Filed January 23, 2008
In re Daniel Cass Mills
Commission No. 07 SH 02
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) committing criminal acts that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects; 2) engaging in conduct that is prejudicial to the administration of justice; and 3) 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)(3) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
RECOMMENDATION: Suspension from the practice of law for two (2) years and until further order of the Court.
DATE OF OPINION: January 23, 2008.
HEARING PANEL: Leo H. Konzen, Randall B. Rosenbaum, Richard Corkery.
RESPONDENT'S COUNSEL: Stephen R. Kaufmann.
ADMINISTRATOR'S COUNSEL: Peter L. Rotskoff.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
DANIEL CASS MILLS,
Commission No. 07 SH 2
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on October 12, 2007, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois before a Hearing Board Panel consisting of Leo H. Konzen, Chair, Randall B. Rosenbaum, lawyer member, and Richard Corkery, public member. The Administrator was represented by Peter L. Rotskoff . The Respondent appeared at the hearing and was represented by Stephen R. Kaufmann.
On February 6, 2007, the Administrator filed a one-count Complaint against the Respondent. The Complaint alleged that the Respondent, while employed as an Assistant State's Attorney in Sangamon County between February 7, 2005, and January 26, 2006, purchased, possessed and used cocaine and cannabis on multiple occasions. Based upon the facts set out in the Complaint, the Administrator alleged that the Respondent engaged in the following misconduct: (a) committed criminal acts, possession and use of cocaine and cannabis, in violation of 720 ILCS 570/402 and 720 ILCS 550/4, 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; and (b) engaged in conduct prejudicial to the
administration of justice, in violation of Rule 8.4(a)(5); 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 Respondent filed an Answer on March 9, 2007, and an Amended Answer on July 2, 2007. In his Amended Answer the Respondent admitted some of the factual allegations of the Complaint and denied others. He admitted in his Amended Answer that he was employed as an Assistant State's Attorney in Sangamon County between February 7, 2005, and January 26, 2006; that while so employed in 2005, he purchased, possessed, and used cocaine and cannabis on multiple occasions; that on some occasions he used cocaine and cannabis with another Assistant State's Attorney; and that after a person from whom he had purchased cocaine was arrested in November 2005, the Respondent purchased cocaine from another source on three occasions and continued to use cocaine with the other Assistant State's Attorney. The Respondent neither admitted nor denied the allegations of misconduct.
The Administrator presented the testimony of the Respondent as an adverse witness, and Administrator's Exhibits 1 and 2 were received into evidence. (Tr. 26-27) The Respondent testified in his own behalf, presented the testimony of eight witnesses, and presented the deposition testimony of other two witnesses. The Respondent's Exhibits 1 through 5, and 7 through 9 were received into evidence. (Tr. 68, 99, 118, 175-76, 178)
The Respondent testified that he was born on August 26, 1967. He resided with his parents in Virginia, Illinois until he was 16 years of age when they moved to Springfield. He graduated from Southern Illinois University in 1990, and held various jobs before entering law
school. He attended and graduated from the Thomas M. Cooley Law School in Lansing, Michigan. He became licensed to practice law in Illinois in 1996. His father is an attorney and a United States District Judge, on senior status. His uncle and grandfather were also attorneys. (Tr. 11, 120-23)
The Respondent was married to Melissa for five years. Their marriage was dissolved in July 2007. The Respondent said that his ex-wife had drinking problems, and it was "incredibly stressful." He explained that she got violent when she drank, which was "all the time." She reached the point where she only came out of her room to get liquor. A couple days before Christmas 2006, Melissa attacked him with a hammer. He obtained a restraining order and had her removed from the house. He acknowledged that his own conduct, as well as the numerous newspaper articles about him, "drove her into a deep depression and made her hit the bottle pretty hard." (Tr. 119-20)
Following his admission to the bar, the Respondent was an Assistant Illinois Attorney General, in the General Law Division, for about three years. He was then an associate at the law firm of Hinshaw Culbertson. When asked if he was fired from the foregoing position, the Respondent said "no," it was "more of a mutual parting of the ways." For the next four years, he was in private practice, working out of his home. In December 2003, the Respondent was hired as an associate at the Chicago law firm of Romanucci and Blandin. When asked if he was fired from the foregoing position the Respondent said "Yeah. Well, basically we had a probationary period, and they didn't go past the probationary period." (Tr. 17-18)
From February 1, 2005, until January 26, 2006, the Respondent was employed as an Assistant State's Attorney in Sangamon County. He was assigned to the traffic and misdemeanor division and, in that position, he prosecuted possession of marijuana cases and drug
paraphernalia cases, among others. As a prosecutor, he had authority to dismiss cases. While he dismissed numerous traffic charges, he never dismissed a marijuana case. (Tr. 13-16)
The Respondent was suspended during the final week of his employment as an Assistant State's Attorney for "using my judgment on a DUI case." He explained that there was a "poor arrest" and "we were going to lose." He "figured let's go ahead and make something out of a loser," and gave the defendant the option of pleading guilty to reckless driving and paying a fine of $2,500. About a month following the guilty plea, the defendant was involved in a traffic accident while he was drunk. When it was discovered that the Respondent had reduced the first charge, the State's Attorney, John Schmidt, suspended him. The Respondent denied that he had been specifically told by a supervisor not to reduce the above charge or that he violated an office policy by not getting permission to reduce a DUI charge to reckless driving. (Tr. 16-17, 127-28)
On January 26, 2006, while the Respondent was at his home serving his suspension, an investigator from the State's Attorney came to his residence and said that Mr. Schmidt wanted to see him immediately. The investigator said that Mr. Schmidt "insisted on seeing me, so I didn't have time to shower." The Respondent put on jeans and a sweatshirt, and drove to the County Building. Mr. Schmidt gave the Respondent the option of resigning or being fired. The Respondent said he chose to resign because "I didn't want to embarrass the [State's Attorney's] office." Thereafter, Mr. Schmidt would not allow the Respondent to use the employee elevators. When the Respondent left through the public exit, "there was all the TV cameras, with me not even showered, with a dirty sweatshirt on because I was drug in at his whim." Also, "DEA and the State Police [were there] with their subpoenas to a Grand Jury." (Tr. 126, 128-29)
About 11:00 a.m. on January 1, 2006, State's Attorney Schmidt issued a press release about the Respondent. On the following day a newspaper article referred to the Respondent as
"part of the cocaine ring." Similar articles appeared thereafter. (Resp. Ex. 4 to 4u) The Respondent said that he does not even know any of the people involved in a cocaine ring. (Tr. 129-30, 139, 149-51)
Before the Respondent returned home after his resignation, his father telephoned him and inquired about the situation. Apparently his father had been informed of the matter by the U.S. Attorney and an Assistant earlier that day. The Respondent had not previously told his father about his use of cocaine or cannabis. (Tr. 130-31, 156)
