Filed July 6, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
RICHARD ANTHONY JULIANO,
Supreme Court No. M.R. 24589
Commission No. 2011PR00032
REPORT AND RECOMMENDATION OF THE HEARING BOARD
A hearing on the Petition for Reinstatement of Richard Anthony Juliano ("Petitioner") was held on April 23, 2012 at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a hearing panel consisting of Kenn Brotman, Chair, Leonard J. Schrager and K. F. Kitchen, II. Petitioner appeared and was represented by William J. Harte and Eric D. Gruber. The Administrator was represented by Robert J. Verrando
On April 2, 2002, a federal grand jury returned an indictment against Petitioner on one count of mail fraud. On April 18, 2002, Petitioner and the United States Attorney entered into a plea agreement by which Petitioner pled guilty to the charge of mail fraud and admitted his participation in a scheme to defraud the State of Illinois and its citizens by diverting personnel, services, salary and other compensation and material resources of the Secretary of State's office to the Citizens For Ryan campaign, in violation of Title 18, United States Code, Section 1341, 1346 and 2. United States of America v. Scott R. Fawell, Citizens for George Ryan, Sr. and Richard Juliano, No. 02 CR 310. On November 4, 2002 the Illinois Supreme Court entered an
order of interim suspension, pursuant to Supreme Court Rule 774, suspending Petitioner from the practice of law until further order of Court. In re Juliano, 02 CH 93, M.R. 18423 (Nov. 4, 2002).
On October 10, 2006, Judge Rebecca R. Pallmeyer entered a judgment of conviction against Petitioner in case number 02 CR 310. Petitioner was sentenced to serve three months of confinement in a work release program, 350 hours of community service, four years of probation with conditions, and was fined $10,000.
Following his conviction and sentencing, Petitioner filed a motion with the Illinois Supreme Court to strike his name from the master roll of attorneys. On March 19, 2007, the Court granted Petitioner's motion to strike his name from the master roll of attorneys, but denied his request that the disbarment be effective from the date of his interim suspension.
PETITION FOR REINSTATEMENT AND OBJECTIONS
On April 27, 2011 Petitioner filed a Petition for Reinstatement pursuant to Supreme Court Rule 767. The Petition sets forth information required by Commission Rule 402, including a summary of Petitioner's residences and employment during the discipline period, a statement of monthly earnings and income, and his financial assets and obligations.
On December 8, 2011, the Administrator filed objections to the Petition and requested that the Petition be denied. The objection focused on the serious nature of Petitioner's misconduct.
Petitioner testified on his own behalf, called six additional witnesses, and submitted thirty-one exhibits which were admitted into evidence. The Administrator did not present any witnesses or exhibits.
Petitioner, a current resident of Virginia, is married and has three young daughters. He testified he was raised in Ohio and attended college at the University of Chicago, where he received his undergraduate degree in public policy studies in 1989. He recalled developing an interest in politics at a young age. (Tr. 13, 15-16).
As a college student in 1987, Petitioner volunteered to work on the George Bush presidential campaign and met Scott Fawell, a senior staff member with the campaign office in Chicago. Petitioner and Fawell developed a mentor-prot?g? relationship and in the fall of 1988, Petitioner became Fawell's assistant on a part-time basis. In 1988 Fawell also had a professional relationship with Lieutenant Governor George Ryan and held various positions on Ryan's staff. (Tr. 16-20).
After Petitioner graduated from college, he moved to Springfield to work as an assistant in the Intergovernmental Affairs Office of the Illinois Department of Rehabilitation Services, a position for which he had been highly recommended by Fawell. After six months Petitioner shifted to the Illinois Department of Central Management Services where he became assistant to the director. After six months at that position, he was asked by Fawell to work on George Ryan's campaign for Secretary of State. Fawell was Ryan's campaign manager. Petitioner moved back to Chicago with the understanding that he would be placed on the political payroll. When he arrived, however, the campaign did not yet have an office and Fawell advised him he would be part of the Lieutenant Governor's office and be placed on that payroll. For the first months, Petitioner performed political and campaign tasks and also did work relating to the Lieutenant Governor's office. Petitioner was twenty-three years old and did not question the
propriety of performing political tasks while being employed by the Lieutenant Governor's office. (Tr. 18, 21-25).
