Filed July 23, 2012
In re Bruce Paul Golden
Commission No. 09 CH 88
Synopsis of Review Board Report and Recommendation
This matter arises out of Respondent's actions in connection with his applications for financial aid from a private school attended by his daughter. The Administrator charged Respondent with preparing and submitting false information to Francis Parker School for the years 2001 through 2003 in an attempt to obtain financial aid to which Respondent would have not otherwise been entitled and in doing so violating Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770. In addition, the Administrator charged Respondent with failing to respond to a proper request for information from the ARDC in violation of Rule 8.1(a)(2) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
During the lengthy prehearing stage of these proceedings in which the Respondent represented himself, the Chair of the Hearing Panel barred Respondent from presenting substantive evidence related to the alleged misconduct. In addition, due to Respondent's conduct during the prehearing stage, the Chair also ordered that the allegations of the Administrator's Complaint be deemed admitted. Following a hearing, the Hearing Board issued a report and recommendation finding that all of the charges of misconduct had been proven by clear and convincing evidence, by virtue of the admitted allegations in the complaint. Two members of the Hearing Board recommended that Respondent be disbarred. The Chair of the Hearing Panel recommended that Respondent be suspended for three years and until further order of the Court.
Respondent filed exceptions, alleging that the Hearing Board erred by deeming the Complaint admitted, imposing sanctions because he asserted his Fifth Amendment rights, refusing to admit evidence regarding Respondent's physical and mental condition, striking his affirmative defenses and recommending disbarment. Respondent requested that the Administrator's Complaint be dismissed or, in the alternative, that a lesser sanction be imposed. The Administrator requested that this Board affirm the findings of misconduct and the sanction recommended by the Hearing Board.
The Review Board found that the Hearing Board did not abuse its discretion in imposing sanctions and in ordering that the allegations of the Administrator's Complaint be deemed admitted. The Review Board affirmed the findings of fact and conclusions of misconduct as found by the Hearing Board, with the exception of the finding that Respondent violated Supreme Court Rule 770. The Review Board recommended that Respondent be disbarred.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
BRUCE PAUL GOLDEN,
Commission No. 09 CH 88
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
SUMMARY OF PROCEEDINGS
This matter arises out of the Administrator's four count complaint alleging that Respondent engaged in misconduct in connection with his applications for financial aid from a private school attended by his daughter. Counts I through III charged Respondent with preparing and submitting false information to Francis Parker School for the years 2001 through 2003 in an attempt to obtain financial aid to which Respondent would have not otherwise been entitled and in doing so violating Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770. Count IV charged Respondent with failing to respond to a proper request for information from the ARDC in violation of Rule 8.1(a)(2) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
During the lengthy prehearing stage of these proceedings in which the Respondent represented himself, the Chair of the Hearing Panel barred Respondent from presenting substantive evidence related to the alleged misconduct (the "Bar Order"). In addition, due to Respondent's conduct during the prehearing stage, the Chair also ordered that the allegations of the Administrator's Complaint be deemed admitted (the "Admission Order"). To
prove his case, the Administrator relied on the Admission Order and evidence related to an ARDC investigator's service of the Complaint on the Respondent. Respondent was allowed to testify regarding some background information and some evidence in mitigation.
The Hearing Board issued a report and recommendation finding that all of the charges of misconduct had been proven by clear and convincing evidence, by virtue of the admitted allegations in the complaint. Two members of the Hearing Board recommended that Respondent be disbarred. The Chair of the Hearing Panel recommended that Respondent be suspended for three years and until further order of the Court.
Still acting pro se, the Respondent filed exceptions, alleging that the Hearing Board erred by deeming the Complaint admitted, imposing sanctions because he asserted his Fifth Amendment rights, refusing to admit evidence regarding Respondent's physical and mental condition, striking his affirmative defenses and recommending disbarment. Respondent asks that the Administrator's Complaint be dismissed or, in the alternative, that a lesser sanction be imposed. Following the filing of the briefs before this Board, Respondent retained counsel who argued the Respondent's case before this panel. The Administrator requests that this Board affirm the findings of misconduct and the sanction recommended by the Hearing Board.
