Filed August 9, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
RICHARD STEVEN CONNORS,
Commission No. 04 CH 122
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on September 14, 2011 at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Hearing Board Panel consisting of Terrence M. Burns, Chair, Roxanna M. Hipple and Frederich J. Bingham. The Administrator was represented by Albert S. Krawczyk. Respondent appeared pro se via telephone.
PLEADINGS AND PREHEARING PROCEEDINGS
On October 1, 2004, the Administrator filed a one-count complaint against Respondent pursuant to Supreme Court Rules 761 and 753. The Complaint alleges Respondent engaged in criminal acts, which reflect adversely on his honesty, trustworthiness or fitness as a lawyer. The Complaint also alleges Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation and conduct which tends to bring the legal profession into disrepute. Specifically, the Complaint addresses the judgment of conviction entered against Respondent on September 15, 2004. Respondent was convicted of smuggling cigars from Cuba into the United States.
On October 12, 2004, the Chair allowed the Administrator's motion to stay the proceedings until the completion of Respondent's appellate process in the underlying criminal case. On December 28, 2004, the Supreme Court, pursuant to Supreme Court Rule 761, suspended Respondent from the practice of law effective immediately and until further order of the Court.
On June 2, 2008, the Chair allowed the Administrator's motion to resume proceedings in this disciplinary matter. On October 15, 2008, Respondent filed an Answer to Complaint in which Respondent denied all factual allegations and allegations of misconduct. On November 21, 2008 and January 21, 2009, Respondent's motions for an extension of time to complete discovery were granted. A hearing in this matter was initially scheduled to begin on November 17, 2009, but was continued at Respondent's request due to Respondent's medical issues. On March 17, 2010, Respondent filed motions for voluntary recusal and disqualification of Administrator's counsel. On April 29, 2010, Administrator's counsel declined to recuse himself and Respondent's motion for disqualification of Administrator's counsel was denied.
On August 31, 2010, Respondent filed a motion for sanctions against Administrator's counsel. Respondent argued the Administrator's counsel told Respondent an investigator would meet him to retrieve evidence and the investigator failed to appear. Respondent's motion for sanctions was denied on October 6, 2010. The Chair allowed Respondent's third motion to extend discovery on January 3, 2011. However, Respondent's fourth motion to extend discovery was denied on April 1, 2011. On April 7, 2011, a hearing in this matter was scheduled for July 19, 2011. On June 28, 2011, the Administrator filed a Motion to Deem Admitted Administrator's Requests for Admission of Facts and Genuineness of Documents because Respondent failed to respond to the Administrator's discovery requests. In addition, the
Administrator filed a Motion to Bar the Testimony of Respondent, his witnesses and any other evidence. The Administrator also filed a Motion in Limine to Bar Respondent from Asserting Claims in Contradiction to Supreme Court Rule 761. On July 8, 2011, Respondent filed a motion to continue the hearing because he needed time to respond to the Administrator's motions seeking to bar Respondent's testimony and evidence, but that motion was denied on July 12, 2011.
On July 18, 2011, Respondent filed a second motion to continue the July 19, 2011 hearing date due to a medical emergency. In support of his motion, Respondent stated he was seriously injured in a fall. Respondent's motion to continue was granted and the hearing scheduled for July 19, 2011 was vacated.
On July 18, 2011, Respondent filed his response to the Administrator's Motion to Deem Admitted Administrator's Requests for Admission of Facts and Genuineness of Documents, Motion to Bar the Testimony of Respondent, his witnesses and any other evidence, and Motion in Limine to Bar Respondent from Asserting Claims in Contradiction to Supreme Court Rule 761. On July 22, 2011, a hearing was held via telephone on the above referenced motions. Respondent did not participate. Having considered the motions and responses filed by the parties, the Chair made the following rulings:
Respondent was barred at hearing from presenting testimony, introducing evidence and making any reference or argument that has the purpose or effect of attempting to avoid application of Illinois Supreme Court Rule 761(f) to the federal conviction cited in Administrator's complaint. Further, Respondent was barred from presenting evidence that has the purpose or effect of repudiating or implying the invalidity of the federal conviction cited in the Administrator's complaint. However, Respondent was allowed to testify regarding
mitigation, limited to matters about himself. The hearing was rescheduled to September 14, 2011. Respondent was directed to file a report by September 1, 2011, indicating whether he would appear at hearing in person or participate by telephone. On September 8, 2011, Respondent sent an email to the ARDC indicating he intended to participate in the hearing via telephone.