When Ryan took office as the Secretary of State in January 1991, Petitioner began working for him and held various positions with that office from 1991 until 1999. In 1993 and 1994, when Petitioner was approximately twenty-six years old, he was employed full-time as Executive Assistant to the Secretary of State. During that time he also was involved in performing activities for Ryan's reelection and eventually became Ryan's campaign manager from mid-1994 through the November election that year. His involvement in political activities was directed and coordinated by Fawell, who at the time was Ryan's Chief of Staff. Fawell controlled the campaign budget and on many occasions directed Petitioner, either explicitly or implicitly, to use Secretary of State resources for political purposes. Those resources included Petitioner's and other employees' time, as well as government office supplies. Petitioner vaguely recalled having discussions with other colleagues regarding their activities, but he did not recall challenging Fawell's direction. Petitioner testified he attempted to minimize the misuse of payrolls and supplies to the extent he could do so. He understands using State resources for purposes for which they are not intended is illegal. (Tr. 26-31).
During Petitioner's employment at the Secretary of State's office in 1994, he was asked by Fawell to assist with campaign tasks for Fawell's mother, Beverly Fawell, who was running for reelection as a state senator. Petitioner recalled spending a couple of weeks on telephone polling. (Tr. 25-26).
In 1995 Petitioner began law school at the University of Chicago and graduated in June 1998. During those three years he continued to do work for the Secretary of State's office on a part-time contract basis. When George Ryan became a gubernatorial candidate for the 1998
election, Petitioner had a discussion with Fawell, who was Ryan's campaign manager, regarding campaign duties. Petitioner asked to be placed on the Citizens for Ryan payroll but Fawell, who did not wish to spend campaign funds, arranged for Petitioner to have a part-time employment contract with the Secretary of State's office for four months. During that time period Petitioner received $22,500 from the State. Eventually, he was shifted to the Citizens for Ryan payroll. (Tr. 31-34, 110).
Petitioner knows now, and knew at the time, that the diversion of time and funds to the Ryan campaign from the Secretary of State's office was illegal. He discussed his hesitations with Fawell, but they did not discuss the illegality of the activities. Petitioner rationalized his acceptance of the employment contract by telling himself he could perform both the political activities and the duties described in the government contract while also attending law school, but he acknowledged he did not perform the government duties. At the time of the 1998 campaign, Petitioner was approximately thirty-one years old and was not yet a member of the Illinois bar. He was admitted to practice two days after the 1998 election. (Tr. 35-36).
Petitioner recalled Fawell making statements over the years to the effect that politics is competitive; other candidates use the advantages of their government offices; Illinois is different in that politics and government are not clearly separated; and the practice of using state resources for campaigns has been going on for a long time. Fawell expressed the opinion that as long as the media and the political opposition did not find out, they had no problem. (Tr. 37).
Petitioner testified that while he initially found Fawell's arguments to be persuasive, he became more and more concerned as the years went on. Eventually he became so disturbed that when the campaign concluded in 1998, he ended his professional association with Fawell. When Fawell took a post-election position as CEO of the Metropolitan Pier and Exposition Authority
and asked Petitioner to work for the authority on three separate occasions, Petitioner declined each offer. (Tr. 38-40, 112).
With respect to the diversion of State resources, Petitioner stated he realizes he committed serious misconduct. He was reluctant to cite his youth or inexperience as an excuse for his illegal conduct, but acknowledged it was a factor. He stated he lacked perspective as to what was normal in a campaign because he was directed only by Fawell, who was his mentor and a person steeped in Illinois politics. He was viewing his activities during that time in a political context and did not consider their legality. Further, at the time he thought very highly of George Ryan, was anxious to see his candidacy for governor succeed, and looked forward to having an opportunity to work with him if he were elected. He acknowledged he never refused to perform a task assigned by Fawell based on the illegality of the task, nor did he ever refuse to accept a paycheck from the State payroll. (Tr. 38-39, 47, 56, 109-12).
Following Ryan's election as governor in November 1998, Petitioner accepted a position as Deputy Chief of Staff in the governor's office, and stayed in that position for two years. In 2000 he took a short leave of absence to participate in George W. Bush's campaign for president. (Tr. 40-42).
Petitioner left Illinois in January 2001 when he was offered a position in the Bush administration as the White House liaison to the Department of Transportation. He was not aware of any investigation of his activities at that time. Petitioner described his experience in Washington as "eye-opening" with respect to the professionalism that was exhibited. (Tr. 42-43, 45-46, 88).
In the summer of 2001, Petitioner was served with a grand jury subpoena and had discussions with Assistant U.S. Attorney Patrick Collins regarding Fawell's activities. After
consulting with family members and his attorney, he agreed to cooperate with the U.S. Attorney's office. No promises were made to Petitioner in exchange for his cooperation and he did not believe at the time that he was a target of the investigation. (Tr. 44-45, 47).
Petitioner testified he met with Collins in November 2001 and was given limited immunity at that time. During an all-day session he reviewed documents and answered questions regarding the diversion of public resources. He subsequently learned he might be charged as part of the government's case, but he continued to cooperate and had discussions with representatives of the U.S. Attorney's office on more than fifty occasions, either in person or by telephone. Petitioner made seventeen trips to Chicago and made every effort to provide all the information he could. (Tr. 48-50).