Since the end of January 2006, the Respondent has not earned any income from the practice of law. He received four personal injury cases from another attorney, but the cases were given back to that attorney. The Respondent is not currently practicing law. (Tr. 12-13, 138-39)
The Respondent said that he would "stand on my answer that's filed in this case," in which he acknowledged some misconduct. When asked during his testimony if he had purchased and used cocaine or marijuana while he was employed as an Assistant State's Attorney, the Respondent asserted Fifth Amendment rights and refused to answer. (Tr. 19-20, 142, 146, 147-48)
The Respondent pointed out that he has never been arrested or caught with any drugs. "When confronted with the situation that I'm in, I immediately was a stand up guy… [and] told the truth." He agreed to cooperate with federal authorities. On February 7, 2006, he and the U.S. Attorney entered into an agreement, whereby the Respondent was granted "conditional direct use of immunity" in return for his cooperation. (Resp. Ex. 2) The Respondent said that he has cooperated fully with federal authorities and has "assisted in people going to prison." However, he feels that he has "not gotten the agreement that was bargained for." (Tr. 24-25, 131-35)
The Respondent said that he, as well as his attorney, "assumed, well, wrongly" that the federal authorities would not refer his case to state prosecutors. He acknowledged that the Respondent's Exhibit 2 does not say that federal authorities are not going to prosecute. The federal authorities ultimately referred the matter to State's Attorney Schmidt for possible prosecution. A special prosecutor, Mr. Zalar, was appointed. The special prosecutor has had the case for 13 or 14 months, and has not filed any criminal charges. The Respondent acknowledged that Mr. Zalar, in a letter dated May 16, 2007, agreed not to use the Respondent's testimony in this disciplinary matter during the State's case in chief in any criminal prosecution of the Respondent. (Adm. Ex. 2) Nevertheless, the Respondent voiced concern about whether Mr. Zalar would honor the agreement. (Tr. 11-12, 131-33, 135-36, 148-49)
When asked if his conduct (purchasing and using cocaine and cannabis while employed as an Assistant State's Attorney) brought the legal profession into disrepute, the Respondent said "I don't think the profession has been tarnished just because one person, one lawyer, has a - had a substance abuse issue." He also said that "I never compromised my position" as an Assistant State's Attorney and "never once dismissed any marijuana tickets or any paraphernalia tickets." The Respondent further stated that the public does not need to be protected from him. (Tr. 23-25, 125, 144-45)
The Respondent acknowledged that he "brought shame on my family and myself." He said he is remorseful and "would do anything to reverse time and not use those drugs." He went on to say that drugs "ruin lives, and I am a walking example of that." When asked if his remorse was really for getting "caught," he responded "no," adding that it was a "good thing" because it "cleaned me up" health-wise, and now his "mind is clear." (Tr. 23-24, 144, 151-52)
The Respondent said that he has not used cocaine or cannabis since January 26, 2006, and that he has not been prescribed any medication by a physician. When asked if he last used cocaine in December 2005, the Respondent asserted Fifth Amendment rights and refused to answer. Also, when asked if he has been diagnosed as having cocaine, cannabis, or alcohol dependence the Respondent declined to answer based on "his privacy rights." (Tr. 137-38, 152-55)
The Respondent also voiced the opinion that he has "cooperated fully" with the ARDC, but that the result of his cooperation has been "absolutely nothing." (Tr. 24-25, 141-44)
The Respondent further testified that he has a "bad" reputation since the information about him was disclosed in January 2006. He also noted that he has been receiving death threats from "ring leaders of the cocaine ring." He mentioned that he was formerly active in the Chicago Bar Association and the Young Lawyers Association. He was previously involved in the Boy Scouts, was an Eagle Scout, and still provides financial support to the Boy Scouts. He said he thought a censure would be the appropriate discipline for him. (Tr. 20-21, 138-40, 143-44)
Mr. Grimaldi testified that he is an attorney and currently his office is in Lincoln, Illinois. He was previously an Assistant State's Attorney in Sangamon County, and held that position the entire time that the Respondent was an Assistant State's Attorney in that office. Both of them were assigned to the traffic and misdemeanor section. (Tr. 33-34, 41-42)
Mr. Grimaldi said he observed that the Respondent performed his job well, was an aggressive prosecutor, never gave breaks to drug dealers, and was never impaired while working.
Mr. Grimaldi further stated that he never heard anything negative about the Respondent's honesty, trustworthiness, or fitness to practice law. (Tr. 35, 37-39)
Mr. Shaffer testified that he has been an attorney since 1970. His office is in Springfield. He first met the Respondent about 18 months ago, after the Respondent left the State's Attorney's office. Shaffer asked the Respondent to be co-counsel on about five personal injury cases. The Respondent did so, met with clients, and took some depositions. Shaffer said he thought the Respondent did "an excellent job." Recently, the Respondent gave the cases back to Shaffer. (Tr. 43-46)
Mr. Shaffer further testified that the Respondent has a reputation in the community for being honest, trustworthy, and fit to practice law. (Tr. 47)
Mr. Wise testified that he has been an attorney since 1984, his office is in Springfield, and he primarily does criminal defense work. He dealt with the Respondent when the Respondent was an Assistant State's Attorney and negotiated about 20 to 30 cases with him. Wise said the Respondent was an aggressive prosecutor, and Wise never observed him advancing the interest of drug trafficking. Also, Wise never saw the Respondent impaired in any way while on the job. (Tr. 48-50, 52)
Mr. Wise further testified that the reputation of the Respondent for honesty, trustworthiness, and fitness to practice was very good. (Tr. 51-52)
Judge Braud testified that he was recently appointed as Associate Circuit Judge. He previously had an active criminal defense practice for about five years. (Tr. 158-59)
While handling traffic or misdemeanor matters as a defense attorney, Judge Braud had occasion to deal with the Respondent. Judge Braud said he never observed the Respondent to be under the influence of alcohol or drugs. Finally, Judge Braud said that the Respondent had a reputation for being honest, trustworthy, and fit for his job. (Tr. 159-62)
J. William Roberts
Mr. Roberts testified that he is currently managing partner of the Hinshaw Culbertson Law Firm. He formerly served as State's Attorney for Sangamon County from 1979 to 1986, and as United States Attorney from 1986 to 1993. He also testified that the current State's Attorney of Sangamon County, John Schmidt, worked for Mr. Roberts in the United States Attorney's Office. (Tr. 77-82)
Mr. Schmidt testified that he has been the State's Attorney of Sangamon County since 1999. The Respondent was an Assistant State's Attorney in Mr. Schmidt's office from February 2005 to January 26, 2006. He was assigned to the traffic and misdemeanor division. In December 2005, Mr. Schmidt suspended the Respondent for five days for "his mishandling of a DUI case." The Respondent was "specifically told not to dismiss it," but to "try it" and "not reduce it." Nevertheless, the Respondent reduced the DUI charge to reckless driving. The Respondent was given a memo that he was "not to do that again" and "he was told that his attendance needed to improve." (Tr. 91-92, 100-01)
Also in December 2005, Mr. Schmidt received information about the Respondent from the United States Attorney, an Assistant, and a DEA agent. At that time, Mr. Schmidt believed there was insufficient information to take action against the Respondent. Mr. Schmidt asked the federal authorities to keep him advised. On January 25, 2006, Mr. Schmidt had another