THE BAR ORDER
Sanctions imposed by a Hearing Panel for discovery abuse or for failure to cooperate or comply with discovery requests are generally left to the discretion of the Hearing Panel Chair, and sanctions should not be reversed absent a clear abuse of discretion. In re Walsh, 94 CH 653 (Review Bd., Feb. 2, 2000), Administrator's petition for leave to file exceptions as to sanction allowed, No. M.R. 16705 (June 30, 2000). An abuse of discretion occurs only when no reasonable person would take the position adopted by the Hearing Board.
In re Auler, 02 SH 102 (Review Bd., March 21, 2005) at 11, recommendation adopted, No. M.R. 20207 (Sept. 26, 2005).
We are persuaded that the Bar Order, entered by the Hearing Board Chair on December 30, 2010, is supported by the record and Hearing Panel's decision was not an abuse of discretion. The entry of the bar order followed many attempts over a year to obtain proper discovery responses from Respondent. The Chair gave Respondent many opportunities to comply with Supreme Court Rule 214 by properly responding to production requests, but Respondent repeatedly attempted to file nonresponsive and meritless objections. Similarly, the Chair gave many opportunities to Respondent to comply with Commission Rule 253 by filing a list of witnesses, but Respondent failed to comply with the Hearing Board Chair's orders.
This Board has upheld similar bar orders. As noted by this Board in In re Horne, 97 CH 98 (Review Bd., Feb. 16, 2000), approved and confirmed, No. M.R. 16743 (June 30, 2000), the Hearing Board is given authority to impose harsh sanctions for noncompliance with discovery. See also, In re Westler, 94 CH 345 (Hearing Bd., Sept. 22, 1994), approved and confirmed, No. M.R. 10606 (Jan. 25, 1996) (attorney barred from testifying or producing documents for failure to appear at deposition and submit witness list); In re Srivastava, 94 CH 844 (Hearing Bd., July 5, 1995), approved and confirmed, No. M.R. 11638 (Sept. 29, 1995) (attorney barred from testifying or producing documents for failure to appear at deposition).
In his pro se brief, the Respondent took exception to the entry of the Admission Order arguing that he was wrongly sanctioned for asserting his rights under the Fifth Amendment of the United States Constitution. At oral argument the Respondent focused his
attention on an argument that the Hearing Board did not have a basis for the entry of the Admission Order, entered by the Hearing Board Chair on January 5, 2011.
Legal Basis for the Admission Order
In this case the record clearly supports the decision of the Hearing Board Chair to enter the Admission Order. At the first hearing date in August 2010, the Chair vacated a previously entered order sanctioning Respondent for failure to comply with discovery by striking the Respondent's answer, deeming the allegations of the complaint admitted, and barring Respondent from testifying or presenting any witnesses on his behalf. The Chair held that the order was vacated without prejudice and gave the parties a deadline for completing discovery, including Respondent's deposition. The Chair stated that the Administrator could renew the motion for sanctions on or before October 15, 2010, thus prompting the Administrator to do so after Respondent failed to appear for the continued deposition or comply with discovery requests, including the filing of a proper response to a request to admit. Notably, Respondent did not assert his Fifth Amendment rights in his response to the request to admit.
Necessity of a "Prove-Up"
At oral argument, Respondent's counsel argued that even if the Hearing Board was justified in imposing sanctions against Respondent, the Administrator should have been ordered to "prove up" the charges of misconduct. In support, counsel did not cite to any cases but relied on the language of Commission Rule 236, which states that when an attorney fails to answer a complaint, the complaint "shall be deemed admitted, and no further proof shall be required." Counsel argued that since the Administrator was basing the motion for sanctions on Supreme Court Rule 219 as opposed to Commission Rule 236, and since Rule 219(c) does not contain the language "no further proof shall be required," the Administrator should have been
required to put in its case as if the allegations were disputed. Respondent's counsel noted, again without citation to any case precedent, that in civil cases, where a default is entered, the other party must still then "prove up" its case.
