Filed August 30, 2012
In re Kenneth Alan Goldman
Commission No. 2010PR00028
Synopsis of Review Board Report and Recommendation
This matter came before the Review Board on the Administrator's exceptions to the Hearing Board's sanction recommendation. Goldman pled guilty in Colorado, on November 10, 2009, to felony internet sexual exploitation of a child and misdemeanor obscenity-wholesale promotion. The charges stemmed from Goldman's internet communications with an undercover police officer posing as a 12-year-old girl. Goldman was placed on probation until November 10, 2013, on the misdemeanor charge. The court deferred Goldman's conviction on the felony charge.
The Hearing Board found that Goldman engaged in a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer, in violation of Rule 8.4(a)(3); engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and engaged in conduct which tends to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. It recommended that Goldman be suspended until November 10, 2013, the date when his criminal probation ends, with the suspension stayed in its entirety by disciplinary probation.
On review, the Administrator argued that Goldman is not a candidate for disciplinary probation and should be suspended for three years and until further order of the court. Goldman asked the Review Board to adopt the Hearing Board's recommendation.
In the interests of protecting the public and the integrity of the legal profession, the Review Board recommended that Goldman's license be suspended until he successfully completes his criminal probation and then demonstrates to the Court that he is fully rehabilitated. The Review Board determined that the egregious nature of the misconduct, Goldman's pervasive mental disorders, and his need for continuing treatment further support a suspension until further order of the court. Accordingly, the Review Board recommended that the Hearing Board's findings of misconduct be affirmed, except for the finding that Goldman violated Supreme Court Rule 770, and that Goldman's license be suspended until November 10, 2013, and until further order of the court.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
KENNETH ALAN GOLDMAN,
Commission No. 2010PR00028
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator charged Respondent, Kenneth Alan Goldman, with misconduct related to his November 2009 guilty plea in the state of Colorado to misdemeanor obscenity-wholesale promotion and felony internet sexual exploitation of a child. Respondent admitted that he engaged in the conduct that led to the criminal charges against him. The Hearing Board found that Respondent engaged in a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer, in violation of Rule of Professional Conduct (hereinafter "Rule") 8.4(a)(3); engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and engaged in conduct which tends to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. The Administrator charged Respondent with engaging in dishonest conduct, in violation of Rule 8.4(a)(4), but the Hearing Board determined that the Administrator did not prove that charge.
The only issue on review is the recommended sanction. The Hearing Board recommended that Respondent's license be suspended until November 10, 2013, the date on which his criminal probation ends, with the suspension stayed in its entirety by disciplinary probation. The Administrator argues that disciplinary probation is not appropriate under the
circumstances of this case, and Respondent should be suspended for three years and until further order of the court. Respondent asks the Review Board to adopt the Hearing Board's recommendation.
The evidence presented to the Hearing Board is set forth in detail in the Hearing Board's Report and Recommendation. We need not repeat all of the facts, but set forth those relevant to our consideration of the sanction.
Respondent was admitted to practice law in Illinois and Massachusetts in 2000. He worked for several corporations in the area of real estate law until 2008, when he was laid off. He is now a sole practitioner and handles primarily real estate and corporate matters. Respondent shares office space with other lawyers and a stock-trading firm.
Respondent has been married since 1999 and has five young children. He testified that he is deeply committed to his Orthodox Jewish faith and is very involved in religious activities.
Respondent testified that he began using the internet for sexual gratification about six months after he got married. In 2002, he began frequenting sexual chat rooms and spent up to six hours per day in the chat rooms. Respondent reported that he had hundreds of chats prior to his arrest. In the chat rooms, Respondent used a false name, "johntoes," and gave a false age.
Criminal Proceedings Related to Conversations with "Amy Girl"
On October 30, 2008, Respondent initiated a conversation with "amygirlco1996" (Amy Girl). This was the undercover profile for Shawn M. Cronce, an officer with the Douglas County, Colorado Sheriff's Office. Amy Girl portrayed herself online as a 12-year-old girl from Highlands Ranch, Colorado. Between October 30, 2008, and January 12, 2009, Respondent had
four sexually explicit online conversations with Amy Girl. Amy Girl identified her age as 12 years old numerous times during these conversations.
Respondent focused the conversations on urination and masturbation. He told Amy Girl that he wanted her to "pee on a towel" while masturbating and asked her to sit on the edge of the bathtub and "see how far u can pee." He told Amy Girl, this "turns me on so badly." Respondent sent Amy Girl a picture of himself from the waist up and also sent her two pictures of an erect penis. He stated to Amy Girl that it was a picture of his penis, but later told police that it was a picture he found on Craigslist. He asked Amy Girl to send him a picture of herself via webcam.