conversation with either the United States Attorney or his Assistant, and was told that a subpoena was going to be issued for the Respondent to appear before a Grand Jury. Mr. Schmidt determined that this was inconsistent with the Respondent's employment as an Assistant State's Attorney. (Tr. 92-96)
On January 26, 2006, Mr. Schmidt called the Respondent into his office, told him about the information inconsistent with his employment, and asked the Respondent to resign. The Respondent said he understood and signed the letter of resignation that Mr. Schmidt had prepared. (Tr. 92, 103-04)
Mr. Schmidt said that he never observed the Respondent to be impaired while on the job and he is not aware of "any inappropriate deals" the Respondent made for "anybody involved in the drug trade." (Tr. 102-03)
In a letter dated June 28, 2006, the United States Attorney referred the Respondent's criminal matters to Mr. Schmidt's office. (Resp. Ex. 5) Mr. Schmidt then had a special prosecutor appointed because the matter involved a former employer of his office. (Tr. 98-99)
Mr. Elmore testified that he is an attorney and represents the Respondent in the criminal matters. Mr. Elmore said that the Respondent has the reputation of being a "very honorable, ethical, [and] fair-minded person." (Tr. 105-07)
Mr. Elmore identified what he described as the "use immunity letter" for the Respondent from the United States Attorney's Office. (Resp. Ex. 2) The letter was signed by Elmore, the Respondent, and Assistant United States Attorney Esteban Sanchez. Mr. Elmore said there was discussion at the time the letter was signed, that both he and the Respondent asked about whether the criminal matter would be referred to the Illinois authorities for prosecution, and that Sanchez
assured them that federal authorities would not refer it to Illinois authorities. Mr. Elmore acknowledged that no such assurance is stated in the letter, and that the letter states that "no oral agreements are binding on the parties." There has been no contention that the Respondent has failed to comply with the terms of the immunity letter. (Tr. 107-09, 113, 116-17)
In June 2006, the United States Attorney's Office declined prosecution and referred the prosecution of the Respondent to State's Attorney John Schmidt. (Resp. Ex. 5) Mr. Elmore said he was surprised because he had never seen this happen after the United States Attorney has given assurance that a case would not be referred out. A special prosecutor, Mr. Zalar, was appointed and no action has been taken in the criminal matter. (Tr. 113-15, 117)
Mr. Elmore acknowledged that the "use immunity letter" (Resp. Ex. 2) does not state that the Respondent will not be prosecuted by the federal government. Also, he said there was no agreement not to refer the Respondent's conduct to the ARDC. (Tr. 115-16)
Rodger A. Heaton
Mr. Heaton testified by evidence deposition on October 9, 2007. He has been the United States Attorney for the Central District of Illinois since December 2005. An agreement was reached between the United States Attorney's Office and the Respondent on September 28, 2007 (Resp. Ex. 3) as to the scope of Mr. Heaton's testimony. (Resp. Ex. 8, p. 5, 11-14, 16-17)
Mr. Heaton said that on or shortly before January 26, 2006, he had a conversation with John Schmidt, the State's Attorney of Sangamon County. During the conversation, Mr. Schmidt stated that the Respondent was either going to resign or would be terminated from the position of Assistant State's Attorney. The Respondent is the son of Federal District Court Judge Richard Mills. Mr. Heaton did not want Judge Mills to "be blindsided by the news" and, as a "courtesy," Mr. Heaton and Esteban Sanchez met with Judge Mills. They told Judge Mills that his son's
name had come up in connection with an investigation and that he was going to resign or be terminated from his employment with the State's Attorney. (Resp. Ex. 8, p. 29-30, 32-33, 38-39)
Mr. Heaton said that if any information had been given to Mr. Schmidt from the federal government regarding the Respondent, the information would have come from either Mr. Heaton or Mr. Sanchez. (Resp. Ex. 8, p. 37, 40)
On February 7, 2006, an immunity agreement was reach between the United States Attorney's Office and the Respondent. Mr. Sanchez signed the letter on behalf of the United States Attorney. (Resp. Ex. 2) Mr. Heaton did not know whether the Respondent did or did not comply with the terms of the agreement. Mr. Heaton said he recalled asking Mr. Sanchez "whether he had made any representations to [Respondent's counsel] beyond those in our standard conditional direct use immunity proffer letter, and he told me no." (Resp. Ex. 8, p. 17-19, 24-25)
In May 2006, the Respondent's matter was transferred to the United State's Attorney in the Southern District of Indiana. (Resp. Ex. 1) Sometime in the summer of 2006, Mr. Heaton learned that the United States Attorney in Indiana decided not to pursue prosecution of the Respondent. (Resp. Ex. 8, p. 16, 44-47, 51)
Joshua James Minkler
Mr. Minkler testified by evidence deposition on October 3, 2007, that he has been an Assistant United States Attorney in Indianapolis, Indiana since 1994. (Resp. Ex. 9, p. 4-6)
In May 2006, the case pertaining to the Respondent was transferred from the Central District of Illinois to Mr. Minkler. (Resp. Ex. 1) Mr. Minkler was provided with a copy of an immunity agreement pertaining to the Respondent. (Resp. Ex. 2) He said that he did not have an understanding that Esteban Sanchez had told the Respondent the federal immunity grant also
applied to Illinois and Sangamon County. He added that neither the Respondent nor his attorney told him about such a statement by Sanchez. Mr. Minkler never took the position that the Respondent had violated the terms of the immunity agreement. (Resp. Ex. 9, p. 7-8, 10-12, 19, 21-24, 31, 36-37)
In June 2006, Mr. Minkler sent a letter to John Schmidt, Sangamon County State's Attorney (Resp. Ex. 5), stating that the United States Attorney had declined to prosecute the Respondent and that matter was being referred for Mr. Schmidt to take any action he saw fit. (Resp. Ex. 9, p. 33-35)
Judge Mills testified that he has been a United States District Judge for the Central District of Illinois for more than 22 years. He is also the father of the Respondent. (Tr. 164-65)
On the morning of January 26, 2006, Mr. Heaton and Mr. Sanchez asked to meet with him. When they met, Mr. Heaton said he had the unpleasant task of informing Judge Mills that his son was the subject of an investigation into drugs, and that the Respondent was going to be terminated as an Assistant State's Attorney at noon. This was the first time Judge Mills was aware of the Respondent's use of drugs. Judge Mills said he never saw any sign that his son was using cocaine or other illegal drug. (Tr. 165-66)
On June 12, 2006, Judge Mills had a meeting with State's Attorney John Schmidt. During their meeting, Judge Mills asked whether there was going to be any state criminal charges against the Respondent, and Mr. Schmidt replied that there were not. (Tr. 168-69)
Judge Mills encouraged the Respondent to cooperate with the federal government and with the ARDC. In fact, the Respondent signed up on-line with the Lawyer's Assistant Program (LAP), but this "hasn't come to fruition of any kind." (Tr. 170-71)
Judge Mills said he and his wife are devastated by this. However, they are a support group for their son, and have helped him emotionally and financially. The Respondent has been "horribly depressed," as well as angry and resentful by the way he has been treated. Judge Mills believes that the Respondent has learned his lesson and that the Respondent was truthful in saying he has not used cocaine or cannabis since January 2006. (Tr. 167-68, 172-73)
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 Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 972 (2006). This standard requires a high level of certainty, greater than a preponderance of the evidence but less than 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).