In April 2002 Petitioner entered into a plea agreement by which he pled guilty to a single count of mail fraud and admitted other misconduct relating to the misuse of political resources. In pleading guilty to the crime of mail fraud, Petitioner admitted that between 1997 and 1998 he, along with his co-defendants and under the direction of Scott Fawell, received a salary from the State of Illinois while exclusively performing campaign-related work for the gubernatorial campaign of George Ryan; fraudulently assisted in the diversion of the services of selected Secretary of State employees to the Ryan campaign while those workers received wages, salary and other compensation, including health benefits, from the Secretary of State's office; fraudulently participated in the diversion of Secretary of State resources and property to the benefit of the Ryan campaign (including an industrial shredder, reams of copy paper, office supplies, parking spaces, parking stickers, cell phones and other office equipment); and participated in the falsification of Secretary of State records in order to conceal the diversion of the employee services and property to the Ryan campaign. Petitioner further admitted that after
the 1998 gubernatorial election, he assisted in compiling a list of Secretary of State office employees who had performed well for the Ryan campaign, and Petitioner was aware that those individuals were later provided raises and job benefits as a result of this process. (Tr. 53, 56; Pet. Ex. Y).
The plea agreement reflects that Petitioner made the following additional admissions for purposes of computing his sentence:
- in 1994 he performed campaign work for a State Senator on state time while he was a Secretary of State office employee;
- After the 1994 reelection campaign of George Ryan, he coordinated and participated in providing raises, promotions and other job benefits for Secretary of State office employees who made substantial efforts on behalf of the Ryan campaign;
- Between 1995 and 1996, he performed campaign work on state time on behalf of a presidential primary campaign endorsed by George Ryan and that the work and payments he received from a third party entity were never publicly disclosed.
(Tr. 27, Pet. Ex. Y).
Other than receiving a State salary for performing political work, Petitioner was not charged with deriving any other personal profit from Fawell's political schemes, and was never involved or charged with any misconduct relating to the selling of Illinois drivers' licenses for bribes. As part of Petitioner's plea agreement, he agreed to postpone his sentencing until all other trials and investigations were concluded. (Tr. 54, 59).
In November 2002 the Illinois Supreme Court suspended Petitioner from the practice of law on an interim basis. Petitioner consented to the interim suspension and understood that final resolution of his discipline would occur after his sentencing. (Tr. 54-55; Pet. Ex. W).
In 2002 Petitioner testified before a grand jury regarding Scott Fawell, and in January 2003 he testified as a witness for the prosecution at Fawell's trial. Fawell was convicted on all
counts. In 2005 Petitioner appeared as a witness in the federal prosecution of Larry Warner and George Ryan. (Tr. 52; Pet. Ex. X).
In October 2006 Petitioner was sentenced to four years probation, 350 hours of community service and a $10,000 fine. In imposing the sentence, Judge Pallmeyer recognized Petitioner's repeated acknowledgements of guilt and noted "the most significant mark of an adult is to be able to apologize." Petitioner was also ordered to comply with standard requirements such as submitting to drug tests and reporting to a probation officer. The U.S. Attorney's office did not seek restitution from Petitioner, and he was not ordered to repay anyone, because the State Treasury was reimbursed by the Citizens for Ryan campaign fund. Petitioner was placed under home confinement for the first three months of his sentence and was not allowed to leave except to go to work. 57 (Tr. 56-60, 113; Pet. Ex. CC).
Petitioner testified that after he was sentenced, he contacted the U.S. Attorney's office and expressed his willingness to speak publicly about his experiences with the federal investigation. He was introduced to Professor Hank Shea of the University of St. Thomas Law School in Minneapolis, who specializes in ethics and had been giving presentations with felons who spoke about their ethical lapses. Petitioner and Shea began making presentations together in February 2007 and continue to do so. Most of the programs are presented to law students and are followed by a question and answer session. During the presentations Petitioner talks about his relationship with Fawell, explains how their misconduct progressed and shares the following three rules with his audience: 1) if conduct is being rationalized on the basis that "everyone is doing it" or "no one will find out," seek out another perspective; 2) live life as if it will be scrutinized; and 3) if moral dilemmas are repeatedly arising in the work place, be prepared to
withdraw and seek employment elsewhere. Petitioner also emphasizes the importance of telling the truth and discusses the repercussions of his misconduct. (Tr. 62-73; Pet. Exs. F - R).
In addition to law schools, Petitioner and Shea have appeared before business groups and high school students. Petitioner has also conducted public corruption training seminars. He testified he has been involved in twenty-seven presentations, primarily with Professor Shea, and submitted documentation of those programs. Other than receiving honorariums of $1,000 from two organizations and having his travel expenses covered, Petitioner has not asked for or received any compensation for the presentations. (Tr. 61, 73-77, 83, 85; Pet. Exs. E, O).
