Filed July 20, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
RICHARD A. VAN KALKER,
Commission No. 2011PR00091
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on February 28, 2012, at the Chicago offices of the Attorney Registration and Disciplinary Commission (ARDC) before a Panel of the Hearing Board consisting of Carl E. Poli, Chair, Henry P. Wolff, and Cheryl M. Kneubuehl. Marita C. Sullivan appeared on behalf of the Administrator. Respondent appeared pro se.
In the fall of 2009, the Village of Crete brought a criminal charge against Respondent as a result of an altercation that took place among Respondent and four golfers near Respondent's house in the Village of Crete. The criminal charge alleged Respondent battered one of the golfers in violation of 720 ILCS 5/12-3 of the Illinois Criminal Code and Village of Crete Ordinance 13-1. The criminal case was docketed as Village of Crete v. Richard A. Van Kalker, No. 09 OV 7517, in the Circuit Court of Will County, Illinois (Will County case). On November 3, 2009, a bench trial took place before the Honorable Raymond A. Nash in the Will County case. At the conclusion of the trial, Judge Nash entered an order finding Respondent guilty of battery.
On July 27, 2011, the Administrator filed a one-count complaint pursuant to Supreme Court Rules 761 and 753. The complaint charged Respondent with:
Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct (Rules); and
Engaging in Conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Rules.1
Respondent filed an answer to the complaint on August 10, 2011. Respondent's answer denies most, but not all, of the factual allegations in the complaint and denies all allegations of misconduct.
Prior to the hearing in this matter, the issue of whether Respondent's Will County case resulted in a conviction for purposes of Supreme Court Rule 761(f) was extensively briefed and argued. Respondent filed a motion to dismiss the complaint herein and a supplemental brief, as well as a motion requesting bifurcation of the hearing on the issue of whether the Will County case was a conviction for purposes of Supreme Court Rule 761(f). In his motions, Respondent argued that he was neither found guilty nor convicted of battery, but rather Judge Nash withheld judgment and sentenced him to supervision.
The Administrator filed two briefs, in which he argued that the Will County case was a conviction for purpose of Supreme Court Rule 761(f) and that Supreme Court Rule 761(f) is applicable to Respondent's disciplinary proceedings. Specifically, the Administrator argued that in accordance with 720 ILCS 5/2-5, Respondent was convicted of battery as Judge Nash both found Respondent guilty of battery and sentenced him.
On February 21, 2012, the Chair referenced Judge Nash's order, which stated Respondent was guilty of battery and his sentence, and ruled that Respondent's Will County criminal case
resulted in a conviction for purposes of this disciplinary proceeding. Subsequently, in an order, entered February 27, 2012, the Chair held that in accordance with Rule 761(f), Respondent's battery conviction is conclusive proof of guilt of the battery with which he was charged and he would not be permitted to re-litigate the issue of guilt at the hearing.
At the hearing, the Administrator presented the testimony of Raymond A. Baron, Barry Weiss, Jeremy Holland, Brendan Donovan, Michael Rarity, James M. Paoletti, and Stanley Pagorek. Additionally, Administrator's Exhibits 2 through 4 were admitted into evidence. Respondent testified on his own behalf, and Respondent's Exhibits 1 through 5 were admitted into evidence.
On October 2, 2009, Raymond Baron, Barry Weiss, Jeremy Holland, and Brendan Donovan, employees at Northern Indiana Public Service Company, attended a golf outing at Lincoln Oaks Golf Course in Crete, Illinois. (Tr. 38-39, 69, 71-72, 110-11, 127-28). The golf tournament format was a two-person scramble, where both players tee off and the best of the tee shots is the starting point for the second shot. (Tr. 40-41, 73).
Mr. Baron, Mr. Weiss, Mr. Holland, and Mr. Donovan were a foursome, with Mr. Baron and Mr. Weiss as partners in one golf cart and Mr. Holland and Mr. Donovan as partners in a second golf cart. (Tr. 39-40, 72, 111, 128). The foursome teed off at approximately noon, and arrived at the seventh hole between 1:00 p.m. and 1:30 p.m. Mr. Baron and Mr. Weiss admitted consuming alcohol on the golf course, while Mr. Holland and Mr. Donovan did not consume alcohol. (Tr. 40, 60-62, 72, 94, 136).
