Filed November 16, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
AARON RAY ISAACSON,
Commission No. 2011PR00062
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on June 13 and 14, 2012, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Panel of the Hearing Board consisting of John A. Guzzardo, Chair, Alison C. Conlon and John P. Clarke. Lea S. Black appeared on behalf of the Administrator. George B. Collins appeared on behalf of Respondent, who was present at the hearing.
The Administrator filed a one-count Complaint against Respondent on June 13, 2011, which was served on Respondent through his attorney on June 16, 2011. The Complaint charged Respondent with misconduct arising out of his sharing of a townhouse with a person Respondent knew was distributing marijuana from their residence and Respondent's use of marijuana with persons he knew were involved in drug transactions. At the time, Respondent was employed as an Assistant State's Attorney. Respondent was charged with additional misconduct based on false statements he made to police and his supervisors at the State's Attorney's office.
Respondent filed an Answer on August 24, 2011, within the time permitted by the Hearing Board. In his Answer, Respondent admitted some of the factual allegations of the Complaint, denied other factual allegations, and denied misconduct.
The Administrator presented testimony from Earl Candler, Eric Kalata, Jeff Pavletic and, by evidence deposition, Ryan Yoselowitz. Administrator's Exhibits 2, 3, 5, 6 and 8 through 13 were admitted into evidence.
Respondent testified on his own behalf and presented testimony from Samuel Isaacson.
In rebuttal, the Administrator proffered the testimony of Beth Yoselowitz. The Panel allowed Respondent's motion in limine as to this testimony and it was not considered.1
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In an attorney disciplinary proceeding, the Administrator has the burden of proving the misconduct charged, by clear and convincing evidence. In re Timpone, 208 Ill. 2d 371, 380, 804 N.E.2d 560 (2004). The clear and convincing evidence standard requires more than the usual civil standard of a preponderance of the evidence, but less than the criminal standard of proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); People v. Williams, 143 Ill. 2d 477, 484, 577 N.E.2d 762 (1990). It is our responsibility to determine whether the Administrator has met his burden of proof. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). In doing so, we resolve conflicting evidence and witness credibility. Winthrop, 219 Ill. 2d at 543. In considering the facts, we are not restricted to matters established by direct evidence. In re Krasner, 32 Ill. 2d 121, 128-29, 204 N.E.2d 10 (1965). Circumstantial evidence is legal evidence, and we may draw reasonable inferences from
the evidence. In re Discipio, 163 Ill. 2d 515, 524, 645 N.E.2d 906 (1994). Further, while the burden of proof remains on the Administrator, we need not be na?ve or impractical in assessing an attorney's conduct. In re Harris, 93 Ill. 2d 285, 295-96, 443 N.E.2d 557 (1982).
Respondent is charged with committing a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 8.4(a)(3) by engaging in a calculated criminal cannabis conspiracy in violation of 720 ILCS 550/9.
A. Evidence Considered
Respondent met Ryan Yoselowitz during college. While in college, they often used marijuana together. Respondent had heard rumors Yoselowitz also sold marijuana. (Tr. 148-50, 246-47; Adm. Ex. 13 at 6-8).
After graduating from college, Respondent had limited contact with Yoselowitz. They resumed their friendship during Respondent's second year of law school. (Tr. 151, 154-56; Adm. Ex. 13 at 9-10). At the time, Yoselowitz lived in his parents' home. Respondent visited the Yoselowitz residence frequently and used marijuana there with Yoselowitz. Yoselowitz openly sold marijuana from a specific room in his parents' home. Respondent was privy to information such as where Yoselowitz kept marijuana in the home and how marijuana delivered to Yoselowitz was packaged. In 2006 and 2007, Respondent witnessed Yoselowitz sell drugs numerous times. (Tr. 156-58, 250, 252-53; Adm. Ex. 13 at 42).
Respondent graduated from law school in May 2008. He took the bar exam that summer. (Tr. 253-54). In October 2008, Respondent learned he had passed the bar exam and applied for a position as an Assistant State's Attorney in Lake County, Illinois. Respondent was sworn in as a member of the Illinois Bar on November 6, 2008. (Tr. 276; Adm. Ex. 5). On January 5, 2009, Respondent began working as an Assistant State's Attorney. (Tr. 168, 224).