Petitioner stated that his first fifteen presentations fulfilled his 350 hours of community service but after completion of that requirement in June 2009, he continued to participate in the presentations and intends to continue in the future because he feels the message is beneficial to young people and the involvement is fulfilling to him. Petitioner noted that his period of probation was terminated ten months early, on his petition, because he had fulfilled all the conditions of his probation. (Tr. 84-87; Pet. Exs. E, DD).
With respect to Petitioner's employment in Washington D.C, he stated he voluntarily resigned from his position with the Department of Transportation prior to being charged with criminal conduct because he felt staying in that position would be inappropriate. He then accepted a job with the American Road and Transportation Builders Association ("ARTBA") and has been employed by that organization for ten years. He currently serves as Senior Vice President for Strategic Initiatives and Managing Director of the Contractors Division. In that capacity he manages the activities of the Contractors Division, works with the government relations team, occasionally lobbies Capitol Hill as a registered lobbyist, works with the
Department of Transportation, and serves as the treasurer of the organization's Political Action Committee. (Tr. 89, 92-94; Pet. Ex. U).
As a part of his professional training and experience, Petitioner has received two certifications: he is a graduate of the U.S. Chamber of Commerce's Institute for Organization Management (IOM), and has received the designation of Certified Association Executive (CAE) from the American Society of Association Executives. He stated that only a small percentage of association executives have received those certifications. (Tr. 96-97; Pet. Ex. U).
Petitioner testified he has initiated and participated in ethics programs at ARTBA. He has also worked with the Federal Highway Administration and other groups to compile ethics and compliance documents for distribution to businesses which use the documents to initiate ethics programs within their own companies. (Tr. 98-102).
Petitioner testified he keeps current with both federal and Illinois regulations and legislation. He recalled working with an Illinois chapter of ARTBA to determine how an Illinois statute fits in with federal law. Petitioner presented evidence that he has met his Illinois MCLE requirements for the two-year reporting periods ending in 2008 and 2010. (Tr. 102-103; Pet. Ex. EE).
Petitioner presented evidence of his financial support to various organizations, including the University of Chicago college fund and law school fund, his church, the Girl Scouts of America, and the F.B. Meekins pre-school. He has volunteered his time to his daughters' elementary school and to a charity fund raising event for returning veterans. In April 2004, Petitioner received an award from Secretary of Transportation Mineta for his service to that Department in connection with the terrorist attacks of September 11, 2001. After the evacuation
of his building on that day, Petitioner stayed at his office to assist with transportation issues. (Tr. 104-108; Pet. Exs. C, D, S, T, V).
Patrick Collins, an attorney, testified he was a federal prosecutor in the U.S. Attorney's Chicago office from 1995 to 2007. Collins met Petitioner in 2001 and then dealt with him in a professional capacity for several years in connection with the U.S. Attorney's investigation of the diversion of State resources for campaign and political purposes. (Tr. 131-34).
Collins testified that Petitioner agreed to provide assistance without eliciting any promises from the U. S. Attorney's office, was interviewed on more than fifty occasions, and participated as a major witness at two lengthy trials. In Collins' opinion, Petitioner was scrupulously honest during his interaction with the U.S. Attorney's office. (Tr. 136-37, 144).
Collins identified a 2006 document submitted to the Court by the U.S. Attorney's office in connection with Petitioner's sentencing. The document, entitled "Government's Supplemental Filing," details the manner in which Petitioner substantially advanced the government's case, identifies him as "arguably the most critical witness in the Fawell trial" and a "model cooperator," and notes his sincere remorse, as evidenced by his educating the government on the scope of the wrongdoing to aid the truth seeking and accountability process. Collins testified the U.S. Attorney's office did not seek restitution from Petitioner because payment was obtained from the Citizens for Ryan campaign funds. At Petitioner's sentencing in 2006, Collins advised Judge Pallmeyer that he had only positive things to say about Petitioner's contributions to the justice system after August 2001. (Tr. 135, 138-42, 145; Pet. Exs. AA, CC).
Collins testified he was aware of Petitioner's presentations with Henry Shea, which he regarded as further evidence of Petitioner's remorse and rehabilitation. (Tr. 143-46).
The evidence deposition of Henry Shea was taken on April 13, 2012 and was admitted into evidence. Shea is currently a law professor at the University of St. Thomas School of Law in Minnesota and the University of Arizona Rogers College of Law in Arizona. Prior to teaching, Shea served for many years as an Assistant U.S. Attorney in Minnesota, during which time he specialized in white collar crime. (Shea Dep. at 6-8).