While at the seventh hole and on his third shot, Mr. Baron hit the golf ball to the left. After hitting the golf path, which is to the right of a residential road that divided the seventh hole and Respondent's house, the ball hit Respondent's house making a loud noise. (Tr. 41, 43, 45, 73, 112, 129). Mr. Baron and Mr. Weiss then drove their golf cart to about where the golf ball hit the path and looked for the ball. After seeing the ball in Respondent's yard, about six to ten feet from Respondent's house, Mr. Baron, alone, left the golf course and went to retrieve it. (Tr. 45, 58, 62, 73, 76, 112, 129). Mr. Weiss testified that the ball had hit Respondent's gutter and the dent was visible from the golf course. (Tr. 97-98).
As Mr. Baron returned to the golf course with the ball, Respondent came out of his house and examined it for damage. Mr. Baron apologized for hitting Respondent's house, and Respondent requested Mr. Baron's driver's license. Mr. Baron did not feel comfortable giving Respondent his license, so instead offered his name and phone number. Respondent then demanded his license and, according to Mr. Weiss, Respondent stated he was a federal agent. (Tr. 45-46, 74, 76, 112-13, 130). Respondent said he was going to call the police, and Mr. Baron said he would be willing to wait and give the police his information. (Tr. 52, 77, 113). Initially, Respondent and Mr. Baron talked from opposite sides of the residential street dividing the golf course and Respondent's house. (Tr. 46, 130). Mr. Baron did not feel threatened by Respondent. (Tr. 65).
As the conversation escalated to an argument, Respondent approached Mr. Baron in the area between the road and the cart path. During this argument, Respondent yelled obscenities, stated he was tired of golf balls hitting his house, and accused Mr. Baron and Mr. Weiss of purposefully aiming at his house. He also stated that someone had broken his window recently. (Tr. 47-48, 53, 77-78, 114, 130-31).
At some point during this argument, Mr. Weiss became involved. Mr. Weiss told Respondent to calm down and that he assumed the risk of a golf ball hitting his house because he lives next to a golf course. Mr. Weiss and Respondent began arguing face-to-face, and Respondent was cursing at Mr. Weiss. Respondent turned and looked as if he were going back to his house, but then came back around and struck Mr. Weiss in the eye, bending Mr. Weiss's eye glasses. Mr. Weiss fell to the ground, and Respondent jumped on top of him. (Tr. 47-49, 78-80, 83, 114-15, 131). According to Mr. Weiss, while Respondent had him pinned to the ground, Respondent made "baby noises," scratched him, and tried to bite him. Mr. Weiss testified that he neither punched nor kicked Respondent. Mr. Weiss also did not see any of the other three golfers do so. (Tr. 80-81, 95-96, 101, 116).
While this incident took place, Mr. Donovan gathered up the loose golf clubs because he was concerned that they might be used as weapons, and Mr. Baron unsuccessfully tried to pull Respondent off of Mr. Weiss. Eventually, Respondent was pulled off of Mr. Weiss by Mr. Holland. Mr. Holland got behind Respondent and pulled him onto himself, restraining him until he calmed down. Mr. Holland testified that he neither kicked nor hit Respondent and Respondent's back was not on the ground. (Tr. 50, 81, 115-16, 125, 132-33, 139). Upon being released, Respondent yelled obscenities at the golfers. As he was returning to his house, Respondent stated he was a federal agent and informed the four golfers that they were in trouble. None of the golfers called the police. (Tr. 50, 52, 82, 99-100, 117, 120-23, 133, 138-89).
With the exception of Mr. Weiss, the golfers continued to play holes seven, eight and nine. After the ninth hole, the golfers arrived at the clubhouse, where Mr. Baron reported what had happened to a golf course employee, who then called the police. (Tr. 53, 58, 84, 117-18, 133).
At approximately 1:20 p.m., Officer Michael Rarity, a Village of Crete police officer, was dispatched to the clubhouse at the Lincoln Oaks Golf Course in Crete, Illinois. (Tr. 146). Upon arriving at the clubhouse, Officer Rarity met the four golfers, including Mr. Weiss. Officer Rarity observed Mr. Weiss's injuries, which included a cut on his face and redness around one of his eyes, and his bent glasses. (Tr. 147). Officer Rarity took Mr. Weiss's statement, and Mr. Weiss signed a complaint, also known as a ticket, stating that Respondent struck him numerous times with his fists. (Tr. 54, 85-86; Adm. Ex. 3 at 22). None of the four golfers requested medical attention while at the clubhouse. (Tr. 59, 94, 120-21, 135).
