contempt of court. (Adm. Ex. 8).
As of May 22, 2007, the date the Inquiry Panel voted a complaint in this matter, Respondent remained a fugitive in relation to the divorce matter.
Testimony of Dr. Stafford Henry
Dr. Stafford Henry, a physician certified in the fields of general psychiatry, forensic psychiatry and addiction psychiatry, testified that he maintains a private practice and also serves as Medical Director of the Multi-Disciplinary Assessment Program at Resurrection Behavioral
Health. In August 2005, at the request of the Administrator, Dr. Henry interviewed Respondent and reviewed documents, including Respondent's sworn statement. He then prepared a report of his evaluation. (Tr. 20-25, Adm. Ex. 10, 11).
Dr. Henry testified that he found Respondent to be very candid about his alcohol dependence, which began at the age of fifteen. Respondent informed Dr. Henry that, while serving in the army in the early 1980s, he entered an outpatient chemical dependency program, but was unable to abstain from using alcohol and was discharged from the army. When Respondent entered law school in 1989, his alcohol use progressed. Following law school, he drank regularly and admitted to driving under the influence of alcohol. Since 2000 he has been "getting drunk" two times per week and has been unsuccessful in his attempts to curtail and discontinue his use of alcohol. According to Respondent, his heaviest period of alcohol use occurred after he separated from his wife in 2003. Dr. Henry and Respondent discussed Respondent's arrest on four occasions for driving under the influence of alcohol. With respect to the most recent arrest in July 2005, Respondent reported having consumed "five beers and two shots" prior to operating his automobile. (Tr. 25-29; Adm. Ex. 11).
Dr. Henry noted that Respondent also described a history of depression. His symptoms included loss of appetite, sleep disturbance, crying spells, passive suicidal thoughts, an aversion to going to work, and decreased energy and concentration. (Tr. 29; Adm. Ex. 11).
Dr. Henry diagnosed Respondent as suffering from alcohol dependence, major depressive disorder, and sleep apnea. He concluded that Respondent was in need of immediate and intensive chemical dependency treatment, which would include a residential or day program. Further, during the treatment, Respondent should be seen by a psychiatrist and undergo a sleep study. Dr. Henry advised that after completion of the intensive treatment, Respondent would
need follow-up care including attendance at 12-step meetings, submission of urine samples for toxicology screening, and maintaining contact with a sponsor. He felt that Respondent should also be under the care of a psychiatrist. (Tr. 30-33; Adm. Ex. 11).
Dr. Henry opined that, without appropriate treatment, Respondent's prognosis is "quite poor" due to his long history of alcohol use and his depression. He noted that individuals with psychiatric illness have a worse prognosis as they tend to use alcohol in a failed attempt to self-medicate. Such action is self-defeating because it makes the drinking and depression worse. (Tr. 33-35).
Dr. Henry believed that Respondent's impairment places him at risk of being unable to consistently fulfill his professional responsibilities within prevailing professional standards. He pointed out that, by Respondent's own admission, his use of alcohol had adversely affected his ability to consistently conform to the Rules of Professional Conduct. (Tr. 35; Adm. Ex. 11).
The Administrator reported that Respondent has not been previously disciplined by the Illinois Supreme Court or any Board of the Commission.
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). In the event of an attorney's criminal conviction, Supreme Court Rule 761(f) states that the conviction is conclusive evidence of the attorney's guilt of the crime. Even if the attorney was not charged with or convicted of a
crime, however, misconduct may be found as long as the criminal conduct is proved by clear and convincing evidence. In re Rolley, 121 Ill.2d 222, 223, 520 N.E.2d 302 (1988).
Having considered the Complaint, Respondent's failure to appear or participate in these proceedings in any manner, the order of November 6, 2007 by which the allegations of the Complaint were deemed admitted, and the evidence presented 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 (Counts I, II);
failure to notify the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction in violation of Supreme Court Rule 761(a) (Count I);
conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) (Count III);
conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (Counts I - III);
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. (Counts I - III).
With respect to Count III and Respondent's actions during his divorce proceedings, we do not find that the charge of committing a criminal act in violation of Rule 8.4(a)(3) was proved by clear and convincing evidence. That charge was predicated on the fact that Judge Brian Shore found Respondent to be in contempt of court. While counsel for the Administrator characterized the contempt finding as "criminal" in nature, we find nothing in the record to support that interpretation. The Petition to Show Cause which was filed by Janeen Kline requested a finding that Respondent be held in "in direct civil contempt," and the Judgment of Dissolution, which contains the contempt finding, is silent as to the particular type of contempt found. We note that
while the Illinois Supreme Court has recognized the difficulty in distinguishing between criminal and civil contempt, People v. Warren, 173 Ill.2d 700, 671 N.E.2d 700 (1996), cases have typically held that a finding of criminal contempt must be preceded by notice of the criminal nature of the proceedings. Alltop v. Alltop, 203 Ill.App.3d 606, 561 N.E.2d 401 (4th Dist. 1990) (initial pleading must be entitled "petition for adjudication of criminal contempt," rather than "petition for rule to show cause"). See also In re Marriage of Morse, 240 Ill.App. 3d 296, 607 N.E.2d 632 (2d Dist. 1993) (outlining procedural safeguards which must be in place before a finding of criminal contempt can be made). On the basis of the record in this case, we cannot conclude that Respondent was found to have engaged in criminal contempt.