In 2006 Shea was operating an ethics program whereby he brought individuals who had been convicted of crimes into classrooms to speak about their experiences. After Shea was contacted by the U.S. Attorney's office in Chicago regarding Petitioner's potential participation in the program, he met with Petitioner and determined that students could benefit from hearing his story. (Shea Dep. 9-10, 12).
Shea and Petitioner presented their first program on public corruption and ethics in February 2007, and have conducted approximately two dozen programs since that time at law schools and other venues around the country. During the presentations Petitioner describes his involvement in Illinois politics, his wrongdoing, his decision to cooperate, his testimony against Fawell and Ryan, his sentencing, and the consequences of his misconduct. Petitioner typically shares the lessons he has learned from his experience and emphasizes that he received a second chance because he told the truth. The formal presentation is then followed by a question and answer period. (Shea Dep. 13, 17-20, 27, 29-30).
Shea stated Petitioner has never solicited any type of fee for his participation in the programs, but does receive reimbursement for travel and lodging expenses. Shea was aware that Petitioner was allowed to use the time he devoted to the ethics presentations to fulfill his community service obligation, and Shea periodically reviewed and verified the hours Petitioner
logged. He noted that Petitioner fulfilled his community service requirement after the first couple of years, and has continued to participate in many presentations since that time. (Shea Dep. 23-26).
Shea stated Petitioner's presentations have received overwhelmingly positive reviews because students, attorneys, and professors find him to be authentic, credible and worthy of trust. Shea believes Petitioner has a reputation for honesty and integrity within that community, and would not associate with him if he did not have that reputation. Shea stated he has no hesitation in vouching for Petitioner's character and fitness to practice law. (Shea Dep. 13, 32, 35).
Kenneth M. Mead
The evidence deposition of Kenneth Mead was taken on April 13, 2012 and was admitted into evidence. Mead, an attorney practicing in Washington D.C., testified he served as the inspector general for the Department of Transportation from 1997 to 2006. He met Petitioner in 2001 when Petitioner was appointed to serve as liaison between the Department and the White House. Mead recalled Petitioner assisted with government activities after the terrorist attacks of September 11, 2001 and received an award for his efforts. He believed Petitioner had the confidence and respect of the entire leadership team at the Department of Transportation. (Mead Dep. 6-7, 9-10, 12).
Mead testified Petitioner resigned from the Department after advising Mead of his misconduct in Illinois and his intention to cooperate with the government investigation. Petitioner then became employed by ARTBA and in 2006 he requested Mead's assistance in the creation of an ethics and compliance course for ARTBA. Mead was impressed and persuaded by Petitioner's compelling sense of personal commitment to the importance of ethics and
compliance with rules, and cleared his calendar to assist Petitioner in the endeavor. Mead has participated in the program every year since its origination. (Mead Dep. 8, 12-14).
Mead stated that beginning in 2006, Petitioner has assisted the Transportation Department's Inspector General in presenting its bi-annual anti-fraud conference by bringing in speakers, organizing panels and presenting model ethics and compliance documents. Petitioner's participation has garnered great respect in the transportation community. (Mead Dep. 15-18).
Mead testified Petitioner has become an authority on ethics and compliance matters in the transportation industry, and he believes Petitioner will commit himself to those issues for his entire career. In Mead's opinion Petitioner has steered a straight course since his misconduct, and has a reputation for honesty and integrity. Further, officials in the transportation area have enormous good will toward Petitioner because of the way he handled himself since 2002. Mead believes Petitioner is an excellent candidate for reinstatement to the Bar. (Mead Dep. 19, 21, 24).
Peter Ruane has served as the CEO of the American Road and Transportation Builders Association in Washington, D. C. for the past twenty-four years. In 2002 he hired Petitioner to work at ARTBA. Ruane recalled learning of Petitioner's misconduct from Petitioner during his interview. (Tr. 166-67, 170).
Ruane has had an opportunity to observe Petitioner on a daily basis for the past ten years, and stated he has an outstanding reputation for honesty and integrity throughout the transportation community. He believes Petitioner's actions that led to his conviction were an anomaly. Ruane noted that Petitioner has been involved in developing model codes of ethics and
has participated in national conferences dealing with ethical issues in the transportation industry. (Tr. 169, 171).
Michael Schwartz currently serves as Chairman of the U.S. Railroad Retirement Board. Prior to his appointment to that position in 2003, he served in the cabinets of Governors Edgar and Ryan as the Director of Central Management Services. Through his work for the State of Illinois, Schwartz met Petitioner in 1989 and has known him since that time. In addition to interacting professionally, Schwartz and Petitioner became social friends and Schwartz served as best man at Petitioner's wedding. (Tr. 117-20).