Additionally, an admission in a pleading is a formal judicial admission that is conclusively 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. 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). 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. In re Cagle, 05 SH 23, Hearing Board Report at 35 (Hearing Board Report approved in M.R. 21355, March 19, 2007); In re Pennock, 06 SH 06, Hearing Board Report at 12 (Hearing Board Report approved in M.R. 21442, March 19, 2007); In re Petit, 06 SH 30, Hearing Board Report at 15 (Hearing Board Report approved in M.R. 21735, September 18, 2007).
The following facts were admitted by the Respondent in his Amended Answer and/or established by the testimony. Between February 7, 2005, and January 26, 2006, the Respondent was employed as an Assistant State's Attorney for Sangamon County, Illinois, and was assigned to the traffic and misdemeanor division. In that position, he prosecuted misdemeanor drug cases. While so employed, the Respondent purchased, possessed, and used cocaine on multiple occasions in 2005. On some occasions, the Respondent and another Assistant State's Attorney, John Kelley, purchased cocaine together from Gerald Vondebur, usually in increments of two grams per purchase. On one occasion, the Respondent purchased cocaine at Vandebur's house, and on two occasions he purchased cocaine from Vondebur at a tavern in Springfield. On some occasions the Respondent and Kelly used cocaine together. Also in 2005, the Respondent purchased cocaine in Chicago on a few occasions. Further, the Respondent purchased and used cannabis on various occasions in 2005. After Vondebur was arrested in November 2005 and charged in federal court with conspiracy to distribute a controlled substance, the Respondent purchased cocaine from another source on approximately three occasions and continued to use cocaine with Kelley.
Based upon the Respondent's conduct set out above, there is no doubt that he violated Rule 8.4(a)(3) of the Rules of Professional Conduct. The Supreme Court has made it clear that even a one-time possession of a relatively small amount of an illegal substance constitutes ethical
misconduct. For example in In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1, 2-3 (1985), the Court stated:
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." See also In re Lunardi, 127 Ill. 2d 413, 416, 420-21, 537 N.E.2d 767, 769-70 (1989)(possession of less than 30 grams of cocaine); In re Peterson, 98 SH 19, M.R. 15331 (February 1, 1999) (possession of not more than 2.5 grams of cannabis, a Class C misdemeanor); In re Baril, 00SH 14, M.R. 18162 (September 19, 2002) (possession of less than 2.5 grams of cannabis).
In the case before us, the Respondent's possession of cocaine and cannabis was not the result of a momentary lapse of judgment or occurred only in a single incident. Rather, his criminal conduct consisted of an ongoing pattern of purchasing, possessing, and using both cocaine and cannabis over, at least, a several month period of time. Consequently, it is clear that the criminal conduct committed by Respondent demonstrated a lack of respect for the law and reflects adversely on his fitness as a lawyer.
The Respondent pointed out that he has not been arrested, charged or convicted of any criminal offense arising from the possession of cocaine or cannabis. (Tr. 24, 195) However, it is well established that a finding of ethical misconduct may properly be based upon the commission of a criminal act even though the attorney was not criminally charged or convicted, as long as the criminal conduct is sufficiently established at a disciplinary proceeding. See In re Rolley, 121 Ill. 2d 222, 233, 520 N.E.2d 301, 307 (1988); In re Ettinger, 128 Ill. 2d 351, 368-69, 538 N.E.2d 1152, 1160 1989; In re Karracker, 05 SH 41, Hearing Board Report at 14-15 (Hearing Board Report approved in M.R. 21231, January 12, 2007). In the case of In In re Sims, 144 Ill. 2d 323, 324-25, 579 N.E.2d 865, 866 (1991), the Court found that a State's Attorney committed
misconduct by "engaging in illegal conduct" of possessing and using cannabis and cocaine, even though he was not prosecuted for a crime. In the case before us, the judicial admissions of the Respondent clearly and convincingly established that he committed criminal acts.
It is also well established that an attorney's commission of a criminal act, even if it was an isolated incident, constitutes conduct that tends to bring the legal profession into disrepute. For example, the attorneys in the following cases were found to have engaged in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute based upon their commission of a criminal act or acts. In In re Scarnavack, 108 Ill. 2d at 457, 459, 485 N.E.2d at 1- 2, the attorney unlawfully possessed ".46 grams of a mixture containing cocaine" on one occasion. In In re Sims, 144 Ill. 2d at 324, 579 N.E.2d at 866, the attorney was a State's Attorney from 1980 to 1985, used cannabis in the presence of others from 1979 to 1984, and possessed and used "small quantities of cocaine" from 1979 to 1982. In In re Peterson, 98 SH 19, M.R. 15331 (February 1, 1999), the attorney entered a plea of guilty to one count of unlawful possession of not more than 2.5 grams of cannabis, a Class C misdemeanor (Hearing Board Report at 3-4. 20-21). In In re Baril, 00 SH 14, M.R. 18162 (September 19, 2002), the attorney unlawfully possessed less than 2.5 grams of cannabis, a Class C misdemeanor, on one occasion (Hearing Board Report at 3-4, 32-33). Further, in In re Dempsey, 94 CH 454, the attorney was found to have engaged in misconduct based upon his plea of guilty to driving under the influence of alcohol and driving without insurance. The Hearing Board stated the following:
"Respondent's DUI conviction demonstrates his disrespect for the laws of this State and adversely reflects upon his fitness as a lawyer … Furthermore, criminal conduct by an attorney diminishes the public's confidence in the entire legal profession and therefore, the Panel finds that the Respondent's criminal conduct tends to bring the legal profession into disrepute." Hearing Board Report at 8-9 (Hearing Board Report approved in M.R. 11064, May 26, 1995)
The Respondent's misconduct was as or more egregious than the misconduct in the above cases. The Petitioner's misconduct was not an isolated incident, but involved multiple instances of purchasing, possessing, and using cocaine and cannabis, sometimes with another Assistant State's Attorney, during virtually his entire one-year career as an Assistant State's Attorney. Consequently, it is clear that the Respondent's misconduct tends to bring the legal profession into disrepute.
We further find that the Respondent's ongoing criminal conduct while he was an Assistant State's Attorney constituted conduct prejudicial to the administration of justice. In In re Sims, discussed above, the attorney was found to have engaged in conduct prejudicial to the administration of justice by possessing and using cocaine and cannabis for about five years while he was State's Attorney. The Supreme Court stated that "Sims failed to take any action in his role as State's Attorney in bringing criminal charges against those who sold and used controlled substances in his presence" and that "[t]his case involved a flaunting of the law by a prosecuting attorney over a several year period." (Sims, 144 Ill. 2d at 324-25, 579 N.E.2d at 866). Similarly in the case before us, the Respondent, a Sangamon County Assistant State's Attorney, flaunted the law and failed to take any action to notify the State's Attorney or other appropriate law enforcement officers that individuals were violating the criminal laws in his presence in Sangamon County. It seems self-evident that the citizens of Sangamon County, as well as their elected State's Attorney, should expect and require Assistant State's Attorneys to obey the law themselves and to take affirmative action to disclose the acts of others known to be violating the criminal laws.