In the meantime, Respondent and Yoselowitz decided to share an apartment. Respondent testified he decided to room with Yoselowitz even though he knew Yoselowitz was a marijuana dealer, because Yoselowitz was careful about his drug dealing and discrete with outsiders. They chose an upscale row house at 2066 Stave Street in Chicago. Respondent's name was on the lease, as was Yoselowitz's. Respondent moved into the unit in late November 2008. Yoselowitz moved in about a month later. (Tr. 159-61, 278, 280-82, 300). Respondent testified, within a month thereafter, Yoselowitz began selling marijuana out of the unit. Yoselowitz testified marijuana sales began immediately after he moved in. (Tr. 292, 294, 304; Adm. Ex. 13 at 29).
Monthly rent for the unit was $2,800, of which Yoselowitz paid $2,000 and Respondent paid $800. Respondent had told Yoselowitz $800 was all he could afford for rent. Respondent could not have afforded a comparable unit on his salary. Respondent knew dealing marijuana was Yoselowitz's only source of income. (Tr. 160, 278-80, 282).
Respondent testified he was not a drug dealer, and no drug deals occurred from the Stave Street residence when Respondent lived there alone. Between January and May 2009, Respondent and Yoselowitz both occupied the residence. Throughout this period, Yoselowitz was selling marijuana out of the home. Respondent knew Yoselowitz was storing marijuana in the home and selling marijuana from the home. (Tr. 161-62, 292-95; Adm. Ex. 13 at 29).
On May 6, 2009, Yoselowitz was arrested. (Adm. Ex. 2). At the time, Yoselowitz was traveling to Peoria to meet with Ryan Pickering, his primary marijuana customer. (Tr. 173-74, 333; Adm. Ex. 8 at 58-60). Yoselowitz had over twenty pounds of marijuana with him. (Tr. 73).
Josh Goldin, whom Respondent knew was one of Yoselowitz's primary marijuana suppliers, sent Respondent a text message indicating Yoselowitz was in trouble. Respondent knew Yoselowitz had gone to Peoria in connection with a marijuana transaction and understood
Goldin's message to mean Yoselowitz was involved with police. (Tr. 61, 173-74, 311-12, 331). In another text message immediately following Yoselowitz's arrest, Goldin inquired if Respondent had "Skinny Ryan's" phone number, apparently referring to Pickering. (Tr. 61; Adm. Ex. 8 at 104). Pickering telephoned Respondent that night. (Tr. 317). While Goldin was friends with Yoselowitz and Respondent, Pickering was strictly a business contact of Yoselowitz's. (Adm. Ex. 8 at 26, 43-44).
Later that day, police searched Respondent's residence pursuant to a search warrant. (Adm. Ex. 2). Earl Candler, an Illinois State Police Operations Commander assigned to a drug enforcement unit, participated in the search. (Tr. 36-37).
In the small hallway coming in from the garage on the lower level of the unit, police observed a suitcase, which was empty but for dryer sheets. Candler, who had extensive experience in narcotics investigations, testified the suitcase emitted a very strong odor of raw marijuana. Respondent's shoes were adjacent to the suitcase. (Tr. 36-37, 39-42, 59-60; Adm. Ex. 8 at 42).
An extremely strong odor of marijuana permeated the home. (Tr. 58-59). Marijuana was found throughout the unit. (Tr. 41). Police recovered a total of over 9,000 grams of marijuana. (Adm. Ex. 2). Candler described the marijuana as a very high quality, the best he had ever seen. (Tr. 44, 46, 49, 73). Its street value was $5,000 to $6,000 per pound, five to six times the value of the marijuana normally sold on the streets. (Tr. 51).
Most of the marijuana was in Yoselowitz's bedroom and closet. (Tr. 42; Adm. Ex. 2). In Yoselowitz's room, police found duffle bags, gallon-size glass jars and cardboard boxes containing marijuana. (Tr. 44-45, 47-48; Adm. Ex. 3 at 8, 20, 23, 73). Police also found a gun,
ammunition, money wrappers and a money counter, as well as a small amount of cocaine, in Yoselowitz's room. (Tr. 52-53; Adm. Ex. 2, Adm. Ex. 3 at 61, 62).