Schwartz stated that during the time they both worked in Illinois government, Petitioner had a reputation for being truthful and giving straight answers. In Schwartz' current position he has had contact with Petitioner and knows that Petitioner has an excellent reputation for honesty and integrity at ARTBA and in the transportation industry. (Tr. 120-22).
James Christianson, an attorney for the Associated General Contractors of America in Washington, D. C., testified he met Petitioner in 2005 when Petitioner hired him to work at ARTBA. Christianson stayed at ARTBA for two years and then left to attend law school. While a law student, Christianson invited Petitioner and Shea to speak at the school. (Tr. 125).
Christianson testified he has sought out Petitioner for advice and tries to abide by the ethical rules Petitioner taught him. Because he and Petitioner work with many of the same people in the transportation industry, he knows Petitioner has a reputation for honesty and integrity within that community. (Tr. 126-28).
Samuel Skinner, a Chicago attorney, testified he served as Secretary of the Department of Transportation from 1989 to 1991 and then left that position to become President Bush's Chief of Staff for ten months. Following his work in Washington D.C., he served as president of Commonwealth Edison and as CEO of U. S. Freightways. He currently is of counsel to a law firm. (Tr. 149-51).
Skinner met Petitioner in 1992 when Petitioner was working at the Illinois Secretary of State's office, and also knows Petitioner through the transportation industry. Skinner stated that, with the exception of the misconduct which led to Petitioner's conviction, Petitioner has an excellent reputation for honesty and integrity. Skinner believed people who worked with Petitioner regarded his misconduct as an aberration. (Tr. 151-56).
Bryan Schneider, an attorney, testified he is vice president of the health law department at Walgreen's and serves as a member of the Illinois Sate Board of Elections. Schneider met Petitioner when they were undergraduate students at the University of Chicago and they have been close friends since that time. They also shared a professional connection when they were both working for the State of Illinois. (Tr. 160-62).
Schneider stated that within the political community, Petitioner was always known as an individual who would provide a truthful answer. In the social community, Petitioner is also known as a "straight shooter." Schneider considered Petitioner's actions that led to his conviction to be an aberration. (Tr. 163-64).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The purpose of a reinstatement proceeding is the same as that of an attorney disciplinary proceeding, that is, to safeguard the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Rothenberg, 108 Ill. 2d 313, 484 N.E.2d 289 (1985). A petitioning attorney seeking reinstatement to the practice of law has the burden of proving by clear and convincing evidence that he should be reinstated. In re Richman, 191 Ill. 2d 238, 730 N.E.2d 45 (2000); In re Parker, 149 Ill. 2d 222, 595 N.E.2d 352 (1990). In considering a petition for reinstatement, the focus is on the attorney's rehabilitation, present good character, and current knowledge of the law, with rehabilitation being the most important consideration. In re Martinez-Fraticelli, 221 Ill. 2d 255, 850 N.E.2d 155 (2006); In re Fleischman, 135 Ill. 2d 488, 533 N.E.2d 352 (1990). There is no presumption in favor of reinstatement. Richman, 191 Ill. 2d at 247-48.
Supreme Court Rule 767(f) sets forth the following factors to be considered in determining whether reinstatement is appropriate:
the nature of the misconduct for which the petitioner was disciplined;
the maturity and experience of the petitioner at the time discipline was imposed;
whether the petitioner recognizes the nature and seriousness of the misconduct;
when applicable, whether petitioner has made restitution;
the petitioner's conduct since discipline was imposed; and
the petitioner's candor and forthrightness in presenting evidence in support of the petition.
Keeping in mind the foregoing factors and the principles articulated by the Court, we now examine the evidence before us to determine whether this Petitioner has sufficiently established his rehabilitation, good character and current knowledge of the law.
1. Nature of Misconduct
The severity of the misconduct leading to an attorney's discipline is an important factor in determining whether reinstatement is warranted. The Supreme Court has advised that the significance of this factor cannot be minimized by subsequent exemplary conduct. Richman, 191 Ill. 2d at 245.
In this case Petitioner's misconduct was very serious, and he has not suggested otherwise. Between 1997 and 1998 he participated in a scheme to defraud the State of Illinois and its citizens by diverting personnel, services, salary and other compensation and material resources of the Secretary of State's office to the Citizens For Ryan campaign. That conduct led to his conviction for mail fraud in violation of Title 18, United States Code, Section 1341, 1346 and 2. In addition, and as part of his plea agreement, he admitted performing campaign work on State time beginning as early as 1994.