Officer Rodd went to Respondent's house and brought Respondent back to the clubhouse, where the four golfers identified him as the individual who attacked Mr. Weiss near the seventh hole. (Tr. 54, 85, 133-34, 148). After leaving the clubhouse, the golfers continued to play holes ten through eighteen, and then went to a friend's house for a barbeque. (Tr. 58-59, 91, 121, 136). Mr. Weiss testified that although he played holes ten through eighteen, he did not feel great. (Tr. 97).
After the four golfers identified Respondent, Officer Rarity placed Respondent under arrest and transported him to the Crete Police Station. (Tr. 148-49). Officer Rarity testified that during Respondent's arrest, he was cooperative, respectful, and polite. (Tr. 154-55). Officer Rarity also testified that Respondent might have had a small cut on his lip, but no additional injuries. (Tr. 160). Office Rarity does not recall Respondent requesting medical care while in police custody. (Tr. 156). According to Officer Rarity, if a person in police custody requests medical care, an ambulance and/or the fire department is called so that the individual can be evaluated. To avoid liability, the police strictly adhere to this practice. (Tr. 158).
While at the police station, Officer Rarity filled out a police report for this incident and finalized the complaint that was signed earlier by Mr. Weiss. (Tr. 152). The complaint charged Respondent with one count of battery in violation of the Village of Crete's Ordinance No. 13-1, which adopted by reference 720 ILCS 5/12-3, and required Respondent to appear in court on November 3, 2009. (Tr. 223-24; Adm. Ex. 3 at 22). Officer Rarity also completed a bond sheet for Respondent. At approximately 3:00 p.m., after Respondent posted a $100 bond, he was released. (Tr. 150-51; Adm. Ex. 3 at 6).
On November 3, 2009, Respondent's trial on one count of simple battery was held before the Honorable Raymond Nash in a Will County field courthouse located in Peotone, Illinois. Stanley Pagorek, the Village of Crete's prosecutor, prosecuted the case. Respondent appeared pro se and testified at his trial. (Tr. 202-203, 206-207; Adm. Ex. 2 at 1-2). Additionally, all four golfers and Officer Rarity testified. (Tr. 55, 88, 119, 134, 153, 207-208). According to Mr. Pagorek, Respondent's courtroom demeanor was not professional as he was belligerent and argumentative with the witnesses and Mr. Pagorek. Additionally, Mr. Pagorek stated that Respondent made frivolous motions and arguments, which resulted in a trial that should have been no longer than forty-five minutes, lasting nearly six hours. At the conclusion of the evidence and closing arguments, Judge Nash made an immediate ruling and found Respondent guilty of battery. (Tr. 209-210, 218-19; Adm. Ex. 2 at 2; Adm. Ex. 3 at 20).
Judge Nash sentenced Respondent to one year of court supervision and fined Respondent $750. Respondent was ordered to undergo an anger management evaluation, have no contact with Mr. Weiss, and not go on Lincoln Oaks Golf Course property. (Tr. 210; Adm. Ex. 2 at 2; Adm. Ex. 3 at 20). Additionally, Respondent was ordered to pay Mr. Weiss restitution in the amount of $990, which Respondent immediately paid Mr. Weiss in open court. Mr. Pagorek
believed Respondent complied with all aspects of his sentence. (Tr. 89-90, 154, 210; Adm. Ex. 2 at 2; Adm. Ex.3 at 20-21).
After Judge Nash sentenced Respondent, Mr. Pagorek drafted an order of the court, containing Judge Nash's findings and Respondent's sentence. According to the order, the court found Respondent guilty of battery. (Tr. 209; Adm. Ex. 4). Prior to Judge Nash signing the order, Mr. Pagorek gave it to Respondent to review. Respondent did not object to the contents of the order. (Tr. 224-25). Mr. Pagorek then gave the order to Judge Nash, who reviewed and signed it. Mr. Pagorek, at Judge Nash's direction, gave the order to Respondent and had him sign it to acknowledge receipt, which he did. (Tr. 209, 212-14, 227; Adm. Ex. 4).
Respondent graduated in 1987 from Valparaiso University Law School and is currently a federal arbitrator with the Federal Mediation and Conciliation Service, the American Arbitration Association, and the National Futures Association. Additionally, Respondent sits as panel chair on cases subject to mandatory arbitration in both Cook County and Will County, Illinois. (Tr. 235, 237-38).
Respondent has been married for sixteen years and has two adopted daughters. Respondent and his family live in Crete, Illinois, adjacent to hole seven of the Lincoln Oaks Golf Course. (Tr. 239-40).