We are not persuaded. In civil cases it is true that when a default judgment is entered for discovery abuses pursuant to Supreme Court Rule 219, the prevailing party must still "prove up" damages. However, the prevailing party is not required to prove up the liability allegations of their complaint. See e.g., Berglind v. Paintball Business Ass'n, 397 Ill. App. 3d 635, 921 N.E.2d 432 (1st Dist. 2009). In our view, the sanction portion of the case is analogous to damages in a civil case. In disciplinary cases where the misconduct allegations of the Administrator's complaint have been deemed admitted for failure to comply with discovery, the Administrator is not required to "prove up" or submit evidence in support of the misconduct allegations of the complaint. The hearing is then limited to evidence in mitigation and aggravation and to an argument as to the appropriate sanction. See, e.g., In re Spiezer, 00 SH 49, (Review Bd., March 28, 2002), Administrator's petition for leave to file exceptions as to sanction allowed, No.M.R. 18161 (Sept. 19, 2002); In re Hinterlong, 09 SH 46 (Hearing Bd., Feb. 22, 2010), approved and confirmed, No. M.R. 23811 (May 18, 2010) (when Respondent admits in answer some of the facts alleged in a complaint, it is unnecessary for the Administrator to present evidence to prove the admitted facts).
The case of In re Horne, 97 CH 98 (Review Bd., Feb. 16, 2000), approved and confirmed, No. M.R. 16743 (June 30, 2000) illustrates the point. In Horne the Hearing Board deemed the misconduct allegations of the complaint admitted and barred the attorney from producing evidence at the hearing. In conduct similar to Golden, the respondent attorney in Horne moved for a continuance of the first prehearing conference but then failed to appear at the
continued conference. He filed a response to a notice to produce objecting to every request as overbroad and irrelevant. When the Administrator filed a motion to compel the production of documents, the attorney sought and received time to respond to the motion but he never filed a response. He did not appear for his scheduled deposition. He later claimed that he was caring for an ill son at the time of his deposition but he did not contact counsel for the Administrator on the day of his deposition to explain his absence. On review, this Board found no abuse of discretion in deeming the misconduct allegations against Horne admitted, noting that the attorney had engaged in a pattern of procrastination. Review Bd. Report at 11. Golden similarly conducted himself in this case and as explained there is no reason to override the Hearing Board's conclusion.
The Fifth Amendment
We now turn our attention to the Respondent's contention that he was disciplined for asserting his rights under the Fifth Amendment of the United States Constitution. First, he never clearly stated that what rights under the Fifth Amendment he was asserting. The Fifth Amendment has several distinct provisions. Below we quote in its entirety the Fifth Amendment inserting numerals to indicate the distinct provisions.
(1) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; (2) nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, (3) nor shall be compelled in any criminal case to be a witness against himself, (4) nor be deprived of life, liberty, or property, without due process of law; (5) nor shall private property be taken for public use without just compensation."
All the Respondent ever stated in response to discovery requests was that he refused to cooperate based upon "his rights afforded a U.S. citizen." The phrase is meaningless and appears to be designed to obfuscate and delay. Unlike the Respondent in the New York case Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625 (1967), Golden was not disciplined for asserting his Fifth Amendment rights. Golden was disciplined for serious misconduct related to filing false financial information in order to obtain a significant benefit. His conduct and failure to cooperate in the hearing process led to the Admission Order and Bar Order both of which, as explained above, were supported by the record. His attempt to hide behind the "Fifth Amendment" which the Respondent did in his pro se brief was totally meritless. We appreciate that his retained counsel did not even attempt to go down this path.