In relation to his communications with Amy Girl, Respondent was charged on January 15, 2009, in Douglas County, Colorado, with three counts of internet sexual exploitation of a child and two counts of promotion of obscenity to a minor. Respondent pled guilty on November 10, 2009, to one count of internet sexual exploitation of a child, a felony, and one count of obscenity-wholesale promotion, a misdemeanor.
Respondent underwent numerous assessments as part of the criminal proceedings. Gary Reser and Charla Thorstad, treatment providers with Colorado Specialized Offender Services, evaluated Respondent and prepared an Offense Specific Mental Health Evaluation ("evaluation"). At the time of the evaluation, when assessing Respondent's risk factors, his severity of denial and attitude toward treatment were assessed as high risk. The evaluation recommended that Respondent receive treatment that focuses on taking responsibility for his sexual offense, sexual adjustment, sexual addiction, cybersex addiction, urophilia, and anger management. Respondent took screening tests, which indicated a non-deviant sexual profile. He also underwent a Parental Risk Assessment, which determined that he posed no risk to his own children.
On November 10, 2009, Respondent was placed on probation for four years on the misdemeanor charge, with an end date of November 10, 2013. The Douglas County court deferred judgment on the felony conviction for four years, conditioned upon Respondent's compliance with the terms of his probation. If Respondent successfully completes his probation, he can move to withdraw his guilty plea and the felony charge will be dismissed. Respondent is not required to register as a sex offender in Illinois because of the deferred judgment on his conviction.
Criminal Proceedings Related to Conversations with "Brati"
Between May 19, 2008, and June 11, 2008, Respondent had conversations with "UC/Brati_T95" (Brati), which was the undercover persona of Denver police officer Teresa Gessner. The parties stipulated that if called as a witness Officer Gessner would testify consistently with her affidavit and application for an arrest warrant of January 29, 2009, which included the following information. Brati told Respondent that she was 14 years old. Respondent told Brati that he liked watching girls "pee." He also told Brati that he wanted to lick her vagina after she urinated on his face. Respondent asked Brati to send him her dirty panties and directed her to a pornographic website for "pee porn." On two occasions, Respondent gave Brati the phone number to his office and asked her to call him there. Officer Gessner, posing as Brati, called and recorded the conversations. During the conversations, Respondent turned on his webcam, displayed his penis, masturbated, and ejaculated on his office desk. Respondent testified that his goal in exposing himself to Brati was "[t]o get her to do what I was doing, masturbation."
Respondent was charged in Denver County in relation to his communications with Brati. While the Douglas County case was proceeding, the Denver County charges were dismissed.
Respondent's Probation and Treatment
The supervision of Respondent's probation was transferred from Douglas County, Colorado, to Cook County. The terms of probation prohibit Respondent from using the internet except for employment purposes, being in proximity to minors except for his own children, and owning any sexual paraphernalia. Both Cook County and Colorado probation officials monitor Respondent's computer usage. Respondent may not travel outside the State of Illinois, must abide by a 10:00 p.m. curfew, and is subject to random drug tests and unannounced police visits and searches of his computer. He is further required to complete sex offender treatment at the Center for Contextual Change, which provides treatment for sex offenders as well as victims of sexual abuse.
Cook County Probation Officer Wendy Joslin was Respondent's supervising probation officer until April 2011, when she transferred out of the sex offender department. Ms. Joslin testified that Respondent had made good progress while on probation and has had no violations of the conditions of his probation.
Respondent has been receiving treatment from Joe Falco and Kelli Underwood at the Center for Contextual Change since March 2010. Ms. Underwood is a licensed clinical social worker. She sees Respondent weekly for group therapy and once or twice a month for individual therapy. Respondent's treatment program will last from two to four years. At the time of the hearing, Respondent was in the second phase of a three-phase treatment model. Ms. Underwood described Respondent as very motivated and hardworking.
Respondent testified that he is not sexually interested in minors and did not believe that Amy Girl or Brati were underage. He believed he was "role-playing" with adult women. Respondent testified that he has "zero interest" in urination for sexual gratification and that his "urine chat" was a "vehicle that would often get me to somebody who was willing to
engage with me quickly and to get to that point of sexual arousal." Respondent denied any sexual attraction to urination because ?[t]his has never carried over into any realistic situations." When asked whether he was interested in children between the ages of 12 and 17, Respondent answered, "Absolutely not." Respondent testified that if he ever engaged with someone he sensed was a child, he "would click off." He further testified that he did not "click off" when Amy Girl said she was 12 because people misrepresented their age all the time so "it wasn't registering. I didn't think about it."