On September 13, 2011, the day before the hearing, Respondent mailed a Motion for a Stay of Proceeding pending a ruling by the Illinois Supreme Court on his Motion for a Supervisory Order to the Illinois Supreme Court in Springfield, Illinois. On September 14, 2011, the Chair denied Respondent's Motion for a Stay of Proceeding.1
Administrator's exhibits 1, 2 and 14 through 18 were admitted into evidence. Respondent did not offer any exhibits, but testified on his own behalf.
On April 5, 2001, an eight-count indictment was returned against Respondent in the United States District Court for the Northern District of Illinois charging Respondent with conspiracy to smuggle Cuban cigars into the United States, smuggling goods into the United States, violations of the Trading with the Enemy Act and related regulations, and making false statements on a passport application. United States of America v. Richard S. Connors, No. 01 CR 326. (Adm. Ex. 2)
On October 9, 2002, a jury found Respondent guilty of all eight counts of the indictment in 01 CR 326. On September 15, 2004, the following judgments of conviction were made against Respondent:
Respondent is adjudicated guilty of violating Title 18 USC, sec.371, conspiracy against the United States;
Respondent is adjudicated guilty of violating Title 18 USC, sec.545, smuggling goods into the United States;
Respondent is adjudicated guilty of violating Title 5 USC, App sec. 5(b)(1) & 16 & 31 USC CFR sec. 515.201(b)(1), 515.204(a) and 515.410, violation of the Trading with the Enemy Act; and
Respondent is adjudicated guilty of violating Title 18 USC, sec. 1542, making false statements on a passport application.
(Adm. Ex. 14).
Respondent was sentenced to concurrent terms of imprisonment of 37 months on each of the eight counts of the indictment. Upon release from imprisonment, Respondent was sentenced to supervised release for a term of three years. In addition, Respondent was ordered to pay a $60,000 fine and $650 assessment fee. (Adm. Ex. 14).
Respondent filed an appeal from the judgment of conviction entered against him. On March 21, 2006, the United States Court of Appeals, Seventh Circuit, affirmed the judgment of the district court. The Court of Appeals ordered a limited remand with respect to Respondent's sentence. On February 20, 2007, the district court responded to the order, affirming the sentencing order and on March 25, 2008, the Court of Appeals affirmed the sentence imposed by the district court. United States v. Connors, 441 F.3d 527 (7th Cir. 2006). (Adm. Exs. 15, 16, 17 18).
Evidence Offered in Mitigation
Respondent testified his trips to Cuba were for a lawful purpose. He testified he was flying to Cuba because he was engaged to a Cuban woman, who lived in Cuba. Respondent made a request to the United States government to bring her back to the U.S. and legal procedures for a U.S. visa required Respondent to make multiple trips to Cuba. Ultimately, Respondent's fianc?e's visa was approved by the United States government and he was granted permission to bring her to the United States. (Tr. 106-107, 109-110).
Regarding the Respondent's conviction of making a false statement on a passport application, Respondent testified his passport was neither seized by the government nor was his passport detained by the government. (Tr. 108).