STRIKING THE AFFIRMATIVE DEFENSES
In his brief, the Respondent argued that the Hearing Board erred in striking his affirmative defenses. These affirmative defenses are briefly summarized as follows:
that he was under severe psychological and mental disabilities;
that he was severely depressed and suicidal;
that he was under moral and economic duress;
that he could not exercise his free will;
that he had arranged for his daughter to be admitted to another school in 2003-2004;
after he filed for divorce his wife applied for financial aid for his daughter's high school;
the allegations do not involve the practice of law;
the allegations only involved the Francis Parker high school seven to nine years ago; and
the Respondent had been an outstanding citizen and had done good deeds.
As noted by both the Administrator and Respondent in their briefs, an affirmative defense seeks to defeat the cause of action, even if the allegations of the complaint are true. Leyshon v. Diehl Controls North America, Inc., 407 Ill. App. 3d 1, 9, 946 N.E. 2d 864 (1st Dist. 2010). In this matter, the Chair of the Hearing Panel struck the affirmative defenses finding that Respondent's defenses were not affirmative defenses but were instead matters that Respondent could raise in mitigation of his misconduct.
Respondent claims his defenses are true affirmative defenses as they raise issues of mental state, lack of capacity, moral duress, and economic duress. While Respondent is correct that duress is sometimes listed as a possible affirmative defense, Respondent provided no support for his claim that moral and economic duress are recognized defenses to professional misconduct. Evidence of mental infirmities and depression are also not defenses to misconduct in a disciplinary proceeding, although such evidence may be offered in mitigation when considering the sanction. See, e.g., In re Kuhlman, 96 CH 469 (Review Bd., Aug. 16, 1999), Administrator's petition for leave to file exceptions as to sanction allowed, No. M.R. 16169 (Nov. 19, 1999).
Attorneys may be disciplined for conduct unrelated to their law practice or representation of a client. See, e.g., In re Imming, 131 Ill. 2d 239, 255, 545 N.E. 2d 715 (1989). In In re Chandler, 161 Ill. 2d 459, 473, 641 N.E. 2d 473 (1994), the lawyer was disciplined for false statements made in a personal loan application. The Court stated, "That the present fraud concerns an attorney's personal life rather than professional affairs is of no moment here. The fraudulent act of an attorney acting in his own behalf in which he seeks personal gain, directly or indirectly, to the detriment of honesty, is no less reprehensible than when he acts on behalf of his client." 161 Ill. 2d at 480.
Similarly, the fact that the conduct occurred seven to nine years before the filing of the complaint would not bar the action, as there is no statute of limitations in disciplinary proceedings. In re Owens, 125 Ill. 2d 390, 401, 532 N.E.2d 248 (1988). Most of Respondent's remaining defenses raise facts that occurred after the alleged misconduct and, again, would not have any bearing as to whether Respondent violated the Rules of Professional Conduct. Respondent also suggests that his wife may have influenced his behavior, when he claimed as a defense that he lacked free will. However, Respondent would still be responsible for his actions even if he acted at the direction of another. IRPC, Rules 5.2(a) and 8.4(a). Finally, Respondent's good deeds and charitable activities may mitigate the recommended sanction, but cannot defeat the Administrator's cause of action. See, e.g., In re Chandler, 161 Ill. 2d 459, 641 N.E.2d 473, (1994) (The Court noted, in suspending the attorney for false statements in a loan application and on a bar application, that the primary consideration in determining the extent of discipline is the protection of the public and the integrity of the profession).
As set forth in the Administrator's Complaint and as found by the Hearing Board, Respondent sought financial aid for his daughter's attendance at Frances Parker, a private school in Chicago for the 1999-2000 school year (Count I), the 2002-2003 school year (Count II) and the 2003-2004 school year (Count III). The school required parents applying for financial aid to submit an application, entitled Parents' Financial Statement (PFS). The statement requested information about the parents' income for the preceding year. Parents were also required to submit a copy of their federal income tax returns for the preceding year with the statement.