No drugs were found in Respondent's room, although police found pipes for smoking marijuana in Respondent's bedroom. Police also found money wrappers in Respondent's room, as well as $600 cash in a dresser drawer. (Tr. 41, 55, 70, 322; Adm. Ex. 2). Respondent's room was on the same level of the unit as the kitchen, dining room and living room. (Tr. 39-40, 163).
Marijuana was found throughout cabinets in the kitchen. The marijuana found in that area totaled about a kilogram. (Tr. 41-42; Adm. Ex. 2). Glass jars containing marijuana were also found in the kitchen, as were boxes containing heat-sealed bags with marijuana inside. This marijuana was packaged similarly to marijuana found in Yoselowitz's room. (Tr. 46-48). In a garbage can between the kitchen and dining room, police found a heat-sealable bag, marked "G. Daddy Purps," which Candler testified referred to an elite variety of marijuana used by dealers for marketing purposes. (Tr. 49). In a drawer in the kitchen, police found notes relating to drug transactions. (Tr. 54). A small quantity of cocaine and vessels for using cocaine were also found in the kitchen cabinets. (Tr. 41, 48; Adm. Ex. 3 at 94).
Marijuana smoking pipes were found in the living room. Police recovered small jars of marijuana from a storage container at the end of the sofa. (Tr. 42, 50-51; Adm. Ex. 3 at 50).
Although he did not go into Yoselowitz's bedroom, Respondent knew most of the marijuana was there, primarily in a closet. Respondent also knew Yoselowitz stored marijuana elsewhere in the house. Respondent knew Yoselowitz kept marijuana in the kitchen, even though Respondent testified he and Yoselowitz stored their own items in separate cabinets and he asked Yoselowitz to remove the marijuana from the kitchen. Respondent stated he thought Yoselowitz had done so, but moved it back without Respondent's knowledge. Respondent also
knew Yoselowitz kept smoking devices and marijuana in the living room so people who came over could try different types. (Tr. 163-64, 170-71, 293-94; Adm. Ex. 8 at 47-48, 53, 94).
Respondent and Yoselowitz each testified they were not partners in the drug business and did not split profits from drug sales. Respondent denied Yoselowitz ever gave him part of the proceeds of a transaction as Respondent's share from a sale. (Tr. 166-67; Adm. Ex. 13 at 57). Respondent also denied ever delivering anything he knew to be narcotics to anyone. (Tr. 168).
Yoselowitz testified Respondent sometimes delivered marijuana for him, before and after they began sharing the unit on Stave Street. (Adm. Ex. 13 at 13-17). Yoselowitz also stated once Respondent was paid $700 to deliver marijuana for Goldin. (Adm. Ex. 13 at 31-32). According to Yoselowitz, Respondent attempted to deliver the package several times without success and kept the $700 even though ultimately Yoselowitz delivered the package. (Adm. Ex. 13 at 31-32).
Respondent knew Yoselowitz sold marijuana to the leasing agent who helped them find a place to rent. (Tr. 255). Yoselowitz described the leasing agent as Respondent's customer and a person with whom Respondent had previously used marijuana. According to Yoselowitz, Respondent delivered the marijuana sold to the leasing agent and kept a portion of the proceeds. (Adm. Ex. 13 at 21-22).
Respondent knew a great deal about Yoselowitz's drug operation. (Tr. 304). Respondent told police he might have known more about Yoselowitz's drug operation than anyone other than Yoselowitz's main supplier and main customer. (Tr. 306). Respondent testified Yoselowitz spoke freely about his marijuana dealings and did not limit such conversations to only persons involved in drug transactions with him. (Tr. 297-98). Respondent knew Yoselowitz kept records of amounts people owed him; one such ledger was found in the kitchen. (Adm. Ex. 8 at
40, 61). Respondent also knew, within a range, the amount Yoselowitz typically owed his primary marijuana supplier and what Yoselowitz's primary customer typically owed Yoselowitz. (Tr. 332-33; Adm. Ex. 8 at 42-43, 58, 60).
Respondent knew many persons purchased marijuana from Yoselowitz at the Stave Street home. While he would stay away if Yoselowitz was dealing with someone he did not know, Respondent was present for numerous marijuana transactions at the home, likely five to seven transactions per week. (Tr. 168, 294; Adm. Ex. 8 at 52). On some nights, there were multiple marijuana transactions at the home. (Adm. Ex. 8 at 39). Yoselowitz testified Respondent was present for most of the drug transactions which occurred at the home. (Adm. Ex. 13 at 29-30).