At approximately 1:00 p.m. on October 2, 2009, Respondent was home alone, working on an arbitration case when he heard an unusually loud noise outside his house. Respondent testified that golf balls have hit his house before and usually it is enjoyable for his children as they collect and sell them, but this was louder than usual. Respondent went outside to inquire about the noise and realized a golf ball hit and damaged a downspout on his house. Respondent
acknowledged that the damage "wasn't a big thing" and it would cost approximately $25 or $50 to fix. (Tr. 240-41).
While outside, Respondent encountered four golfers in his backyard. Respondent asked whether one of them hit an errant ball, and one gentleman politely acknowledged hitting Respondent's house with a ball. Respondent asked for the gentleman's name and number or his driver's license, so a copy could be made, but was told no. As the golfer was trying to hit the ball out of Respondent's yard, Respondent asked him to please pick up his ball and go back to the course. At that point, Mr. Weiss got in Respondent's face and stated "Hey, asshole. We paid our green fees. We can hit the ball wherever we like. In fact, we can hit the ball up your ass if you like." Respondent then said he was going to call the police, but as he turned to go into his house Mr. Weiss punched him. Before he knew it, he was on the ground being punched and kicked by Mr. Weiss, Mr. Baron, and Mr. Holland. This incident took place in Respondent's backyard. (Tr. 242-245, 247-48, 295, 298).
When the incident was over, Respondent walked back to his house feeling humiliated, so he turned to the golfers and said "You just beat up a federal arbitrator. I think you're in big trouble." Respondent did not call the police because he was afraid if he did the golfers might come back to vandalize his house or hurt his children, and he did not want any further confrontation with them. (Tr. 248, 290).
After the incident, Respondent felt dizzy and had difficulty breathing. (Tr. 246). So, he took a shower, a Motrin, and laid in a fetal position in bed until around 2:00 p.m. when Officer Rodd arrived at his house. (Tr. 249).
When Officer Rodd arrived at his house, Respondent showed him where the incident took place, the damaged downspout, his swelled elbow, and his hands, which lacked any cuts or
marks. Additionally, Respondent gave Officer Rodd the t-shirt he was wearing during the incident, which had blood on the right sleeve and soil stains on the back. Officer Rodd asked Respondent to come with him to the clubhouse so the situation could be resolved. (Tr. 249-51).
While at the clubhouse, Respondent was identified and placed under arrest. Once at the police station, Respondent had difficulty breathing, and was dizzy, nauseous, and scared. He asked an officer for medical attention, but was refused. At approximately 2:55 p.m., Respondent paid a $100 fine and was released from police custody. (Tr. 252, 291).
On November 3, 2009, Respondent's trial on one count of battery took place before the Honorable Raymond A. Nash. According to the Will County Circuit Clerk's Court Docket and the Certification of Court Disposition, the disposition of Respondent's case was "Withhold Judgment/Supervision." A subsequent November 3, 2009 docket entry notes that Respondent was found guilty of battery. (Resp. Ex. 1 at 2-3; Resp. Ex. 2). After the Village Prosecutor prepared the court's sentencing order and Judge Nash signed it, Respondent was given the order. He then signed the order, taking note of its contents and acknowledging receipt. Respondent stated he was not given an opportunity to see the order before Judge Nash signed it. Respondent was compliant with all the conditions noted in the November 3, 2009 order. ( Tr. 285-86, 301-302).
Evidence Offered in Aggravation and Mitigation
As a result of the October 2, 2009 incident, Mr. Weiss suffered a scratch on his arm and cut under his eye, which swelled and eventually bruised. Additionally, his glasses were badly bent. (Tr. 53, 83, 121, 134). On October 3, 2009, Mr. Weiss went to see his eye doctor, who examined his eye and performed some tests. Additionally, Mr. Weiss ordered new eye glasses. (Tr. 87).
Respondent testified that after leaving the police station on October 2, 2009, he vomited, had chest and head pain, and felt dizzy, which he attributed to the earlier altercation with the golfers. Respondent was concerned he suffered head trauma and was bleeding on the brain, which would require immediate surgery. Consequently, that evening, Respondent drove himself to the emergency room at St. James Hospital, which was approximately two miles from his house. His wife did not drive him because she had to get the kids off the school bus. Respondent's children typically get home from school between 4:00 p.m. and 4:30 p.m. (Tr. 252-53, 291-94).