Respondent prepared and signed the Parents' Financial Statement for each of the years noted. Respondent falsely declared that the information in the document was true, accurate
and complete. Respondent submitted false income amounts to Francis Parker on his PFS in order to be eligible for financial aid and with the intent to mislead the school. In addition, Respondent submitted to Francis Parker false income tax returns for the years 2000, 2001 and 2002, substantially understating the income he declared on his tax returns filed with the Internal Revenue Service for those years.
As a result of Respondent's conduct as set for the in Counts I through III, the Hearing Board concluded, and we agree, that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4).
The Hearing Board also found that Respondent engaged in conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770. In January 2012, the Illinois Supreme Court in In re Thomas, 2012 IL 113035 (Jan. 20, 2012), concluded that an attorney who engages in misconduct does not "violate" Supreme Court Rule 770. In light of the Supreme Court decision in In re Thomas this Board finds no violation of Supreme Court Rule 770.
In addition, as found by the Hearing Board and as set forth in Count IV of the Administrator's Complaint, Respondent failed to cooperate with the ARDC. After an investigation into Respondent's conduct was initiated, the Administrator attempted on three separate occasions between March 20, 2009 and April 15, 2009 to serve Respondent with a subpoena duces tecum by certified mail. The subpoenas directed Respondent to appear at the offices of the ARDC on a certain date to provide information regarding the matters outlined in Counts I through III. Each of the certified mailings was returned unclaimed.
On April 6, 2009, an ARDC investigator telephoned Respondent. Respondent answered the call. The investigator informed Respondent that he was attempting to serve
Respondent with a subpoena. Respondent replied that he was not going to accept service or participate in the proceedings. He further stated that the ARDC should just proceed with what it had to do.
On July 1, 2009, Respondent was personally served with a subpoena duces tecum directing him to appear on July 7, 2009 at the offices of the ARDC to testify and produce documents. Respondent did not appear for his sworn statement on that date or at any other time. He never produced the documents requested in the subpoena. Respondent's failure to properly respond to requests for information caused delays in the proceedings.
We affirm the Hearing Board's findings Respondent failed to respond to a lawful demand for information from a disciplinary authority in connection with a lawyer disciplinary matter in violation of Rule 8.1(a)(2) and Commission Rule 53. The Hearing Board again found that Respondent violated Supreme Court Rule 770. In light of the Supreme Court decision in In re Thomas, this Board again finds no violation of Supreme Court Rule 770.
Respondent testified he graduated from Harvard Law School in 1969. Following graduation he worked on the development of a reading machine for the blind. He practiced law at McDermott, Will, and Emery from 1970 through 1991, when he was asked to leave following the disclosure that one of his clients was running a Ponzi scheme. After leaving the firm, he became a sole practitioner. He is currently on inactive status and as of the hearing had not practiced law in four or five years. He has not been previously disciplined.
Respondent testified he had been experiencing health problems, including an abnormality in the brain. He was under a doctor's care in his divorce case, which has been
pending for eight years. He was not allowed by the Chair to testify about his specific mental health issues or his suicidal ideation because of the Bar Order.
Over the years, he has participated in various charitable activities, including fundraising activities for the American Heart Association, the American Cancer Society and the Jewish United Fund. He coached a Little League team. He has also volunteered his time to organizations that assist entrepreneurs.
In its report, the Hearing Board found in mitigation that Respondent had not been previously disciplined and had participated in charitable causes. The Hearing Board also found aggravating factors. The Hearing Board concluded that "Respondent behaved in a manner which is unacceptable for a practicing attorney"; noted that Respondent evaded service of the Complaint; made multiple frivolous arguments and repeated the arguments after they had been rejected by the Chair; failed to participate in four pre-hearing conferences without any explanation, one of which had been rescheduled at his request; repeatedly delayed his compliance with routine discovery; demonstrated a "palpable level of anger and indignation" during the hearing; and demonstrated an indifference to the disciplinary process by leaving the hearing before its conclusion.