Yoselowitz would tell Respondent if persons were coming over who owed Yoselowitz money or were dropping something off. Respondent denied ever accepting cash or a marijuana delivery for Yoselowitz. (Adm. Ex. 8 at 40, 98-99). He was, however, present many times when marijuana was delivered to the residence. (Tr. 303).
Respondent knew Goldin delivered marijuana to the premises, at least once a week, in hockey-sized duffle bags, filled with marijuana packed in vacuum-sealed bags. Respondent knew Yoselowitz was Goldin's biggest customer. (Tr. 303; Adm. Ex. 8 at 41-43).
Respondent knew other persons also supplied marijuana to Yoselowitz, including an individual who generally packed the marijuana in glass jars. Although he never met this person, Respondent had seen him twice at the home on Stave Street. (Tr. 332).
Yoselowitz sorted marijuana in the main room. (Adm. Ex. 8 at 46). Respondent testified Yoselowitz would invite him to examine marijuana after it was delivered, but Respondent was not interested. (Tr. 303-304; Adm. Ex. 8 at 40-41). Yoselowitz testified Respondent assisted him in sorting marijuana after delivery, based on quality. (Adm. Ex. 13 at 30).
Respondent admittedly used marijuana and cocaine with Yoselowitz at their residence. (Tr. 167-68, 293). Yoselowitz testified he and Respondent used drugs with persons to whom Yoselowitz had sold marijuana. According to Yoselowitz, this occurred more than once, with multiple persons, and sometimes, but not always, in the context of a marijuana sale at which Respondent had been present. (Adm. Ex. 13 at 34, 36-37). When Respondent and Yoselowitz used drugs together, Respondent did not pay for the drugs he used. (Adm. Ex. 13 at 33-34). According to Yoselowitz, while he typically supplied the drugs they used together, sometimes Respondent did so. (Adm. Ex. 13 at 12).
Respondent knew Pickering was Yoselowitz's major buyer. Respondent told police Pickering and Yoselowitz met at least once a week regarding marijuana transactions. (Tr. 173-74, 333; Adm. Ex. 8 at 58-60). Once, Respondent accompanied Yoselowitz to pick up money Pickering owed Yoselowitz for a drug transaction; Respondent stated he accompanied Yoselowitz for other reasons. (Tr. 296-97).
Respondent knew Yoselowitz's system for handling cash proceeds of drug transactions. Yoselowitz wanted the money arranged in a certain way and wrapped in money wrappers. He also removed any unusual bills, which he collected. (Tr. 165; Adm. Ex. 8 at 100; Adm. Ex. 13 at 58-59).
On July 30, 2009, Respondent gave a statement to police. This statement was made pursuant to a grant of immunity to Respondent, in exchange for his agreement to provide information to law enforcement officials. (Adm. Exs. 8, 9). Respondent was never charged with a crime relating to this matter. (Tr. 336). Respondent understood his immunity was contingent upon him providing complete and truthful information to law enforcement officials. (Adm. Ex. 8 at 7-9). During that statement, Respondent stated Yoselowitz asked him to count money once or
twice. (Adm. Ex. 8 at 99). Respondent also told police Yoselowitz counted money in Respondent's presence and would not permit the person with whom Yoselowitz was dealing to leave until the money had been counted. (Adm. Ex. 8 at 60-61).
At the hearing, Respondent testified he helped Yoselowitz arrange money from a drug deal two or three times, to expedite the process because he and Yoselowitz were late for a social engagement. Respondent denied counting money from any drug deals or dealing with money in the presence of a marijuana buyer following the purchase. (Tr. 165-66, 295).
Yoselowitz testified Respondent helped him count and band money, more than a few times. (Adm. Ex. 13 at 30). Respondent knew the money was drug proceeds, as he had been present for the transaction. (Adm. Ex. 13 at 33, 67). Yoselowitz had Respondent go through large amounts of cash partly to look for unusual bills, but also to insure Yoselowitz counted correctly and none of the bills was counterfeit. (Adm. Ex. 13 at 65-66). According to Yoselowitz, sometimes Respondent dealt with the money in the presence of the other person involved in the transaction, after the transaction was completed. Respondent did not help Yoselowitz keep his ledger or make calculations. (Adm. Ex. 13 at 59-61, 68).