In In re Peek, 93 SH 457 and 94 SH 369 (consolidated), M.R. 9461 (March 26, 1996), the attorney, while employed as an Assistant State's Attorney, conspired to possess with intent to
distribute cocaine and cannabis during a two-month period, June to August 1992. He was not criminally prosecuted. He was found to have engaged in conduct prejudicial to the administration of justice (Hearing Board Report at 2, 6; Review Board Report at 10). In In re Scarnavack, discussed above, the attorney unlawfully possessed 0.46 grams of cocaine on one occasion while he was in private practice, after having been an Assistant State's Attorney about 5 years earlier. He was found to have "engaged in conduct that was prejudicial to the administration of justice." (108 Ill. 2d at 458-59, 485 N.E.2d at 1- 2).
We also find the Supreme Court's decision in In re Lunardi, 127 Ill. 2d 413, 537 N.E.2d 767 (1989), instructive in two respects. First, Lunardi was charged in count I with misconduct based upon his possession of about an ounce, less than 30 grams, of cocaine. This criminal act occurred while he was in private practice, after he had served as an Assistant State's Attorney about 7 years earlier. Based upon his criminal act, he was found to have engaged in conduct prejudicial to the administration of justice. (127 Ill. 2d at 416-20, 537 N.E.2d at 768-69) Second, Lunardi was charged in Counts II and III with misconduct based upon his making two separate loans to a judge before whom he appeared. Lunardi and the judge had an "active friendship," the loans were made "solely out of friendship," and with "no improper intent." Also, there was no evidence that Lunardi ever "improperly benefited from the loans" by any treatment or ruling in a case before the judge. Lunardi was found to have engaged in misconduct, including misconduct that is prejudicial to the administration of justice. (127 Ill. 2d at 417, 430-32, 537 N.E.2d at 768, 774-75). The Supreme Court explained that, even in the absence of any improper treatment or ruling because of the loans, there was "the appearance of impropriety" and "citizens of our State would be concerned about a judge's presiding over a trial in which one of the parties is
represented by an attorney to whom the judge owes money." (127 Ill. 2d at 431-32, 537 N.E.2d at 774-75). See also In re Powell, 126 Ill. 2d 15, 27-28, 533 N.E.2d 831, 835 (1988).
Although the roles of a judge and a prosecutor are different, both must be, and must appear to be, fair and impartial in the execution of their duties. When an Assistant State's Attorney, as in this case, is engaged in an ongoing pattern of criminal activity, by purchasing and possessing cocaine and cannabis, while he is at the same time prosecuting criminal cases on behalf of the people and the State's Attorney, the administration of justice is prejudiced. The Respondent demonstrated disrespect and disobedience to the law by engaging in criminal conduct himself, failed to take action against those who he knew were unlawfully delivering cocaine and cannabis, failed to take action against another Assistant State's Attorney who he knew was unlawfully possessing cocaine and cannabis, and then continued to prosecute others for crimes similar to those he himself was committing. Clearly, there was "the appearance of impropriety" and citizens would be concerned about an Assistant State's Attorney continuing to serve as a prosecutor while engaging in criminal conduct himself. In other words, the administration of justice is prejudiced when an attorney is both a prosecutor and a criminal.
Finally, we think it is appropriate to address the exclusion of certain evidence offered by the Respondent. Prior to the hearing, the Administrator filed a Motion in Limine requesting exclusion of testimony pertaining to a purported leak of federal grand jury information about the Respondent to the news media. The Respondent filed a Response in which he asserted that the alleged leak of the grand jury information violated federal law, resulted in news stories about the Respondent, and "brought a substantial degree of humiliation upon Mr. Mills and his family and caused him what can only be described as financial devastation." The Chair granted the Motion in Limine and excluded testimony about the alleged leak of grand jury information, finding that
such testimony was "irrelevant to the issues before the Hearing panel in this case." The Respondent filed a Motion to Reconsider and argued that the foregoing testimony was appropriate mitigation. The Chair denied the Motion to Reconsider, again stating that the testimony "clearly irrelevant."
At the commencement of the hearing, Respondent's counsel made additional arguments and an offer of proof regarding the alleged leak of grand jury information and disclosures made to the news media. (Tr. 55-58; 68-73, 83-89) Respondent's counsel offered to introduce evidence to show that the Respondent did not cause the publicity which brought disrepute to the legal profession in the community or prejudice to the administration of justice, as "it was somebody else to protect their own personal political position who made public the private information about Mr. Mills." (Tr. 72) The Respondent blamed the State's Attorney and others for such "widespread publication of Dan Mills' alleged use of drugs, which but for the publication of that information . . . would have been and internal company, if you will, affair, and never have seen the light of day." (Tr. 89)
Respondent's counsel argued that evidence regarding the information disclosed to the news media and the circumstances surrounding the publication of the newspaper articles about the Respondent "goes to mitigation" and the "level of remorse suffered by a Respondent." (Tr. 56, 72) He further stated "the remorse comes from the incredible damage that he has suffered by a highly inappropriate disclosure of and publication of information in the newspaper." (Tr. 56, 58) Respondent's counsel also contended that testimony regarding discussions reporters had with the State's Attorney and others, which led to the extensive news stories about the Respondent, would show that people other than the Respondent caused the publicity that may have tended to
bring the legal profession into disrepute. (Tr. 61-62, 72, 84) The Chair ruled that the proffered evidence was irrelevant.
We do not believe the above proffered evidence was relevant to any material issue in this proceeding. The testimony regarding disclosures to the news media, whether proper or improper, would not provide a defense to or mitigate the misconduct of the Respondent because the disclosures to the news media, about his criminal conduct, obviously occurred after the Respondent had already committed the criminal acts that constituted the misconduct. Also, as mentioned above in our findings, the Supreme Court has determined that the commission of criminal acts by an attorney, and particularly a prosecutor, tends to bring the legal profession into disrepute and are prejudicial to the administration of justice. In so finding, the Court has not required proof that the attorney himself or herself was responsible for disclosing the misconduct to the news media or the public. It is obvious that most if not all attorneys who commit a criminal act would want to avoid as much publicity as possible about his or her misconduct. Thus, it is the nature of the misconduct that constitutes a violation of Supreme Court Rule 770 and ethical Rule 8.4(a)(5), not its public disclosure by the offending attorney.
As discussed in the Recommendation Section, there is a duty on Illinois attorneys to report to the ARDC criminal conduct by another attorney. Also, the fact that the filing of a disciplinary complaint against an attorney and the subsequent disciplinary proceedings are of public record would disclose the Respondent's criminal conduct. The responsibility for any adverse reaction to the legal profession rests upon the Respondent for engaging in the misconduct, rather than on those who may have reported or disclosed the misconduct. Thus, we find no merit to the Respondent's contention that the disclosure of information about his criminal
conduct to the news media by individuals other than the Respondent is a defense to or tends to mitigate the misconduct for which he was charged.
We also conclude that neither the nature of the disclosures to the news media nor the substance of the newspaper articles about the Respondent (Resp. Ex. 4-4u) was relevant. As mentioned in the Recommendation Section, a disciplinary sanction is not imposed as punishment for misconduct, but rather is imposed to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. Whether or not the Respondent was embarrassed or otherwise harmed by adverse publicity, as he testified to, is simply not a factor in the consideration of an appropriate disciplinary sanction. We also fail to see how the newspaper articles would be probative of remorse by the Respondent. As mentioned in the Recommendation Section, remorse for engaging in misconduct and any adverse effects it may have on the legal profession or administration of justice is a mitigating factor. However, remorse based upon the negative consequences to the attorney himself or herself is not the type of remorse that is a mitigating factor. However, the newspaper articles were admitted into evidence without objection (Tr. 59-60) and the Respondent was able to testify fully about remorse. While we carefully reviewed the newspaper articles (Resp. Ex. 4-4u), we gave them no significant weight, and they had no affect on our findings or recommendation in this case.