Having found that Respondent engaged in wrongdoing, we must determine the appropriate discipline warranted by the misconduct. In determining the proper sanction, we consider the purposes of the disciplinary process. The goal of these proceedings is not to punish but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 623 N.E.2d 300 (1993). Another factor for consideration is the deterrent value of attorney discipline and the need to impress upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill.2d 515, 645 N.E.2d 906, 912 (1994).
We also take into account those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill.2d 380, 583 N.E.2d 526, 535 (1991). By failing to appear at the hearing, Respondent forfeited his opportunity to present any evidence of mitigating circumstances. The Administrator did report, however, that Respondent has not been previously disciplined.
In aggravation, we consider the harm or risk of harm caused by Respondent's misconduct. See In re Saladino, 71 Ill.2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care). In this case Respondent's DUI convictions are evidence that he has placed the public at risk of harm by driving while impaired by alcohol. Further, Respondent's ex-wife and children have suffered financial harm by Respondent's dissipation of assets.
As another aggravating factor, we consider the lack of any evidence that Respondent is able to curtail his use of alcohol or that he is engaged in any type of treatment program for his alcohol dependence or depression. See In re Decristofano, 95 CH 748, M.R. 13250 & 13003 (January 30, 1997) (Hearing Board, in report approved by the Supreme Court, considered attorney's continued abuse of alcohol as aggravating circumstance). See also In re Olds, 96 CH 545, M.R. 15487 (March 23, 1999) (Review Board, in report approved by the Supreme Court, viewed continued use of alcohol by attorney who was admitted alcoholic to be an aggravating factor.)
Respondent's failure to attend and participate in these proceedings, which did not surprise us considering his fugitive status, further aggravates his misconduct. By his absence he has demonstrated a complete indifference to his own professional fate and a profound disrespect for the disciplinary process. See In re Brody, 65 Ill.2d 152, 357 N.E.2d 498, 500 (1976) (an attorney's failure to cooperate in his or her own disciplinary proceeding demonstrates a want of professional responsibility and is a factor to be considered in aggravation for the purpose of determining an appropriate sanction). Further, Respondent's departure from this country and his failure to register with the Commission are clear indications that he has little interest in serving clients or maintaining a practice in this State.
Respondent engaged in criminal conduct, failed to report a conviction to the Administrator, dissipated marital assets, reneged on his financial obligations with respect to his children, and is subject to two warrants for his arrest. His conduct prejudiced the administration of justice and brought the legal profession into disrepute. The Administrator argued that Respondent's acts, coupled with the aggravating factors, warrants disbarment. After reviewing the misconduct and the cases cited in support of that suggestion, we agree with the Administrator's assessment.
With respect to Respondent's criminal acts of driving while intoxicated, we consider In re Moore, 99 CH 36, M.R. 17486 (May 25, 2001). In that case the attorney was suspended for one year until further order of the Court for engaging in criminal conduct and failing to report his criminal convictions to the ARDC. His offenses included a reckless driving conviction, two DUI convictions, criminal contempt of court for appearing before a judge in an intoxicated state, and a felony conviction for aggravated driving with a breath alcohol concentration of .08 or more. Respondent, who had practiced in excess of 43 years without prior discipline, appeared at his hearing and presented evidence of pro bono activities. See also In re Law, 00 CH 53, M.R. 17664 (November 28, 2001) (attorney, who did not appear at his hearing, was suspended for one year until further order of the Court for engaging in the following criminal acts during a four year period: driving under the influence on three occasions, reckless driving, driving while license was revoked, obtaining lodging without paying, resisting a police officer, and violating probation).
With respect to Respondent's dishonesty in dissipating assets contrary to a court order, In re Olds, 96 CH 545, M.R. 15487 (March 23, 1999) is instructive. In that case the attorney was disbarred for engaging in a flagrant pattern of deceit towards his wife and children by dissipating
marital assets, violating court orders over a three-year period, and engaging in insider trading. The attorney participated in the proceedings, but suffered from depression and was an admitted alcoholic who nonetheless continued to drink alcohol. See also People ex. Rel. Chicago Bar Ass'n v. Templeman, 363 Ill. 152, 1 N.E.2d 850 (1936) (attorney who converted funds from an estate, failed to repay the estate after being ordered to do so by the probate court, was found in contempt, avoided service and left the State after being granted bail, and elected not to appear at his disciplinary proceeding was disbarred).
While Respondent's misconduct did not relate to any client matters and he has no previous orders of discipline, we believe his failure to conform his actions to orders of the court, to the laws of this State, and to the Rules of Professional Conduct seriously demeans the integrity of the legal profession and poses a risk of significant harm to the public should he attempt to resume his practice in Illinois. His flight in the face of pending charges, failure to register with the Commission, and untreated alcohol addiction and depression further indicate his lack of fitness to practice law.
Having considered the misconduct, the mitigating and aggravating factors, and the relevant case law, we recommend that Respondent Jeffrey Arlan Kline be disbarred.
Date Entered: March 20, 2008
|Keith E. Roberts, Jr., Chair, with Nam H. Paik and Kenneth A. Peters, concurring.|