Police recovered a gun and ammunition from the Stave Street residence. (Adm. Ex. 2). Respondent stated the gun belonged to Pickering, who left it with Yoselowitz for safekeeping following a robbery at Pickering's home. According to Respondent, he told Yoselowitz to get rid of the gun and Yoselowitz agreed but, a few days before Yoselowitz was arrested, Respondent learned the gun was still in the home. (Adm. Ex. 8 at 91-93).
Respondent is charged with having 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(a)(3) of
the Illinois Rules of Professional Conduct. This requires the Administrator to prove the attorney committed the criminal act charged in the complaint. In re Brodsky, 01 CH 42, M.R. 19007 (Jan. 20, 2004).
Respondent was not charged with or convicted of any criminal offense, as he was granted immunity from prosecution. See 725 ILCS 5/106-1 (2008). The grant of immunity does not exempt Respondent from these disciplinary charges or from being sanctioned for his misconduct. In re Schwarz, 51 Ill. 2d 334, 337-38, 282 N.E.2d 689 (1972); In re Tuttle, 371 Ill. 153, 158, 20 N.E.2d 98 (1939). A prior formal determination a crime has been committed is not a prerequisite to finding misconduct under Rule 8.4(a)(3). In re Bates, 05 CH 48, M.R. 22711 (Nov. 18, 2008). Misconduct may be found and the attorney disciplined even if the attorney was acquitted of criminal charges arising out of the same conduct. In re Ettinger, 128 Ill. 2d 351, 368, 538 N.E.2d 1152 (1989); In re Browning, 23 Ill. 2d 483, 490-91, 179 N.E.2d 14 (1961). The same is true if prosecuting authorities dismissed charges previously filed. In re Peek, 93 SH 457, 94 SH 369 (cons.), M.R. 9461 (Mar. 26, 1996). This is because it is the behavior, not the conviction, which subjects the attorney to discipline. In re Rolley, 121 Ill. 2d 222, 233, 520 N.E.2d 302 (1988). Further, criminal and disciplinary proceedings serve different purposes and different burdens of proof apply. Ettinger, 128 Ill. 2d at 369-70.
Respondent was not prosecuted because he received immunity. Immunity represents a means of accommodating the privilege against self-incrimination and the government's need for information. People v. Ousley, 235 Ill. 2d 299, 306, 919 N.E.2d 875 (2009). The immunity here represented a decision by the McLean County State's Attorney's office that information Respondent could provide toward the prosecution of Yoselowitz and others in their investigation was sufficiently valuable to warrant an agreement not to prosecute Respondent for criminal
conduct of his own. See 725 ILCS 5/106-1. The grant of immunity does not imply any determination Respondent lacked criminal culpability. See e.g., Arkebauer v. Kiley, 985 F.2d 1351 (7th Cir. 1993).
As relevant here, a person engages in a calculated criminal cannabis conspiracy when he or she knowingly possesses more than 30 but less than 2,000 grams of cannabis, does so as part of a conspiracy undertaken or carried on with two or more other persons and obtains anything of value more than $500 from such violation or conspiracy. 720 ILCS 550/9 (2008); see 720 ILCS 550/4 (2008). Possession may be constructive possession, proven by showing contraband is found in premises the accused controls. People v. Denton, 264 Ill. App. 3d 793, 798, 637 N.E.2d 1066 (1st Dist. 1994). Circumstantial evidence may be used to identify a substance as cannabis. People v. Jones, 75 Ill. App. 3d 214, 221, 393 N.E.2d 1132 (5th Dist. 1979).
Police recovered over one kilogram of marijuana from common areas of Respondent's residence, specifically the kitchen and living room. Respondent, who was clearly familiar with marijuana having used it over time, admitted the substance found in his home was marijuana. Other evidence corroborated that admission, including the testimony of Yoselowitz, an experienced marijuana dealer, and Candler, an experienced narcotics officer. Candler also testified concerning the quantity of marijuana found. The evidence included photographs of containers of marijuana as well as the log of items recovered in the search. That evidence also provides a basis for finding the quantity of marijuana recovered was within the statutory range. Other items found in the residence were consistent with a drug dealing operation on the premises. Those items include a gun, money counter, money wrappers, notations of drug transactions, packaging materials, a bag marked with the name of a variety of marijuana and
pipes of a type used to smoke marijuana. Thus, the evidence as a whole showed the substance found in Respondent's residence was marijuana and the quantity was within the statutory range.