Arnold D. Tobin, M.D., a psychiatrist and psychoanalyst, testified on Respondent's behalf. Respondent began receiving treatment from Dr. Tobin in February 2009. Respondent told Dr. Tobin about the conduct that led to his arrest, and Dr. Tobin has read about twenty pages of Respondent's internet chats. Dr. Tobin testified that it was clear from what he read and what Respondent told him that Respondent and the other people involved in the chats were knowingly "play acting" sexual roles.
Dr. Tobin diagnosed Respondent with obsessive-compulsive disorder and sexual addiction to masturbation while using the internet, which falls in the category of paraphilia. He did not diagnose Respondent with urophilia because he considers it to be a symptom, not a diagnostic term. Dr. Tobin did not diagnose Respondent with hebephilia, because that diagnosis is not included in the DSM-IV. Dr. Tobin does not believe that Respondent thought he was chatting with minors or engaged in any predatory behavior. Rather, the central issue is Respondent's addiction to masturbation. Dr. Tobin testified that he believes Respondent was forced into sex offender treatment and does not need to receive such treatment. Dr. Tobin believes that Respondent's prognosis is excellent, and he presents no risk for recidivism as long
as he remains in treatment. He testified that Respondent's treatment is "going to take a long time."
Stafford Henry, M.D., who is board certified in general psychiatry, addiction psychiatry, and forensic psychiatry, examined Respondent at the request of the Administrator. Dr. Henry found Respondent's denial of any interest in underage girls or in urination not credible based on the nature of his chats with Amy Girl and Brati. Nonetheless, Dr. Henry opined that there was no mental health-related reason why Respondent could not comply with the Rules of Professional Conduct if he continued to comply with his treatment recommendations.
Dr. Henry diagnosed Respondent with urophilia, which is an intense sexual arousal to urine, and hebephilia, which is a paraphilia that focuses on the pre-adolescent phase of 12 to 14 years of age. Dr. Henry found clinically significant Respondent's references to himself as "the pee guy," his frequent references to urine including his statement to Brati that he wanted her to urinate on her face, and his direction to Brati for visiting a "pee porn" website. Dr. Henry testified that the diagnoses of Joe Falco and Gary Reser corroborated his diagnosis.
Dr. Henry found Respondent's claim that he could discern between an adult and a child in his internet chats "specious and not at all credible." Dr. Henry testified that if Respondent continues to deny that he has an attraction to underage girls, it would be an impediment to his treatment. Dr. Henry was of the opinion that Respondent should continue treatment at the Center for Contextual Change, continue treatment with Dr. Tobin, and adhere to the conditions of probation.
Dr. Henry and Dr. Tobin disagreed on several key issues. Dr. Tobin does not agree with Dr. Henry's diagnoses of hebephilia and urophilia. Dr. Tobin does not believe that Respondent is sexually interested in underage girls because he has never tried to meet anyone he conversed with online, while Dr. Henry believes Respondent's interest is apparent from his
chats. Dr. Henry questioned Dr. Tobin's understanding of Respondent's conduct because Dr. Tobin did not review transcripts of Respondent's chats until he had treated Respondent for almost one year. Dr. Henry also believed that Dr. Tobin inappropriately downplayed the importance of Respondent directing Brati to a pornographic website.
Attorney Jay Rubenstein testified that he is a longtime friend of Respondent and his wife. He has been supportive of Respondent and his family since Respondent's arrest. Respondent has a program called Covenant Eyes installed on his computer, which reports all of the websites Respondent visits to Attorney Rubenstein and one of Respondent's rabbis. Respondent has subscribed to Covenant Eyes for two and one-half years. Attorney Rubinstein has reviewed all of Respondent's reports and has never seen anything improper.
Attorney Rubinstein testified that Respondent has an excellent reputation for honesty and integrity in the West Rogers Park Orthodox Jewish community, but he does not know if many people know the details of Respondent's conduct. Attorney Rubinstein was unaware of some of Respondent's conduct but testified after learning of it that his opinion of Respondent would not change.