Given his misconduct and these aggravating factors, a majority of the Hearing Board concluded, "Based on our observations of Respondent, we are convinced our duty to protect the public requires us to recommend disbarment." The Chair of the Hearing Panel agreed with the findings in aggravation and agreed that Respondent had been uncooperative during the disciplinary proceeding, but recommended that Respondent be suspended for three years and until further order of the Court.
In recommending a sanction we are mindful that the purpose of the attorney disciplinary system is not to punish the attorney for his misconduct, but "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, this Board must consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). 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). A Hearing Board's recommendation as to a sanction is entitled to deference when the Board assessed the attorney's demeanor in connection with its recommendation. In re Schencker, 95 CH 704 (Review Bd., Dec. 30, 1997), approved and confirmed, No. M.R. 14598 (March 23, 1998).
Respondent engaged in serious misconduct. Over a period of several years, he provided financial aid applications to his daughter's school and included fraudulent tax returns in order to receive a financial benefit to which he was not entitled. As explained, he also failed to cooperate in the disciplinary investigation in many ways. Although Respondent contends that his behavior during the pre-hearing process and the hearing was proper and that he "fully participated in the process," the record demonstrates otherwise. An attorney's conduct in the disciplinary proceedings is a proper consideration when determining an appropriate sanction. See, e.g., In re Samuels, 126 Ill. 2d 509, 535 N.E. 2d 808 (1989); In re Zurek, 99 CH 45 (Review Bd., March 28, 2002), recommendation adopted, No. M.R. 18164 (Sept. 19, 2002).
In In re Chandler, 161 Ill. 2d 459, 641 N.E.2d 473 (1994), the lawyer submitted a mortgage application for the purchase of a home that contained false statements, including the amount of her income. In mitigation, she expressed remorse for her actions, cooperated with the ARDC, and presented persuasive character testimony. Despite the substantial evidence offered in mitigation, the attorney was suspended for three years and until further order of Court. Similarly, in In re Freidman, 08 CH 32 (Review Bd., Jan. 14, 2010), Administrator's petition for leave to file exceptions allowed, No. M.R. 23720 (May 18, 2010), despite substantial evidence in mitigation, the lawyer was suspended for three years and until further order of Court for providing false information on his law school application, changing his grades on his law school transcripts, submitting the altered transcripts to prospective employers, and failing to disclose information regarding these activities on his Illinois Character and Fitness questionnaire.
Disbarment has been imposed when the misconduct has been intentional and egregious and where there has been less compelling evidence in mitigation. In In re Bell, 147 Ill. 2d 15, 588 N.E.2d 1093 (1992), the attorney was disbarred for engaging in numerous acts of misconduct, including filing five false loan applications with banks, testifying falsely before the Administrator, and submitting a false affidavit to the Supreme Court of Tennessee). See also, In re Paden, 04 CH 116 (Review Bd., Oct. 5, 2007), recommendation adopted, No. M.R. 22089 (May 19, 2008) (disbarment for forgery and false statements in connection with mortgage fraud).
Given the serious misconduct in this matter involving intentional fraud and deception, and the factors in aggravation of the misconduct as noted by the Hearing Board, we agree with the Hearing Board's recommendation and we recommend that Respondent be disbarred. We give deference to the Hearing Board's assessment of the Respondent's demeanor
in connection with the recommendation of a sanction and we are mindful that the purpose of discipline is not to punish the attorney but to protect the public and the integrity of the legal profession.
Accordingly, we affirm the findings of fact and the conclusions of misconduct as found by the Hearing Board, with the exception of the finding that Respondent violated Supreme Court Rule 770. We recommend that Respondent, Bruce Paul Golden, be disbarred.
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 Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on July 23, 2012.
Kenneth G. Jablonski, Clerk of the