Respondent's admitted knowledge of and acquiescence in the presence of marijuana in his home are not sufficient, in and of themselves, to prove he participated in a conspiracy. People v. LeShoure, 139 Ill. App. 3d 356, 363, 487 N.E.2d 681 (4th Dist. 1985). There must also be an agreement and action, either in concert or jointly. See Jones, 75 Ill. App. 3d at 224. An agreement or common design need not be proven directly; proof the alleged co-conspirators pursued a course tending toward accomplishing the object of the conspiracy can suffice. Id. In this case, because the underlying criminal charge is calculated criminal cannabis conspiracy, there must also be proof that Respondent's possession of marijuana be part of a conspiracy undertaken or carried on with two or more other persons and Respondent obtained a thing of value worth over $500 from the conspiracy. 720 ILCS 550/9.
We may infer intent and agreement from evidence of acts, conduct and circumstances. Jones, 75 Ill. App. 3d at 224. In fulfilling our adjudicative role, we should neither disregard what we know as human beings, (In re Cutrone, 112 Ill. 2d 261, 269, 492 N.E.2d 1297 (1986)), nor be na?ve in analyzing the evidence. Harris, 93 Ill. 2d at 295. We are convinced Respondent was not a mere bystander, as he seeks to portray himself, but was involved in a conspiracy with at least two other persons and possessed marijuana as part of that conspiracy.
Respondent agreed to share an apartment with Yoselowitz, whom he knew had a long history of marijuana dealing. Respondent admittedly knew Yoselowitz had begun selling marijuana from the home within a month after he moved in. Even though he knew of Yoselowitz's activity, Respondent continued to live in the residence until Yoselowitz was arrested, in May 2009.
Respondent knew a great deal about Yoselowitz's operation, including many details. Respondent seeks to minimize the significance of that knowledge by asserting Yoselowitz openly discussed his marijuana dealings with others. However, Respondent also testified he decided to move in with Yoselowitz because Yoselowitz was careful in his dealings with others. The latter explanation is far more plausible.
Yoselowitz testified Respondent was involved in his operation, more heavily after they began rooming together. Yoselowitz testified Respondent delivered marijuana, sorted marijuana and counted proceeds from marijuana transactions. While Respondent denied such activity, Yoselowitz's behavior strongly suggests Respondent must have been involved, to some degree, in Yoselowitz's operation. It is highly unlikely that a marijuana dealer, particularly a careful one, would share information, or a residence, with a member of the law enforcement community, unless the dealer was confident he would be able to continue dealing marijuana without interference.
Even if Respondent merely "arranged" drug proceeds, as he admitted he did, that conduct facilitated Yoselowitz's processing of funds received from marijuana sales and constituted an act in furtherance of the conspiracy.
The marijuana found in the common areas of the residence was obviously part of Yoselowitz's operation. Marijuana recovered from the kitchen was packaged similarly to marijuana found in Yoselowitz's bedroom. Smoking pipes and different varieties of marijuana were kept in the living room so Yoselowitz's suppliers and/or customers could sample different types of marijuana.
Third persons also behaved as if Respondent was involved in Yoselowitz's operation. Respondent was present for numerous marijuana transactions. Respondent used marijuana with
Yoselowitz and others engaged in marijuana transactions with him, often following a transaction at which Respondent was present. Respondent was present when third parties delivered marijuana to the residence. Goldin promptly contacted Respondent after Yoselowitz was arrested. Goldin also thought Respondent might have Pickering's number, even though Pickering was a strictly business contact of Yoselowitz's.
All of these circumstances cause us to infer Respondent was involved, to some extent, in Yoselowitz's operations and in a conspiracy with Yoselowitz.
The evidence also demonstrated that the conspiracy involved at least two other persons. 720 ILCS 550/9. In addition to Yoselowitz, at least three other persons were involved. Goldin regularly delivered hockey-sized duffle bags of packaged marijuana. Another person shipped marijuana to Yoselowitz in glass jars. Police found marijuana packed in glass jars in the residence. Pickering met with Yoselowitz at least weekly to pick up or pay for marijuana.