Therefore, for the reason set forth above, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct as charged in the Complaint: (a) committed criminal acts, possession of cocaine and cannabis (in violation of 720 ILCS 570/402 and 550/4), 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; and (b) engaged in conduct prejudicial to the administration of justice, in
violation of Rule 8.4(a)(5); 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 rather "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981 (2006). In determining the appropriate sanction, we are to consider the nature of the misconduct as well as the aggravating and mitigating factors. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1199-1200 (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 75, 85, 727 N.E.2d 1028, 1034 (2000); In re Gorecki, 208 Ill. 2d at 361, 802 N.E.2d at 1200.
Although 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 this case, the Administrator requested a sanction of suspension for at least one year and until further order of the court. (Tr. 188-90) The Respondent urged that a censure would be the appropriate sanction. (Tr. 206)
As discussed in our findings, the Respondent's misconduct consisted of committing multiple criminal acts of unlawfully possessing a controlled substance (cocaine) and unlawfully
possessing cannabis over a several month period, from approximately February to December 2005. Also as discussed in our findings, by committing the foregoing criminal conduct the Respondent violated three separate ethical rules. However, we do not consider the fact that three rules were violated to be an aggravating factor or a basis for recommending a greater sanction. As made clear by the Supreme Court:
"When sanctioning respondent, however, we do not count the number of ethical rules which he violated concurrently by the same conduct, and increase the severity of the sanction the higher the number. Instead, we analyze and pass judgment upon the unethical nature of respondent's conduct as a whole." In re Gerard, 132 Ill. 2d 507, 532, 548 N.E.2d 1051, 1061 (1989)
There is aggravation in this case. First, at the time the Respondent was purchasing, possessing, and using cocaine and cannabis he was employed as an Assistant State's Attorney. In fact, the criminal conduct continued, virtually, the entire time the Respondent was an Assistant State's Attorney, from February 2005 to January 2006. The fact that an attorney who unlawfully possesses cocaine or cannabis is also an Assistant State's Attorney is an aggravating factor. See In re Parker, 149 Ill. 2d 222, 234, 595 N. E. 2d 549, 555 (1992).
Also in aggravation, we find that the Respondent was not fully candid or forthright, and did not fully cooperate during this disciplinary proceeding. To his credit, the Respondent did admit in his Amended Answer that he purchased, possessed, and used cocaine and cannabis on multiple occasions in 2005 while he was employed as an Assistant State's Attorney in Sangamon County. (Tr. 142) However, he refused to provide specific details of his conduct in that regard. For example, at the hearing he declined to answer a question regarding whether he purchased and used cocaine at the time he was an Assistant State's Attorney. (Tr. 19, 146) He declined to answer a question regarding whether he purchased cocaine with another Assistant State's Attorney. (Tr. 146) He declined to answer a question about "other people" he used cocaine with. (Tr. 20) He declined to answer a question of whether he last used cocaine in December 2005.
(Tr. 146) Instead of answering the foregoing questions and explaining the circumstances of his purchase, possession, and use cocaine and cannabis, the Respondent chose to assert Fifth Amendment rights and "stand on my answer that's filed in this case." (Tr. 19-20. 146, 152)
Additionally, the Respondent claimed that he has not used cocaine or cannabis since January 26, 2006. (Tr. 138, 153) He also claimed that he has not been prescribed any medications by a physician. (Tr. 137) However, "based upon his privacy rights," the Respondent declined to answer questions regarding whether he has been diagnosed with cocaine, cannabis or alcohol dependence. (Tr. 153-55) Consequently, there was no evidence regarding the Respondent's history of drug use; the extent of such use; the affect, if any, his drug use had or may have on his mental health and ability to practice law; or to corroborate his claim of recent abstention. Evidence of this nature was relevant as to the Respondent's fitness to practice law. We note that in closing argument Respondent's counsel stated that "our alleged failure to bring in evidence of treatment and medical people to talk about [Respondent] is not our failure," but rather "[i]'s their failure" because the Administrator could compel him to be examined by medical professionals, who could then render an opinion as to the Respondent's fitness. (Tr. 196) Regardless of whether the Administrator could have utilized a procedure to obtain expert testimony, the fact remains that the Respondent was not cooperative in this regard. It is well established that an attorney has the obligation to fully cooperate with the Administrator in a disciplinary proceeding and that the failure to do so is a factor to be considered in determining the disciplinary sanction. See In re Smith, 168 Ill. 2d 269, 296, 659 N.E.2d 896, 908 (1995).
A respondent in a disciplinary proceeding is entitled to assert the privilege against self-incrimination; however, adverse or negative inferences may be drawn when a respondent does so. See In re Ellis, 97 CH 63, Hearing Board Report at 48-49 (affirmed by Review Board;
Review Board Report approved in M.R. 16744, May 17, 2000); In re Rossini, 02 CH 11, Hearing Board Report at 10-11 (Hearing Board Report approved in M.R. 18699, May 22, 2003); In re Hirschtick, 05 CH 32, Hearing Board Report at 15 (Hearing Board Report approved in M.R. 21668, September 18, 2007). Additionally, a respondent has the burden of proving mitigating circumstances. See In re Patt, 82 Ill. 2d 447, 453-54, 410 N.E.2d 870, 872-73 (1980); In re Brody, 98 CH 18, Hearing Board Report at 14 (Hearing Board Report approved in M.R. 16154, November 19, 1999); In re Ellis, 89 CH 476, Hearing Board Report at 2 (Hearing Board Report approved in M.R. 8225, May 27, 1992).
The Respondent's objections to questions seeking information about the circumstances of his misconduct, as described above, was also inconsistent with his contentions that that the Hearing Panel "needs to hear the full picture" (Tr. 119), "I have cooperated to the fullest extent" (Tr. 24-25, 144), and when "confronted with the situation that I'm in I immediately was a stand up guy. I stood up. I told the truth" (Tr. 24, 131). It is apparent that the Respondent did not testify about the full picture or provide essential details of his possession and use of cocaine and cannabis, and declined to testify as to his current treatment or use.
Also in aggravation, the Respondent demonstrated that he did not understand the seriousness of his misconduct. He insisted that he never compromised the office of Assistant State's Attorney or the trust of the public (Tr. 24, 125), and that he did not tarnish the legal profession (Tr. 23, 25). He said "I don't think the profession has been tarnished just because one person, one lawyer, has a - - had a substance abuse problem." (Tr. 23) The misconduct in this matter was not merely that an attorney had a substance abuse problem. Rather, the seriousness of the misconduct arose from the fact that an attorney intentionally violated the law on multiple occasions, by purchasing possessing, and using cocaine and cannabis, and while doing so he was
employed as an Assistant State's Attorney with the duty to prosecute criminal offenders on behalf of the People in Sangamon County. It is clear that such criminal conduct by a prosecutor is extremely serious misconduct and the Respondent should have recognized that fact.