In determining whether Petitioner's misconduct was of such a nature that it should bar his reentry to the practice of law, we have reviewed other reinstatement cases and found that attorneys who engaged in egregious activities, including calculated fraud and criminal activities, have been reinstated. One case in particular, Martinez-Fraticelli, 221 Ill. 2d 255, resembles the present case in several respects. In that case the Supreme Court reinstated an attorney who had been convicted of defrauding taxpayers by accepting wage payments and health insurance coverage from city council committees for work he did not perform. Martinez-Fraticelli, like Petitioner in this case, was involved in a corrupt scheme involving public funds, which scheme
was initiated by other individuals; cooperated with federal authorities; and entered into a plea agreement admitting his commission of a crime. Also like the present case, the fraudulent conduct had continued for a number of years but was not connected to any work for clients. Unlike the present case, Martinez-Fraticelli was initially untruthful when confronted with his wrongdoing, was older and had practiced as an attorney for several years when the misconduct occurred, and served time in prison for his crime. He was reinstated to the practice of law despite the severity of his misconduct because other factors, such as his sincere remorse and his exemplary life after his release from prison, weighed heavily in his favor.
The following cases also involved attorneys who were reinstated to the practice of law after engaging in criminal activities. In In re Keane, 102 Ill. 2d 397, 466 N.E.2d 208 (1984) the disbarred attorney was reinstated after being convicted of conspiracy and mail fraud in connection with a land purchase scheme and serving two years of a five-year sentence. In Fleischman, 135 Ill. 2d 488, the attorney was reinstated after disbarment for making payments to members of the Board of Tax Appeals and making false statements to FBI agents. In In re Kuta, 86 Ill. 2d 154, 427 N.E.2d 136 (1981) the attorney was reinstated after disbarment for accepting a bribe in his capacity as an alderman.
We conclude from the foregoing cases that while the serious nature of Petitioner's misconduct is a factor that warrants careful consideration, it does not, by itself, pose an insurmountable obstacle to reinstatement.
2. Maturity and Experience of Petitioner
Youth or lack of experience is a relevant factor for consideration because either circumstance can explain an attorney's lack of judgment in a given situation. The misconduct for which Petitioner was disciplined commenced when he was approximately twenty-six years
old and continued until he was thirty-one years old. During that time period he enrolled in and completed law school, but was not yet admitted to the Illinois bar. He was placed on interim suspension when he was thirty-five, and disbarred on consent at age forty.
While the Supreme Court has stated that youth and immaturity is no excuse for conduct that is clearly dishonest, such as stealing funds from a client account (In re Rotman, 136 Ill. 2d 402, 556 N.E.2d 243 (1990)), we believe the situation in which Petitioner found himself was more complicated. Petitioner's conduct was directed by his mentor, Scott Fawell, who was very experienced in the political arena, and who seemed to have significant influence over Petitioner's political career. When Petitioner questioned the diversion of State resources, Fawell assured him the practices were necessary and customary. Since Petitioner had become involved with Fawell and Illinois politics at an early age, he had no other political experience to draw upon for comparison or guidance.
While it is true that Petitioner allowed himself to be led astray even after warning signs presented themselves, we appreciate the complexities involved in opposing a person with greater experience and influence. We conclude that Petitioner's lack of maturity and experience clouded his judgment and was a factor in his compliance with Fawell's directives and in his failure to challenge or defy them.
We note that attorneys who have committed inherently dishonest acts and were more experienced than Petitioner at the time of their misconduct have been reinstated to the practice of law. See Martinez-Fraticelli, 221 Ill. 2d 255; Fleischman, 135 Ill. 2d 488; In re Cohen, 04 RT 3002, M.R. 1946 (2005). For the foregoing reasons, we conclude that this factor does not weigh against Petitioner's reinstatement.
3. Recognition of Nature and Seriousness of Misconduct
The third factor to be considered is whether Petitioner recognizes the nature and seriousness of his misconduct. Expressions of remorse and acknowledgments of wrongdoing have been found to be indications that an attorney recognizes misconduct. See Martinez-Fraticelli, 221 Ill. 2d at 27; Parker, 149 Ill. 2d at 236. Attempts to rationalize or justify misconduct are signs that an attorney does not appreciate the nature or seriousness of his misconduct. See Livingston, 133 Ill. 2d at 343-44; In re Gottlieb, 109 Ill. 2d 267, 270-71, 486 N.E.2d 921 (1985).
Petitioner has not attempted to minimize or deny his misconduct in any way. Not only has he taken full responsibility for his actions since 2002, he has publicly disclosed his criminal record at programs around the country in hopes of helping others avoid the pitfalls he encountered. We can think of no better evidence that a disbarred attorney recognizes his misconduct than placing it on display and analyzing it for others. We also were convinced that Petitioner is truly remorseful for his conduct. Assistant U.S. Attorney Patrick Collins made note of that fact in his 2007 sentencing report, as did Judge Pallmeyer at the sentencing hearing, and our observations of Petitioner at hearing were in accord with those statements. Based on Petitioner's acceptance of responsibility, his remorse, and his demonstrated commitment to educating others through disclosure of his own wrongdoing, we conclude that he recognizes the nature and seriousness of his actions.