Respondent also received a thing of value of over $500 from the conspiracy, specifically, his disproportionately small share of the rent. Respondent paid $800, which is $600 less than half the monthly rent. Yoselowitz paid the balance, of $2,000. Yoselowitz was able to pay a significantly higher share of the rent because of the money he obtained from dealing marijuana.
The Administrator proved Respondent engaged in a calculated criminal cannabis conspiracy. Unlawful possession of marijuana, which is an element of a calculated criminal cannabis conspiracy, reflects adversely on a person's honesty, trustworthiness or fitness as a lawyer. In re Bowden, 07 CH 72, M.R. 23676 (May 17, 2010); see 720 ILCS 550/9. Participation in a calculated criminal cannabis conspiracy similarly violates Rule 8.4(a)(3).
Respondent is charged with committing a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 8.4(a)(3) by possessing cannabis in violation of 720 ILCS 550/4.
A. Evidence Considered
We consider the evidence outlined above in Section I.
It is unlawful to knowingly possess marijuana. 720 ILCS 550/4 (2008). A possessory offense may be established by proof contraband was found in premises controlled by the accused. Denton, 264 Ill. App. 3d at 798.
As discussed above, we have found the evidence sufficient to demonstrate the substance found in the residence was marijuana and to show the approximate quantity of marijuana. See Jones, 75 Ill. App. 3d at 221-22. A significant quantity of marijuana, over one kilogram, was found in the common areas. The charges here do not require us to determine the precise amount of marijuana involved or whether Respondent constructively possessed the marijuana in Yoselowitz's bedroom, in addition to the marijuana in the common areas. See People v. Kissinger, 26 Ill. App. 3d 260, 263-64, 325 N.E.2d 28 (3d Dist. 1975).
The Stave Street home was Respondent's residence, and he admitted he knew marijuana was present in the home. The fact Yoselowitz also had access to the unit does not preclude us from finding possession by Respondent, as possession may be joint. Denton, 264 Ill. App. 3d at 798-99. The evidence demonstrated Respondent unlawfully possessed marijuana. See LeShoure, 139 Ill. App. 3d at 363. Possession of marijuana is a criminal act which reflects adversely on a person's honesty, trustworthiness or fitness as a lawyer and violates Rule 8.4(a)(3). Bowden, 07 CH 72.
Respondent is charged with committing a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 8.4(a)(3) by possessing drug paraphernalia in violation of 720 ILCS 600/3.5.
A. Evidence Considered
We consider the evidence outlined above in Section I.
Respondent admitted he had used the pipes in the living room to smoke marijuana. (Tr. 293-94). Respondent described the pipes in his bedroom as souvenirs from college. (Tr. 130-31). Respondent told law enforcement officials he last used those pipes in college or shortly thereafter. At the hearing, Respondent described more recent use, although he did not use those pipes when he was with Yoselowitz as paraphernalia was readily available. Respondent brought those marijuana pipes with him on some of the several times he had moved since college. (Tr. 321-22; Adm. Ex. 8 at 112).
It is unlawful to knowingly possess an item of drug paraphernalia with the intent to use it in introducing cannabis or a controlled substance into the human body. Drug paraphernalia includes materials, such as pipes, which are intended to be used unlawfully in inhaling cannabis or a controlled substance into the human body. 720 ILCS 600/2(d); 720 ILCS 600/3.5 (2008).
Proof of unlawful possession of drug paraphernalia requires proof the accused knew of the presence of the drug paraphernalia and the paraphernalia was within his or her immediate and exclusive possession or control. People v. Schmalz, 194 Ill. 2d 75, 81, 740 N.E.2d 775 (2000). While proximity to or knowledge of the contraband is not sufficient to show possession, actual physical possession is not required. Schmalz, 194 Ill. 2d at 81-82. Proof can be based on constructive possession, where the accused controls the premises in which contraband is found. Denton, 264 Ill. App. 3d at 798. Where two or more persons share immediate and exclusive
control or the intention and power to exercise control of the premises, each person can be found to have possession. Schmalz, 194 Ill. 2d at 82.
The Administrator established Respondent possessed drug paraphernalia. Respondent lived in the premises in which the paraphernalia was found, and his name was on the lease. Respondent knew the paraphernalia was present. Multiple items of drug paraphernalia were recovered from the common areas of Respondent's home. These items were designed to be used to smoke marijuana and cocaine. Respondent knew the purpose for which the pipes were used and admitted having used pipes found in common areas to smoke marijuana.