Respondent was admitted into the hospital on October 2, 2009, at 7:21 p.m. and discharged at 8:50 p.m. that same date. (Tr. 259-60, 291; Resp. Ex. 3 at 2, 9). Respondent's medical records note that he was a battery victim and visited the hospital because he was physically assaulted by three males and coughing up blood. Additionally, the medical records note that he had abrasions on his face and chest wall pain. Moreover, in the clinical insight/diagnostic impression section the doctor noted 1) S/P Assault, 2) Abrasions, and 3) Sinusitis-Chronic. (Resp. Ex. 3 at 9, 13-14, 17-18).
On October 4, 2009, two days after the incident, Respondent took photographs of his hands, which did not depict any injuries. (Tr. 270; Resp. Ex. 4). On that same date, Respondent took a photograph of his elbow, depicting a scab and redness. (Tr. 272; Resp. Ex. 5).
On October 5, 2009, Respondent and his wife met with the Village of Crete's Chief of Police, James Paoletti, at the police station. During this meeting, Respondent and Chief Paoletti discussed the events of October 2, 2009. (Tr. 166, 168-69, 300). Respondent told Chief Paoletti his version of events, gave the Chief copies of his medical bills, and sternly requested a number of times that the Chief drop the charges against him. Chief Paoletti explained to Respondent that
he did not have authority to drop the charges and that the case would be heard before an associate judge at the local Peotone court. Chief Paoletti testified that he felt Respondent was attempting to subvert the criminal justice process by trying to get him to illegally intervene in a criminal investigation. According to Respondent, when he asked to file a complaint against the three golfers who attacked him, the Chief of Police told him no. (Tr. 169, 170-71, 191-92, 194, 300).
After Respondent's meeting with Chief Paoletti, Respondent went to speak to another officer. Given the questionable manner in which Respondent had spoken to him, Chief Paoletti was concerned for Respondent's wife's safety, as well as Respondent's well-being. Consequently, Chief Paoletti approached Respondent's wife, Darci Van Kalker, who was then alone, and asked her if she felt in danger or intimidated by Respondent and whether she needed assistance. He also asked her whether Respondent was receiving any medical treatment or on medication. Mrs. Van Kalker told Chief Paoletti that Respondent was not currently on medication and that things were quite safe at home. (Tr. 172-73, 196-97).
On November 3, 2009, after Judge Nash found Respondent guilty of battery but prior to sentencing Respondent, Mr. Weiss gave an oral impact statement requesting restitution for his medical expenses and that Respondent attend anger management counseling. Additionally, Respondent turned to the golfers and apologized. (Tr. 55, 88-89, 119, 135, 154, 211; Adm. Ex. 2 at 2). According to Respondent, he said to the golfers, "Men, I am so sorry this whole thing happened. It escalated out of control. I don't know how it did, but I'm sorry. I hope you don't hold anything against me. I don't hold anything against you. Let's go forward." (Tr. 285, 296, 301). The four golfers testified that Respondent told them that they had told the truth. (Tr. 55, 89, 119, 135). Further, Respondent's sentence required him to pay Mr. Weiss restitution in the
amount of $990. (Tr. 89-90, 154, 210; Adm. Ex. 2 at 2; Adm. Ex. 3 at 20-21). Respondent wanted to put the October 2, 2009 incident behind him as quickly as possible, so he immediately paid Mr. Weiss's restitution in open court. (Tr. 285-86; Adm. Ex. 3 at 20, 21).
After the trial concluded, Chief Paoletti had a conversation with Mr. Pagorek, who expressed both his and Judge Nash's concern with how Respondent conducted himself at trial. During this conversation, it was decided that Chief Paoletti would inform the ARDC about Respondent. In a January 2010 letter, Chief Paoletti informed the ARDC about the incident involving Mr. Weiss, as well as two additional incidents that occurred just prior to Respondent's arrest. These incidents involved golfers and someone in the immediate vicinity of Respondent's house. With respect to the first incident, a police report was filed and on the date of the hearing, the case was being investigated as an aggravated battery with Respondent as an active suspect. In the second incident, police were dispatched to the scene, but the victims decided they did not want an official police report filed. Chief Paoletti informed the ARDC about these incidents because he was concerned that if these incidents continued someone would eventually get seriously hurt, and he was hoping to prevent this from happening. (Tr. 174-77, 194).
Respondent testified that the October 2, 2009 incident has caused him a great deal of family trauma and hurt. Respondent continues to be scared of the three golfers who attacked him. Due to his fears, he is trying to sell his house for $250,000, which is $150,000 less than the house's cost basis. (Tr. 249).