4. Payment of Restitution
Restitution was not raised as an issue by the Administrator and is not a factor that we consider.
5. Conduct Since Discipline has been Imposed
Petitioner's conduct since the imposition of discipline (both the interim suspension in 2002 and the disbarment on consent in 2007) has been commendable by all accounts. Beginning with his cooperation with the U.S. Attorney's office and continuing with his employment in the transportation industry, his presentation of ethics programs, and his financial and volunteer efforts for not-for-profit organizations, his actions have been above reproach. We also note that his compliance with his sentencing conditions, including the prompt completion of the community service requirement, led to the early termination of his probation.
Numerous witnesses appeared on behalf of Petitioner to praise his character, his reputation for trustworthiness, and his value within the transportation community, particularly with respect to the implementation of ethical standards. In particular, Henry Shea and Kenneth Mead provided numerous concrete examples of Petitioner's accomplishments and contributions. Their testimony and that of the other witnesses clearly established that he has earned the respect of his colleagues and has aimed to improve the moral climate of his industry.
We received no evidence that Petitioner has engaged in conduct since his discipline which reflects negatively on his character or that would pose an obstacle to his reinstatement. Therefore, this factor weighs heavily in favor of reinstatement.
6. Candor and Forthrightness in Presenting Petition
The Administrator advised us that the Petition for Reinstatement had been thoroughly reviewed and investigated, and that no errors were noted. We appreciate the Administrator's complete frankness in this respect as we are aware that few petitions, when placed under the microscope, escape questioning.
The lack of challenge to Petitioner's candor is consistent with our own perception of him at hearing. After listening to Petitioner's testimony and observing his demeanor, we are of the opinion that his presentation was open, honest, and sincere. It was clear to us that he practices what he preaches to others and, at least since 2002, has lived his life in expectation of scrutiny.
This final factor for our consideration, therefore, also weighs in Petitioner's favor.
Consideration of the foregoing factors is intended to aid in our determination of Petitioner's rehabilitation, present good character and current knowledge of the law. Rehabilitation is "a matter of one's ?return' to a beneficial, constructive and trustworthy role." In re Wigoda, 77 Ill. 2d 155, 395 N.E.2d 571, 574 (1979).
While Petitioner engaged in serious misconduct, the evidence showed that he committed his misdeeds at a time in his life when he was young and lacking in experience, both in the legal field and the political arena. To his credit he acknowledged his wrongdoing at an early stage, willingly cooperated with the federal authorities, and completed his sentencing requirements without delay. Since the imposition of discipline, he has demonstrated his understanding of the severity of his acts, has led an honorable life with continuous employment, and is committed to helping other individuals avoid similar mistakes. The witnesses supporting Petitioner's reinstatement were unanimous in their belief that he is a person of integrity and the Administrator did not present any witnesses who disagreed with those character assessments. Finally, by staying abreast of legal issues in his industry, organizing and presenting ethics programs, and completing his MCLE requirements during his period of discipline, Petitioner has ensured that his current knowledge of the law is sufficient to allow him to reenter the practice of
law. We conclude from the foregoing that Petitioner has taken his place as a beneficial, constructive and trustworthy member of society.
We have previously compared this case to In re Martinez-Fraticelli, 221 Ill. 2d 255, 850 N.E.2d 155 (2006) in which the attorney was reinstated after being disbarred for participating in a ghost-payrolling scheme. In that case the Court was particularly persuaded by the attorney's expressions of remorse and the honorable and productive life he had lived following his imprisonment. We received similar evidence in this case. We also look to In re Fleischman, 135 Ill. 2d 488, 533 N.E.2d 352 (1990) in which an attorney who had previously served as an assistant State's Attorney was disbarred for bribing a government official and then lying to federal agents about his actions. He subsequently recanted his false statements and cooperated in the federal investigation. As in the case before us, Fleischman acknowledged his wrongdoings, presented numerous character witnesses who attested to his honorable character, and conducted himself in an exemplary fashion after his disbarment. He was reinstated to the practice of law.
Having reviewed the evidence in this case and the relevant legal precedent, we conclude that Petitioner has proved by clear and convincing evidence that he is rehabilitated, of good character, and is current in his knowledge of the law. In our view, no public interest would be served by denying his petition for reinstatement. To the contrary, we anticipate that the restoration of his law license will only broaden and enhance Petitioner's efforts in ethics education, and we hope he continues his contributions in that area.
Accordingly, we recommend that Petitioner be reinstated to the practice of law.
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on July 6, 2012.
Kenneth G. Jablonski, Clerk of the