The Respondent suggested that his criminal conduct would not have become known to the general public through the extensive newspaper articles (Resp. Ex. 4-4u) except for the disclosures by the State's Attorney and/or federal prosecutors, and, thus, he was not the cause of bringing the legal profession into disrepute. (Tr. 198-99) The first sentence of the Preamble to the Illinois Rules of Professional Conduct states that the "practice of law is a public trust." The Supreme Court has also emphasized that basic principle. See In re Smith, 168 Ill. 2d at 287, 659 N.E.2d at 904. The public could hardly have trust or confidence in the legal profession if an attorney's criminal conduct were to be kept secret and hidden from public view. This is particularly true when the attorney who is engaged in a pattern of criminal activity also holds the position of prosecutor and represents the people in criminal proceedings. In fact, the Supreme Court expressly requires in the Rules of Professional Conduct that attorneys who have knowledge of another attorney's commission of a criminal act that reflects upon his or her fitness as a lawyer to report such misconduct to the ARDC. (Rules 8.3 (b) and 8.4(a)(3)). Thus, we reject the view that the attorneys or other persons who report or otherwise disclose criminal activity by an attorney, rather than the attorney who has committed the criminal acts, are responsible for causing the legal profession to be brought into disrepute.
Finally in aggravation, we find that the Respondent did not show remorse for his misconduct. The Respondent's remorse was directed at the effect his criminal conduct and its aftermath, such as embarrassment and humiliation, have had upon himself and his immediate family. (Tr. 24, 137-40, 143-45) However, he showed no remorse for violating his oath as an
attorney, for his breach of public trust while serving as an Assistant State's Attorney, or any harm he may have caused to the legal profession or the administration of justice. For example, and unlike in this case, the attorney in In re Scarnavack, 108 Ill. 2d 456, 461, 485 N.E.2d 1, 3 (1985) "stated that he regretted the impact his misconduct has had on the legal profession. Throughout his hearing the respondent displayed regret and apologized for embarrassing his colleagues." Also, in In re Dixon, 95 CH 12, the Hearing Board found a lack of genuine remorse, stating that "[a]lthough Respondent expressed remorse at having committed the misconduct, his remorse seems to focus on the negative consequences to himself, rather that to his clients." Hearing Board Report at 40 (Hearing Board Report approved in M.R. 12640, September 24, 1996).
There is also mitigation in this case. As mentioned above, the Respondent did admit in his Amended Answer that he engaged in misconduct. (Tr. 142, 146, 195) Also, the Respondent has been an attorney since 1996 and has not been previously disciplined. He presented character witnesses who testified favorably about his job performance as an Assistant State's Attorney and his reputation for honesty and trustworthiness. (Tr. 33, 43, 48, 158) The Respondent also mentioned that he has been involved in some bar association activities and makes contributions to the Boy Scouts. (Tr. 20-21, 183) In addition, we considered in mitigation the Respondent's testimony regarding his marital difficulties and the stress it placed upon him during the period in which his misconduct occurred. (Tr. 119-20, 172) See In re Scarnavack, 108 Ill. 2d at 461, 485 N.E.2d at 3 ("Hearing Board found that Scarnavack's marital difficulties caused a lapse of judgment as to the seriousness of the offense").
In support of the request for a suspension of at least one year, the Administrator cited the cases of In re Sims, 144 Ill. 2d 323, 324-25, 579 N.E.2d 865, 866 (1991); In re Peek, 93 SH 457
and 94 SH 369 (consolidated), M.R. 9461 (March 26, 1996); and In re Stewart, 98 SH 97, MR. 15437 (February 1, 1999). (Tr. 180-81, 186-87) The Administrator's counsel pointed out that those are the only reported disciplinary cases in Illinois that involved a prosecutor's possession or delivery of illegal substances, and that they resulted in a suspension for two years, a disbarment, and a disbarment by consent, respectively. (Tr. 180-81)
In Sims, the attorney was the elected State's Attorney of Perry County from 1980 to 1985. He used cannabis in the presence of others from 1979 to 1984, and used "small quantities of cocaine" between 1979 and 1982. He did not take any action to bring criminal charges against those who sold and possessed the illegal substances in his presence. He resigned his position as State's Attorney in exchange for a promise by federal prosecutors not to indict him. The Supreme Court stated that "[c]haracter witnesses indicate that Sims' problems are behind him and that he is currently doing fine." However, the Court also stated that the "case involved the flaunting of the law by a prosecuting attorney over a several year period" and that "any sanction less that the two-year suspension recommended by the hearing board would denigrate the seriousness of his conduct and would erode public trust in the accountability of elected officials." A suspension for two years was imposed. Sims, 144 Ill. 2d at 324-25, 579 N.E.2d at 866.
In Peek, the attorney was an Assistant State's Attorney from October 1991 until September 1992. During a three-month period, June to August 1992, Peek had conversations with another person; the conversations were recorded; and Peek was found to have committed the crime of conspiring to possess with intent to distribute cocaine and marijuana. (Review Board Report at 3-4) At his disciplinary proceeding, Peek denied any involvement in drug transactions. In mitigation, there was evidence that Peek "participated in local church projects;" he "had been very active in civic clubs and associations, including the Boys Club and the United
Way, and in the Perry County Bar Association;" he cooperated with the ARDC; three character witnesses testified on his behalf; "Peek's father was an attorney, former judge, and former state's attorney;" and Peek "testified that he felt remorse for his conduct" (Review Board Report at 9; Hearing Board Report at 5). Peek was disbarred. In re Peek, M.R. 9461 (March 26, 1996)
In Stewart, the attorney's motion to strike his name from the Master Roll of Attorneys, pursuant to Rule 762(a), was allowed. The Statement of Charges filed by the Administrator stated that on three occasions while Stewart was an Assistant State's Attorney he unlawfully delivered cocaine to another. He delivered 1 gram on January 28, 1997, 2.7 grams on February 1, 1997, and 3 grams on February 7, 1997. No aggravating or mitigating factors were mentioned in the Statement of Charges. (Stewart, M.R. 15437 (February 1, 1999)). After a motion to strike an attorney's name is allowed, the attorney must wait three years before filing a petition for reinstatement to the practice of law (Supreme Court Rule 767 (a)) and "has the burden of proving, by clear and convincing evidence, that he or she should be reinstated." In re Richman, 191 Ill. 2d 238, 244, 739 N.E.2d 45, 48 (2000).
In support of a censure, the Respondent cited the cases of In re Scarnavack, 108 Ill. 2d 456, 461, 485 N.E.2d 1, 3 (1985) and In re Murphy and Campbell, 06 SH 74 and 06 SH 75 (consolidated), M.R. 21566 (May 18, 2007). (Tr. 200-01, 204-06) We believe that the facts in the foregoing cases are substantially different than those in this case.