Respondent has no prior discipline.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator has the burden of proving the misconduct charged by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). Clear and convincing evidence means a degree of proof which, considering all the evidence, produces a firm and abiding belief it is highly probable the proposition at issue is true. Cleary & Graham, Handbook of Illinois Evidence, sec. 301.6 (9th ed. 2009). It is the responsibility of the Hearing Panel to determine the credibility of the witnesses, weigh conflicting testimony, draw reasonable inferences, and make factual findings based on all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300 (1993).
With the above principles in mind and after careful consideration of the evidence presented, we find the Administrator proved by clear and convincing evidence that Respondent 1) committed a criminal act, to wit, battery, that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; and 2) engaged in conduct which is prejudicial to the administration of justice, in violation of Rules 8.4(a)(3) and 8.4(a)(5) of the Rules of Professional Conduct.2
Here, the evidence shows that on November 3, 2009, Respondent was found guilty of battery after a lengthy bench trial before the Honorable Raymond Nash. Judge Nash sentenced Respondent to one year court supervision, which included various conditions, and ordered Respondent to pay a $750 fine and $990 in restitution to Mr. Weiss. Consistent with the Chair's February 27, 2012 pre-hearing ruling, Respondent's battery conviction is conclusive proof of guilt of the crime of battery. Supreme Court Rule 761(f).
Although an attorney's conviction is conclusive proof of guilt and the disciplinary system will not attempt to go behind the conviction and re-analyze the evidence presented in the
criminal case, the circumstances surrounding the crime and an attorney's actual conduct is relevant in determining the appropriate discipline. See Supreme Court Rule 761(f); In re Gold, 77 Ill. 2d 224, 226-27, 396 N.E.2d 25 (1979); In re Ciardelli, 118 Ill. 2d 233, 239-41, 514 N.E.2d 1006 (1987). This is because an attorney is disciplined on the basis of his or her conduct, not merely because of a conviction. In re Rolley, 121 Ill. 2d 222, 233, 520 N.E.2d 302, (1988); Ciardelli, 118 Ill. 2d at 239-41. Consequently, whether an attorney convicted of a crime is disciplined is not contingent on the "technicalities of the sentencing procedure." In re Vavrik, 117 Ill. 2d 408, 413, 512 N.E.2d 1225 (1987); In re Patt, 81 Ill. 2d 447, 452, 410 N.E.2d 870 (1980).
Respondent's November 3, 2009 criminal conviction stemmed from an October 2, 2009 incident where Respondent attacked Mr. Weiss on hole seven of the Lincoln Oaks Golf Course in Crete, Illinois. All four golfers testified consistently, and we find credibly, that Respondent was angry as one of their golf balls damaged the gutter on his house. Additionally, Respondent was cursing at Mr. Baron and Mr. Weiss and demanded Mr. Baron's driver's license. When Mr. Weiss told Respondent that he assumed the risk of a golf ball hitting his house as his house is next to a golf course, Respondent reacted by punching Mr. Weiss in the eye. Respondent then jumped on top of Mr. Weiss and continued to attack him until Mr. Holland pulled Respondent off of Mr. Weiss. Given Respondent's battery conviction and the circumstances surrounding the battery, we find Respondent committed a criminal act in violation of Rule 8.4(a)(3).
We also find Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5). As an attorney, Respondent is an officer of the court and is expected to uphold, and not violate, the law. See In re Lundardi, 127 Ill. 2d 413, 421, 537 N.E.2d 767 (1989); In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1 (1985). An
attorney's violation of the law "demeans the legal profession, brings the legal profession into serious disrepute and causes doubt in the minds of the public as to the integrity of the bar." In re Andros, 64 Ill. 2d 419, 424, 356 N.E.2d 513 (1976).
In determining the sanction to recommend, we consider the facts and circumstances surrounding the misconduct, as well as those circumstances that may mitigate and/or aggravate the misconduct. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). The purposes of discipline are also taken into account. Those purposes are not to punish the individual respondent, but to "protect the public, to maintain the integrity of the profession and to protect the administration of justice from reproach." In re Spak, 188 Ill. 2d 53, 67-68, 719 N.E.2d 747 (1999). See also In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993).
In addition to the proven misconduct, this case presents significant aggravating factors. Despite being found guilty of battery, Respondent's testimony showed a lack of remorse and a failure to acknowledge the wrongfulness of his misconduct. See In re Lewis, 138 Ill. 2d 310, 348, 562 N.E.2d 198 (1990) (finding the attorney's "failure to comprehend the wrongfulness of his actions" and "absolutely no remorse" as aggravating). Instead of demonstrating remorse, Respondent, subsequent to the incident on October 2, 2009, engaged in a deliberate course of conduct to mask his role as the aggressor. From his first contact with a police officer, Respondent attempted to portray himself as the victim, rather than the aggressor.