Evidence Offered in Aggravation
On January 13, 2006, the Illinois Supreme Court suspended Respondent from the practice of law for one year and until he made restitution in the amount of $8,333.34. In 1999, Respondent endorsed a $25,000 settlement draft in connection with a personal injury matter on behalf of a hospital lienholder without authority and for converting $8,333.34 of the proceeds of the draft. As of the date of the hearing in this matter, Respondent has not paid any restitution and his suspension in case number 03 CH 93 remains in effect. In re Connors, 03 CH 93, M.R. 20523 (Jan. 13, 2006).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). It is the responsibility of the Hearing Panel to determine the credibility and believability of the witnesses, weigh conflicting testimony, draw reasonable inferences and make factual findings based upon all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 308 (1993). In this case, based on the exhibits offered, specifically the judgment against Respondent and the Court of Appeals affirmation of judgment, we conclude the Administrator proved, by clear and convincing evidence, Respondent engaged in all of the alleged misconduct.2
Specifically, we find Respondent engaged in the following misconduct:
commission of criminal acts which reflect adversely on Respondent's honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct; and
engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct.
The charges of misconduct against the Respondent are based upon his conviction stemming from an eight-count indictment in which Respondent was charged with conspiracy, smuggling goods into the United States, violating the Trading with the Enemy Act and making false statements on a passport application. Respondent was found guilty of each charge set forth in the indictment. Respondent was sentenced to thirty-seven months imprisonment and ordered to pay a $60,000 fine and $650 assessment fee. On March 21, 2006, Respondent's conviction was affirmed by the U. S. Court of Appeals for the Seventh Circuit. See United States v. Connors, 441 F.3d 527 (7th Cir. 2006). (Adm. Exs. 15 through 18).
Pursuant to Supreme Court Rule 761(f), the judgment of conviction entered against Respondent in case number 01 CR 326 conclusively establishes that Respondent engaged in criminal conduct for which he was convicted. It has long been the rule in this state that criminal convictions constitute "conclusive evidence of guilt" in attorney disciplinary proceedings. In re Scott, 98 Ill. 2d 9, 16, 455 N.E.2d 81 (1983). It is also a well-established and long-standing principle that a criminal conviction of an attorney for a crime involving moral turpitude is conclusive evidence of the attorney's guilt and grounds for discipline. See Ciardelli, 118 Ill. 2d 233, 239, 514 N.E.2d 1006 (1987); In re Callas, 82 Ill. 2d 6, 14, 411 N.E.2d 271, 277 (1980); In re Steinbrecher, 53 Ill. 2d 413, 420, 292 N.E.2d 422, 425 (1973).
In Ciardelli, for example, the Court stated that it "has held in many cases that the conviction of a crime involving moral turpitude is conclusive evidence of the respondent's guilt
and that grounds for the imposition of discipline exist." Ciardelli, 118 Ill. 2d at 239. Moral turpitude includes conduct "done knowingly contrary to justice, honesty, or good morals" or that involves "fraud or fraudulent conduct." In re Needham, 364 Ill. 65, 70, 4 N.E.2d 19, 21 (1936); In re Vavrik, 117 Ill. 2d 408, 412-13, 512 N.E.2d 1226, 1228 (1987).
There is no doubt the crimes for which Respondent was convicted involved moral turpitude and reflected adversely on his honesty, truthfulness, and fitness as an attorney. Thus, based upon the foregoing principles, the evidence clearly and convincingly established Respondent engaged in the misconduct charged in the allegations of the Complaint.
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. In re Howard, 188 Ill. 2d 423, 434, 721 N.E.2d 1126 (1999). We should not recommend a sanction that will not benefit the public or the legal profession. In re Leonard, 64 Ill. 2d 398, 406, 356 N.E.2d 62 (1976). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 298, 583 N.E.2d 526 (1991).
The Administrator recommended Respondent be disbarred. In support of his recommendation, the Administrator relied on In re Hutul, 54 Ill. 2d 209, 296 N.E.2d 332 (1973) and In re Fumo, 52 Ill. 2d 307, 288 N.E.2d 9 (1972).
In Hutul, the respondent was convicted of defrauding various insurance companies through the use of the mail. He was also convicted of conspiracy. The respondent was sentenced to concurrent prison terms of five years on each count on which he was convicted. The respondent claimed he was innocent of any wrongdoing. Upon consideration of the evidence of misconduct, the Court stated, "it is clear that the respondent's conduct in this series
of frauds upon insurance companies, which resulted in the payment of substantial sums of money to him and his 'clients,' was calculated, knowing and deliberate. His insistence upon his innocence in the face of the evidence adduced at his trial in the United States District Court strains the credulity of this court." The Court found disbarment to be the appropriate sanction.