Rabbi Shmuel Fuerst, Rabbi Avrohom Alter, and Rabbi Efraim A. Twerski testified that Respondent has an excellent reputation within his religious community but many people do not know about his criminal conduct. They further testified that they believe Respondent to be a fundamentally good person who made a mistake that he truly regrets. In their view, Respondent's relationships with his wife and family have improved since his arrest and Respondent has become more responsible. The rabbis were not aware of some of the details of Respondent's conduct, including his lengthy history of sexually related chatting or his transmission of video of himself masturbating.
Respondent expressed his remorse and testified that he takes his profession very seriously. He believes his addiction is under control. He testified that he will not repeat his misconduct because he would lose his wife, family and religious community if he did so. He is very active within community organizations and has become a licensed EMT so he can help with a community-based 911 response unit.
The parties do not challenge the findings of misconduct. The Hearing Board, which issued its Report prior to the decision in In re Thomas, 2012 IL 113035 (Jan. 20, 2012), includes a finding that Respondent violated Supreme Court Rule 770. The Court clarified in Thomas that "Supreme Court Rule 770 is not itself a Rule of Professional Conduct ? [r]ather, one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct." Thomas, 2012 IL 113035. Thus, the finding that Respondent violated Supreme Court Rule 770 cannot stand. This does not affect our sanction recommendation, because Respondent is subject to discipline based on his violations of Rules 8.4(a)(3) and 8.4(a)(5).
The Hearing Board recommended that Respondent be suspended from the practice of law until November 10, 2013, with the suspension stayed in its entirety by probation, which would also run until November 10, 2013. The Administrator asserts that Respondent is not a candidate for probation and should be suspended for three years and until further order of the court. For the following reasons, we recommend that Respondent be suspended from the practice of law until November 10, 2013, and until further order of the court.
We seek to recommend a sanction that is consistent with sanctions imposed in similar cases (Timpone, 157 Ill. 2d at 197, 623 N.E.2d 300) while considering the unique circumstances of each case, including the nature of the misconduct and any factors in aggravation and mitigation. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991). A sanction
should not be punitive, but should protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). It is appropriate to consider the deterrent value of a sanction as well as "the need to impress upon others the seriousness of the misconduct at issue." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000). The Hearing Board's sanction is advisory. In re Ingersoll, 186 Ill. 2d 163,178, 710 N.E.2d 390 (1999).
Our recommendation takes into consideration Respondent's very troubling misconduct as well as the factors in mitigation and aggravation. The mitigating evidence includes Respondent's lack of prior discipline and cooperation with his criminal and disciplinary proceedings. The Hearing Board found Respondent to be genuinely remorseful and committed to preventing himself from relapsing. We have no reason to disagree with this assessment.
The Hearing Board gave substantial weight to the character evidence from Respondent's three rabbis. The rabbis strongly believe that Respondent is a fundamentally good person who made mistakes and is trying to make up for them. Although the rabbis were not aware of the extent of Respondent's addiction or of some of the more sordid details of his acts, we have no reason to disregard their testimony about Respondent's remorse and commitment to his rehabilitation. That said, Respondent's character evidence does not substantially impact our recommendation due to the severity of Respondent's misconduct.
The Hearing Board determined that Respondent's misconduct did not involve the practice of law. However, Respondent admittedly engaged in sexually related online chats while at work for a corporation where he was employed as in house counsel. On at least two occasions as part of his communications with Brati he transmitted video of himself masturbating and ejaculating on his office desk. Respondent readily acknowledged that, had he been discovered, his behavior would have caused "[e]mbarrassment to the company, embarrassment to my
colleagues, embarrassment to the department, embarrassment to, you know, many people on many levels."
Respondent's communications with Brati were not included in the disciplinary charges, but we may consider them in aggravation. See In re Lewis, 138 Ill. 2d 310, 345-46, 562 N.E.2d 198 (1990). Like the Hearing Board, we conclude that this conduct is a significant aggravating factor.
Also in aggravation, Respondent engaged in repeated misconduct for his own gratification. See Clark, 97 CH 111, Hearing Board at 24. This factor is tempered, though, by the fact that Respondent's conduct was related to a mental disorder for which he was not receiving treatment at the time.
There is no question that Respondent engaged in egregious criminal conduct involving moral turpitude. We cannot agree with the Hearing Board that a suspension stayed entirely by probation would protect the interests of the public and the profession, nor do we agree that the case law supports a fully stayed suspension. The Court has imposed terms of suspension on attorneys who commit sex offenses, and this case should be no exception. See In re Mateas, 00 CH 81, petition to impose discipline on consent allowed, No. M.R. 18636 (March 19, 2003) (suspension for three years and until further order of the court with all but the first year stayed by probation that continued for as long as Mateas remained licensed to practice in the State of Illinois, for his conviction on one count of attempted possession of child pornography); In re Bloomquist, 94 CH 695, No. M.R. 10693 (eighteen-month suspension following conviction in Arizona for touching the breast of his seventeen-year-old neighbor); In re Mangan, 06 CH 37, No. M.R. 22303 (May 19, 2008) (two-year suspension until further order of the court for videotaping a female associate in his law firm on numerous occasions, including while she was using the restroom).