On October 2, 2009, Respondent delayed in going to the hospital until approximately 7:00 p.m., despite claiming he was not feeling well and believing he might be bleeding from the brain at 2:51 p.m. when he left the police station. Moreover, Respondent testified that despite thinking he was suffering from severe head trauma, he drove himself to the hospital. Respondent
claimed his wife could not drive him because she had to get their children off of the school bus, but then testified that their children typically get off the bus at approximately 4:00/4:30 p.m. We find Respondent's testimony incredible, and believe he only decided to go to the hospital after contemplating that he was on the receiving end of a battery charge and that hospital records might assist him in his defense.
Further, while at the hospital, Respondent informed the hospital staff that he was a victim of an assault perpetrated by three men and coughing up blood. Respondent as an experienced attorney and federal arbitrator knew his representations would be recorded. We find these actions by Respondent to be calculated and self-serving.
Respondent's attempt to cover up his role in the October 2, 2009 incident continued on October 4, 2009, when he took photographs of the tops of his hands, depicting no offensive wounds, and of his elbow, showing a well-developed scab. Due to the nature of the scab, we do not believe Respondent's elbow injury, as depicted in the October 4, 2009 photograph, was a consequence of the October 2, 2009 incident, and we are troubled by Respondent's attempt to convince us otherwise. Moreover, the photograph of Respondent's hands does not convince us that he was the victim. Additionally, on October 5, 2009, Respondent's cover-up continued when he attempted to convince Chief Paoletti to drop the charges against him. Respondent, after considering the battery charge and his upcoming trial, took deliberate steps to portray himself as the victim. Respondent's actions were deceptive and, consequently, significantly aggravating.
Another factor considered in aggravation is the harm Respondent caused Mr. Weiss on October 2, 2009. See Gorecki, 208 Ill. 2d at 364; In re Saladino, 71 Ill. 2d 263, 276, 375 N.E.2d 102 (1978). As a result of Respondent's misconduct, Mr. Weiss suffered lacerations to his face
and arm and a bruised and swollen eye. Additionally, Mr. Weiss had to see an eye doctor and purchase new eye glasses.
In aggravation, we also consider Respondent's role as a federal arbitrator, a position of authority, and how his misconduct was in complete contravention to the responsibilities of that position. Cf. In re Crisel, 101 Ill. 2d 332, 343, 461 N.E.2d 994 (1984) (noting that Crisel's misconduct was in complete contravention to his responsibilities as a State's Attorney); see also In re Sims, 144 Ill. 2d 323, 325, 579 N.E.2d 865 (1991). Moreover, Respondent's attempt to intimidate the golfers by informing them that he was a federal arbitrator aggravates his misconduct.
At the hearing, we heard evidence of two uncharged incidents of misconduct that occurred near the immediate vicinity of Respondent's house and the Lincoln Oaks Golf Course. Although we recognize that uncharged misconduct may be considered in aggravation under some circumstances, neither of these uncharged incidents was sufficiently proved at the hearing. Therefore, we decline to consider these incidents in aggravation. See In re Storment, 203 Ill. 2d 378, 400, 786 N.E.2d 963 (2002) (holding it appropriate to consider uncharged conduct in aggravation when it is similar to the current charges and established by evidence in the record).
In mitigation we consider that Respondent has been practicing for approximately twenty-five years and has not been previously disciplined. See In re Witt, 145 Ill. 2d 380, 403, 583 N.E.2d 526 (1991). Additionally, Respondent's compliance with the conditions of his sentence, which included undergoing an anger management evaluation and swift payment of restitution to Mr. Weiss, is considered in mitigation. Further, Respondent's misconduct is mitigated by the fact that he did not cause harm to any clients. See In re Dombrowski, 97 CH 32, M.R. 15114
(Sept. 28, 1998) (Hearing Bd. at 29-30) citing In re Bizar, 97 Ill. 2d 127, 132, 454 N.E.2d 271 (1983).
