Filed November 2, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
TIMOTHY JOHN STOCK,
Commission No. 2012PR00069
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on August 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, Roxanna M. Hipple, and Robert A. Wilson. Scott Renfroe appeared on behalf of the Administrator. Respondent, pro se, participated by telephone.
PLEADINGS & PRE-HEARING PROCEDURES
On July 2, 2012, the Administrator filed a one-count Complaint pursuant to Illinois Supreme Court Rule 761(d) alleging Respondent was convicted of unlawfully possessing marijuana for purposes of sale, a felony. Respondent agreed to accept service of the Complaint via regular mail and the Administrator mailed the Complaint and other documents to Respondent on July 13, 2012. (Administrator's Affidavit of Senior Investigator Michael R. Hall Pursuant to Commission Rule 241(b)).
On August 16, 2012, the Administrator filed a Motion to Deem the Allegations of the Complaint Admitted Pursuant to Commission Rule 236 ("Motion"). Attached to the motion was a letter, dated August 8, 2012, from Respondent to Counsel for the Administrator, which stated:
I have prepared an answer, but I am not going to file it. From a legal perspective, I believe that my chances of successfully defending against the bar's claims are very, very low. From a practical perspective, I have not practiced in Illinois for more than twenty-five years and don't intend to return to practice there; also, time and cost make a defense prohibitive.
At a pre-hearing conference on August 20, 2012, at which Respondent participated, the Chair granted the Administrator's Motion and ordered the hearing in this matter remain scheduled for August 28, 2012.
Administrator's Group Exhibit 1 was received in evidence. (Tr. 12). Respondent presented his own testimony in mitigation.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991).
A. Admitted Facts and Evidence Considered
In May 2010, Respondent agreed to lease an 18,000 sq. ft. warehouse located in Sacramento California to Peter and Thomas Holtzman. When he entered into the agreement, Respondent knew the Holtzmans intended to use the warehouse space to cultivate marijuana for distribution. Respondent also agreed to be paid a fee by the Holtzmans for acting as a front for their activities, in addition to the compensation received for rent and utility expenses related to
the operation of the warehouse. Respondent visited the warehouse at least eight times between May and December 2010, and met with telephone or municipal utility workers when installation or inspection work was required.
On December 9, 2010, agents from the Sacramento Regional Office of the Department of Justice, Bureau of Narcotic Enforcement received a telephone call from the Sacramento Municipal Utilities District regarding several electrical transformers in the vicinity of the warehouse that had overheated. That problem was traced to the warehouse. After unsuccessful attempts to contact Respondent, agents attempting to enter the warehouse property apprehended a man who was fleeing from them. In the resulting security sweep of the warehouse site, agents discovered 8,000 marijuana plants, 200 lights and ballasts, fans and a $15,000 marijuana trimming machine.
On December 15, 2010, the Sacramento County District Attorney filed a two-count felony indictment against Respondent in the Superior Court. Count I charged Respondent with unlawfully possessing marijuana for the purpose of sale, in violation of section 11359 of the Health and Safety Code of the State of California. Count II charged Respondent with the offense of unlawfully planting, cultivating, harvesting, drying and processing marijuana, in violation of section 11358 of the Code. The matter was docketed as People v. Stock, 10F08146. (Adm. Group Ex. 1).
On December 16, 2011, Respondent entered a plea of nolo contendere to Count I of the complaint. The Honorable Marjorie Koller dismissed Count II of the complaint in the interest of justice in view of Respondent's plea to Count I. Judge Koller then sentenced Respondent to serve five days in the Sacramento County Jail, gave him credit for the five days he had already served, and placed Respondent on probation for five years. Respondent's probation was subject
to various conditions, including payment of a $200 fine, registration as a drug offender and participation in a drug rehabilitation program. (Adm. Group Ex. 1).
Having considered the admitted facts and Administrator's Group Exhibit 1, we find clear and convincing evidence that Respondent engaged in the acts alleged and committed the misconduct as charged in the complaint. Specifically, Respondent:
committed a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(b) of the Illinois Rules of Professional Conduct of 2010 ("Rules");
engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Rules;
engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Rules; and
engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession it disrepute.
EVIDENCE OFFERED IN AGGRAVATION AND MITIGATION
Respondent underwent surgery for cancer in March 2010, after which time he became isolated and depressed. He engaged in misconduct shortly after this time. Respondent testified his behavior was wrong and unforgivable. He is sorry for what happened because it reflects poorly on the legal profession. (Tr. 15-16).
Respondent has no prior discipline in Illinois, but is the subject of disciplinary proceedings in the State of California for this misconduct. (Tr. 17).
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). "The Rules of
Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system." In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). In determining the appropriate sanction for an attorney's misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986).
Respondent suggests a lengthy suspension is appropriate. The Administrator recommends disbarment. In support of this recommendation, the Administrator relies on: In re Harper, 91 CH 569, M.R. 9645 (Jan. 25, 1994) (conviction of possession and delivery of drugs to a prisoner in a correctional facility warranted disbarment); In re Peek, 93 SH 369 & 457 (consolidated), M.R. 9461 (Mar. 26, 1996) (attorney disbarred for conspiring to possess and distribute cocaine and marijuana); In re Provenzano, 94 CH 605, M.R. 10513 (Nov. 20, 1994) (attorney disbarred on consent after multiple criminal convictions including possession with intent to deliver cannabis); In re Johnson, 2007 DC 1003, M.R. 21542 (May 18, 2007) (attorney disbarred on consent after convictions for conspiring to bring cannabis into a penal institution and possession and delivery of cocaine); In re Billmaier, 2009PR00125, M.R. 23587 (Mar. 16, 2010) (attorney disbarred on consent after conviction for possession of ecstasy and cannabis and bringing such contraband into a penal institution); In re Compton, 2010PR00052, M.R. 24306 (Jan. 19, 2011) (attorney disbarred on consent after conviction for bringing cannabis into a penal institution); In re Alexander, M.R. 9852, 94 CH 118 (Mar. 30, 1994) (attorney disbarred on consent for conviction related to distribution of controlled substances).
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.
Howard, 188 Ill. 2d 423; In re Chandler, 161 Ill. 2d 459, 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. Respondent disregarded his professional duties and responsibilities and agreed to act as a front for an operation involving the cultivation and distribution of marijuana. Given such serious misconduct, we conclude disbarment is warranted. Anything short of disbarment would undermine the purpose of the disciplinary system.
We note Respondent acknowledged his wrongdoing and expressed remorse. He also has no prior discipline. These factors are generally significant factors in mitigation. However, given the egregious nature of the misconduct, we give them little weight.
For the foregoing reasons, we recommend Respondent 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 Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on November 2, 2012.
Kenneth G. Jablonski, Clerk of the