Respondent cites cases in which an attorney who was serving felony probation was allowed to continue practicing law. See In re Gable, 08 CH 67, petition to impose discipline on consent allowed, No. M.R. 23234 (Sept. 22, 2009); In re Reed, 97 CH 54, petition to impose discipline on consent allowed, No. M.R. 14844 (May 27, 1998). These cases do not compel the conclusion that Respondent should be allowed to practice without interruption. None of the attorneys in the cases cited by Respondent pled guilty to a sex offense involving a minor. Moreover, we must evaluate each case individually to reach a recommendation that best protects the public and the profession. Here, where Respondent pled guilty to internet sexual exploitation of a child, we conclude that the purposes of the disciplinary system are best served by requiring Respondent to successfully complete his criminal probation before he is permitted to practice law. This will demonstrate to all concerned that Respondent is committed to rehabilitating himself and to preventing any such misconduct in the future.
In In re Neppl, 09 RT 3002 (Hearing Board, Dec. 29, 2009), reinstatement allowed subject to conditions, No. M.R. 22990 (Sept. 20, 2011), the petitioner sought reinstatement while on supervised release following his incarceration for distribution of cocaine. In recommending that Neppl be reinstated but not until he fully completed his sentence, the Hearing Board stated that "we do not believe the integrity of the legal profession or the disciplinary process would be sufficiently protected from reproach if the Petitioner were to be reinstated before he fully satisfies his criminal sentence and is discharged by federal authorities." Neppl, 09 RT 3002, Hearing Board Report and Recommendation at 24. The same reasoning applies in this matter.
We further recommend that Respondent's suspension run until further order of the court. It is not appropriate to rely on the criminal probation system to ensure that Respondent can comply with his professional responsibilities. Rather, Respondent should be required to
demonstrate to the Court's satisfaction that he does not pose a risk of repeating his misconduct and has sufficient safeguards in place to assist him in his practice should he be reinstated. The severity of Respondent's addiction, as well as his own expert's testimony that his treatment will take "a long time" further support our recommendation.
In In re Clark, 97 CH 111 (July 28, 2000), petition for leave to file exceptions allowed, No. M.R.17713 (Nov. 29, 2001), the Court imposed a two-year suspension until further order of the court for misconduct related to Clark's paraphilia. The following analysis by the Hearing Board in Clark applies in this case:
While we heard testimony that Clark does not pose a current threat to others, we also were presented with evidence that paraphelia is a long-term illness with possibilities of recurrence. We recognize that Clark has sought treatment for his problems and has been specifically treated for his paraphelic urges . . . We applaud his efforts but also note that the experts agreed that Clark should continue with an extended period of treatment.
Based upon our assessment of the transgressions which occurred as well as the mitigating and aggravating circumstances, we conclude that a two year suspension is warranted in this case. We believe that the suspension should be until further order to ensure that Clark will continue his prescribed course of treatment for sexual paraphelia. Clark, 97 CH 111, Hearing Board at 27.
See also In re Sutherin, 08 CH 105 (Review Board, Nov. 21, 2005), petition for leave to file exceptions denied, No. M.R. 20636 (Sept. 20, 2006) (respondent suspended for one year and until further order of the court in part because "the expert testimony establishes that Respondent's personality disorder is long-lasting and pervasive and will require therapy for a very long time").
In this matter, Respondent's egregious misconduct, the pervasive nature of his mental disorders, and the length of time necessary to treat those disorders require a suspension until further order of the court. Respondent will have the opportunity, after November 10, 2013,
to demonstrate that he has completed all of the requirements of his criminal probation, is fully rehabilitated, and is fit to resume the practice law.
We recommend that the Hearing Board's finding that Respondent violated Supreme Court Rule 770 be reversed and that the remaining findings of misconduct be affirmed. We further recommend that Respondent, Kenneth Alan Goldman, be suspended from the practice of law until November 10, 2013, and until further order of the court.
Daniel P. Duffy
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 August 30, 2012.
Kenneth G. Jablonski, Clerk of the