The Administrator recommends Respondent be censured. In support of this recommendation, the Administrator relies on In re Anderson, 08 CH 56, M.R. 23331 (Sept. 22, 2009); In re Macharg, 06 CH 9, M.R. 21702 (Sept. 18, 2007); In re Jorgenson, 99 CH 109, M.R. 16996 (Nov. 22, 2000); and In re Delaney, 92 SH 416, MR. 13999 (Sept. 24, 1997). While not recommending a specific sanction, Respondent argues that a censure is inappropriate and distinguishes the cases cited by the Administrator. Respondent also submitted two additional cases where the attorney was censured after being convicted of battery, In re Sorokas, 98 CH 85, M.R. 16071 (Sept. 29, 1999) (censuring Sorokas for conduct relating to his convictions of misdemeanor battery and misdemeanor harassment), and In re Cameron, 94 CH 224, M.R. 10002 (May 19, 1994) (censuring Cameron for conduct stemming from his conviction of two counts of misdemeanor battery).
Although each case is unique and must be resolved in light of its own facts and circumstances, in order to ensure predictability and fairness we generally strive to impose sanctions that are consistent with those imposed in cases involving comparable misconduct. In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994). In our view, the cases cited by the Administrator are sufficiently similar to the present case, and are instructive as to the appropriate sanction. Given Respondent's misconduct and the significant evidence in aggravation, we conclude that a censure is warranted.
In Anderson, discipline was imposed on consent, and Anderson was suspended for 30 days for conduct relating to a conviction of one count of battery. While appearing in court on behalf of his client, Anderson became angry and was ordered out of the courtroom. As a Deputy
Sheriff attempted to escort Anderson from the courtroom, he threw a stack of papers and made contact with the Deputy Sheriff. Anderson pled guilty to battery and was sentenced to probation and required to complete community service and anger management classes. In mitigation, the panel considered Anderson's remorse and cooperation during the ARDC proceedings, as well as Anderson's pro bono legal work. In aggravation, the panel considered that Anderson's misconduct occurred while representing a client before a tribunal.
In Macharg, the Court approved a consent petition recommending Macharg be censured for conduct stemming from a domestic battery conviction. Macharg kicked the five-year old son of his live-in girlfriend in the groin and pled guilty to one count of domestic battery. Macharg was sentenced to 24 months conditional discharge, anger management, and 300 hours of community service. Macharg expressed remorse and was cooperative throughout the disciplinary proceedings. No evidence was offered in aggravation.
In Jorgenson, discipline was imposed on consent and Jorgenson was censured for conduct resulting in a conviction of one count of battery. While at a bar, Jorgenson engaged in a physical altercation with another lawyer because earlier in the day, while at a different bar, the lawyer took Jorgenson's car and left him stranded. The lawyer suffered a fractured orbit of the left eye and a broken nose, as well as multiple lacerations. Jorgenson was adjudged guilty of battery and sentenced to 15 months probation and ordered to pay restitution to the lawyer. In mitigation, Jorgenson paid the court ordered restitution, cooperated in the disciplinary proceedings, and voluntarily participated in anger management.
The attorney in Delaney was censured after being convicted in Texas of the offense of injury to an elderly individual, a felony. Delaney threw an 85 year-old man to the ground, hit him in the face several times, and pushed him through a glass window. The victim suffered a
bruised eye and a cut on his buttocks. Delaney was sentenced to four years imprisonment, which was stayed and probation was imposed. Also, Delaney was ordered to perform 160 hours of community service.
Although no two cases are identical, a censure is consistent with the sanctions imposed in cases involving battery convictions. Like the attorneys in the cases cited by the Administrator, Respondent was extremely angry, attacked an individual, and consequently, was convicted of battery. Although we considered Respondent's argument that the cases cited by the Administrator are factually distinguishable, we are convinced, given the significant aggravating factors in the present case, that a censure is appropriate.
For the foregoing reasons, we recommend Respondent be censured.
1 The complaint also charged Respondent with engaging in "conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770." The Illinois Supreme Court recently stated that "Rule 770 is not itself a Rule of Professional Conduct" and "one does not ?violate' Rule 770. Rather, one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct." In re Thomas, 2012 IL 113035, ? 92. Accordingly, based on the wording of the allegation in the complaint before us, we find no violation of Rule 770.
2 As previously stated in endnote 1, we find no violation of Rule 770.
Cheryl M. Kneubuehl, concurring in part and dissenting in part:
I agree with the majority's findings. I, however, disagree with the majority's sanction recommendation given the significant evidence in aggravation. Specifically, I am troubled that Respondent, a member of the Illinois Bar and a federal arbitrator, took calculated and deceptive steps after the October 2, 2009 incident to cover-up his role as the aggressor. The extensive nature of Respondent's deceitful behavior warrants a more significant sanction than a censure. Consequently, I recommend Respondent be suspended for thirty days.
Cheryl M. Kneubuehl
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 20, 2012.
Kenneth G. Jablonski, Clerk of the