In Scarnavack, the misconduct that resulted in a censure consisted of a single incident of possession of 0.46 grams cocaine, and the attorney was not a prosecutor at the time of his misconduct. He had been an Assistant State's Attorney about five years earlier. (108 Ill. 2d at 457-58, 485 N.E.2d at 1) As discussed above, the Respondent in the case before us engaged in a pattern of purchasing, possessing, and using cocaine and cannabis during most of the one-year
period he was employed as an Assistant State's Attorney. Similar to this case the attorney in Scarnavack had no prior discipline, was having marital difficulties, and presented character witnesses. (108 Ill. 2d at 461, 485 N.E.2d at 3) However, unlike in this case, in Scarnavack the attorney demonstrated genuine remorse. (108 Ill. 2d at 461, 485 N.E.2d at 3)
In Murphy and Campbell, the two attorneys were Assistant United States Attorneys. The misconduct that resulted in their censure consisted of failing to disclose to the defense an impeaching statement made by one of the government's witnesses. (Petition to Impose Discipline on Consent, p. 1-3) The defense learned of the impeaching statement during cross-examination of the witness. The judge found that the two prosecutors wrongfully failed to disclose the statement, but denied a motion for mistrial on the basis of lack of prejudice. (Petition to Impose Discipline on Consent, p. 3) Consequently, unlike in this case, the misconduct by Murphy and Campbell consisted of a single incident and did not involve the commission of any criminal act, let alone a pattern of criminal acts. Both Murphy and Campbell had no prior discipline; other attorneys would testify as to their good reputations; they were cooperative during the disciplinary proceedings; they acknowledged their misconduct; they expressed remorse; and they "have taken measures to review applicable rules and case law governing their obligation [to disclose exculpatory information]." (Petition to Impose Discipline on Consent, p. 4)
The misconduct of the Respondent, that is the commission of multiple criminal acts while he was employed as an Assistant State's Attorney, was much more egregious than the misconduct in Scarnavack or in Murphy and Campbell. Also, there was slightly more mitigation in Scarnavack and in Murphy and Campbell. Thus, we do not believe the foregoing cases support a sanction of censure in this case.
After considering the nature of the Respondent's misconduct, the aggravating and mitigating factors, and the purpose of a disciplinary sanction, we believe a lengthy suspension is appropriate in this case. While recognizing that each disciplinary case has unique facts, we believe that the misconduct of the Respondent is generally comparable to the misconduct of the prosecutors in the three cases cited by the Administrator (Sims, Peek, and Stewart), and that those cases support such a sanction of suspension in this case. We also believe that such a sanction is necessary to help preserve public confidence in the legal profession.
Finally, it is clear from the record that the Respondent has had a problem with cocaine and cannabis. In his Amended Answer he admitted he used both cocaine and cannabis on "multiple," "some," and "various" occasions during 2005. (Complaint, para. 3, 4, 9, 11; Amended Answer, par. 3, 4, 9, 11) The Respondent's testimony also indicated that he "had a substance abuse issue." (Tr. 23) Additionally, the Respondent's father indicated that the Respondent realized he had a substance abuse problem because he "signed up with LAP right on-line immediately." (Tr. 171) However, help from LAP "hasn't come to fruition of any kind." (Tr. 171)
We were not presented with any evidence regarding the history of Respondent's use of cocaine, cannabis, or other mind altering substances; any diagnosis of addiction or dependence, or the absence thereof; the effect that his use of such substances had or may have, if any, on his ability to practice law; whether treatment has been recommended; whether the Respondent pursued recommended treatment; whether the Respondent recognizes his substance abuse problem; whether the Respondent is currently in an appropriate treatment program; whether the Respondent's use of illegal or other mind altering drugs is in remission; and whether the Respondent is likely to relapse. As previously mentioned, the Respondent successfully objected
to the Administrator's attempt to inquire about whether he has been diagnosed with cocaine, cannabis, or alcohol dependence. (Tr. 153-55) Without any of the foregoing information, we believe it would be a disservice to the public, the Supreme Court, and the legal profession for us to recommended that the Respondent be permitted to practice law at the present time or after a fixed period of probation.
The Respondent testified that he has not used cocaine or cannabis since January 26, 2006. (Tr. 138, 153) However, we did not find the Respondent to be a credible witness. Also, it seems obvious that claims of abstinence by someone who is dependent on mind altering substances is unreliable in the absence of strong corroboration. While, the Respondent's father testified that he believed the Respondent regarding his abstention (Tr.172), such testimony was mere opinion and not based on any personal knowledge. Also, the Respondent's father was not aware that the Respondent was using cocaine or cannabis prior to being told of such fact in January 2006. (Tr. 165-67)
We believe the following statement by the Review Board in In re Olds, 96 CH 545, is applicable to this case:
"Further, the Hearing Board found that Respondent was an admitted alcoholic who nonetheless continued to drink alcohol and who suffered from emotional problems. The record contains no evidence of treatment for these problems other than Respondent's own testimony. Thus, we conclude that Respondent should be required to prove that he has sufficiently addressed these problems before he is allowed to practice law in this State." Review Board Report at 15-17 (Review Board Report approved in M.R. 15487, March 23, 1999).
Similarly, in In re Petty, 98 CH 25, the Hearing Board pointed out that "we have no evidence that the Respondent has taken steps to remedy, or even address, his alcohol problem" and recommended that the attorney be suspended until further order of the Court. (Hearing Board Report at 18-19) The Supreme Court suspended the attorney for 3 years and until further order of the Court, as recommended by the Hearing Board. In re Petty, M.R. 16607 (March 22, 2000).
In In re Taylor, 94 CH 172, the Hearing Board stated that in cases dealing with alcoholism, attorneys have been suspended with the suspensions stayed by probation when the attorneys "presented strong evidence of their rehabilitation." However, in regard to the issue of alcoholism, Taylor "offered only his own testimony and not that of any treatment professional or other corroborating witness." (Hearing Board Report at 19-20) The Supreme Court ordered Taylor suspended for six months and until further order of the Court, as recommended by the Hearing Board. (In re Taylor, M.R. 11494 (September 29, 1995).
In re Hillis, 07 SH 14, M.R. 21781 (September 18, 2007), the Supreme Court allowed a petition to impose discipline on consent and suspended the attorney for one year and until further order of the Court. The attorney was "suffering from alcoholism," "initially agreed to the Administrator's request to undergo a mental health evaluation," and "then subsequently declined to make an appointment." (Petition, p. 3)
We also note that in In re Sims, discussed above, the attorney possessed and used cannabis and cocaine while he was a State's Attorney, and was suspended for a fixed term of two years. However in Sims, the Supreme Court pointed out that "no misconduct has been claimed since 1985, a period of six years" and "[c]haracter witnesses indicate that Sims' problems are behind him and that he is currently doing just fine," (Sims, 144 Ill. 2d at 325, 579 N.E.2d at 866).
Because the Respondent's repeated use of cocaine and cannabis was the primary cause of his misconduct, and because of the importance of protecting the public, the integrity of the legal profession, and the administration of justice, we conclude that, before he is permitted to practice law, the Respondent should be required to demonstrate, at the minimum, that he has submitted to a substance abuse evaluation; that he has complied with any recommended treatment; that there
is a basis for concluding his treatment has been and will be successful; and that he is unlikely to engage in similar misconduct in the future.
Therefore, we recommend that the Respondent, Daniel Cass Mills, be suspended for two (2) years and until further order of the Court.
Date Entered: January 23, 2008
|Leo H. Konzen, Chair, with Panel Members Randall B. Rosenbaum and Richard Corkery, concurring|