In Fumo, the disciplinary charges were based on the attorney's guilty plea to a multi-count indictment in federal court arising out of a scheme with a physician "to defraud and obtain money under false pretenses from certain insurance companies and from his own clients." He was sentenced to a three year term of probation, with the conditions that he serve the first 60 days in jail, pay a fine of $5,000 and pay restitution. Fumo, 52 Ill. 2d at 308. In mitigation, the attorney presented evidence that he served the 60-day jail term, paid the fine and made full restitution as ordered by the court. He also presented witnesses, who testified he had a good reputation for honesty and integrity and he was an upstanding member of the community. Additionally, there was evidence the attorney's son had a serious illness and the "efforts to cure the affliction had created an extraordinary financial burden upon him." Id. at 309. The Court pointed out the attorney's misconduct was "not an isolated aberration," but rather was "a deliberate, calculated series of individual acts, over an extended period of time, all designed to extract funds from insurance companies, as well as from his own clients." Id. at 310. The Court concluded the misconduct demonstrated "a lack of fidelity to private trust, tends to defeat the administration of justice and to bring the legal profession into disrepute." Id. at 310-11. The attorney was disbarred.
In In re Vavrik, 117 Ill. 2d 408, 512 N.E.2d 1226 (1987), the attorney was disbarred based on his misconduct of embezzling funds. The Court stated moral turpitude is shown when
the crime involves fraud or fraudulent conduct and any act that demonstrates a lack of personal honesty or integrity may be sufficient to warrant disbarment.
In this matter, Respondent was convicted of smuggling Cuban cigars into the United States, conspiracy, making a false statement on a passport application and violating the Trading with the Enemy Act. Respondent was convicted of crimes involving deceitful and fraudulent conduct. Following the holdings in Fumo, Hutul and Vavrik, we find Respondent's conviction is conclusive evidence of his guilt and due to the egregiousness of his criminal acts, grounds for disbarment.3
Next, we consider any mitigating and aggravating factors present in this matter. Respondent offered minimal mitigating evidence related to facts in the underlying case. Respondent testified his reasons for visiting Cuba on numerous occasions were his fianc?, who lived in Cuba and Respondent's work to bring his fianc? to the United States.
Finally, we consider any aggravating factors. Respondent's prior misconduct is an aggravating factor. In re Guilford, 115 Ill. 2d 495, 505 N.E.2d 342 (1987); In re Levin, 118 Ill. 2d 77, 514 N.E.2d 174 (1987). Respondent converted client funds in 2006 and was suspended for one year and until he paid restitution. As of the date of hearing, Respondent had not paid any restitution owed to his client, which is a significant aggravating factor. See In re Smith, 75 Ill. 2d 134, 387 N.E.2d 316 (1979). Furthermore, Respondent's failure to pay restitution "generally does not enhance the confidence which the public or this [Supreme] Court places in that attorney." In re Fox, 122 Ill. 2d 402, 410, 522 N.E.2d 1229 (1988).
Considering the nature of Respondent's serious misconduct, Respondent's prior discipline, the absence of relevant mitigating factors and the legal precedent, this Panel recommends Respondent be disbarred.
Terrence M. Burns
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 August 9, 2012.
Kenneth G. Jablonski, Clerk of the
1 On October 17, 2011, the Illinois Supreme Court denied Respondent's Motion for a Supervisory Order.
2 The Administrator 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, "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. Further, because this Complaint was filed in 2004, we recognize that Rule 770 was previously listed as Rule 771, which is the Supreme Court Rule listed in the Complaint.
3 The fact we did not find a violation of Supreme Court Rule 770 (formally Rule 771) does not affect our recommendation as to sanction. In re Gerard, 132 Ill. 2d 507 (1989).