Additional pipes used for smoking marijuana were found in Respondent's room. Respondent denied any present intent to use those pipes to smoke marijuana. However, Respondent has an extensive history of using marijuana. The pipes found in his room were designed to be used to smoke marijuana. Respondent brought those pipes with him as he moved his residence several times since college. Given these circumstances, we infer the requisite intent as to all the pipes found.
Unlawful possession of drug paraphernalia is criminal conduct that reflects adversely on a person's honesty, trustworthiness and fitness as an attorney, so as to violate Rule 8.4(a)(3). In re Segovia, 06 CH 86, M.R. 23256 (Sept. 22, 2009).
Respondent is charged with committing a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 8.4(a)(3) by obstructing justice in violation of 720 ILCS 5/31-4.
A. Evidence Considered
This section briefly summarizes specific evidence relevant to this charge, to supplement the more detailed discussion of the evidence in Section I.
After the search of Respondent's residence, four or five police officers met with Respondent at a local police station. In response to police questioning, Respondent stated he had
no idea there were any drugs on the premises or that Yoselowitz was selling drugs. (Tr. 38-39, 57, 59, 177-78).
Respondent admitted the statements he made to police on the night of the search were lies. (Tr. 318). Respondent testified he gave false statements to police that night because he was afraid and shocked. The situation was intimidating and Respondent was extremely nervous. Respondent was at the station about two hours. While conflicting evidence was presented as to how Respondent got to the station, Respondent was not arrested, and he was told he was free to leave. At the time, Respondent knew Yoselowitz had been arrested and their residence had been searched. (Tr. 38-39, 55-57, 65-66, 68-69, 176-80, 243).
Officer Candler testified Respondent was very careful in answering questions and declined when police asked to download his cell phone. (Tr. 62, 68).
A person obstructs justice when he or she knowingly furnishes false information with the intent to prevent the apprehension or obstruct the prosecution or defense of any person. 720 ILCS 5/31-4 (2008). While a person may legitimately remain silent and decline to provide information to law enforcement officials, a person may not lie and give false information. People v. Ellis, 199 Ill. 2d 28, 42-44, 765 N.E.2d 991 (2002). The requisite intent can be found if a person gives false information to police involved in an investigation, even if the person later provides accurate information. People v. Davis, 409 Ill. App. 3d 457, 462, 951 N.E.2d 230 (4th Dist. 2011). A person who provides false information about him or her self, in an effort to obstruct his or her own apprehension or prosecution may be found guilty of obstruction of justice. Ellis, 199 Ill. 2d at 39-40.
The Complaint charged Respondent violated Rule 8.4(a)(3) by falsely stating he had no knowledge of Yoselowitz distributing marijuana. Obviously, this statement was false and Respondent knew it was false. When he made the statement, Respondent knew the officers were investigating drug offenses at his residence. Respondent knew Yoselowitz had been arrested and their residence had been searched. Respondent clearly would have known law enforcement personnel might have suspected Respondent was involved and investigate his conduct. His statements were clearly made in an effort to avoid his own arrest and prosecution.
We have no doubt Respondent was nervous when police questioned him. Respondent's conduct placed him at risk of criminal prosecution, loss of his job and loss of his law license. However, the issue is whether Respondent's false statements were made voluntarily, i.e., freely and without compulsion. Cf. People v. Melock, 149 Ill. 2d 423, 447, 599 N.E.2d 941 (1992) (voluntariness of a confession). Despite his nervousness, Respondent's statements were made voluntarily. The voluntariness of a statement depends on the totality of the circumstances, including the age, education and intelligence of the person questioned and the circumstances surrounding the questioning. Melock, 149 Ill. 2d at 447. At the time police questioned him, Respondent, an intelligent adult, had been trained as a lawyer and was working as a prosecutor. He knew or should have known he had the right to remain silent, request an attorney and decline to speak with police or accompany them to the station. Instead, he chose to lie. Respondent's refusal to allow officers to examine his cell phone demonstrates Respondent's ability to think clearly and make independent decisions was not overborne.
Respondent obstructed justice. Respondent knowingly made false statements to police investigating crimes in which he was potentially implicated, in an effort to avoid being charged himself. Obstruction of justice is a criminal act which reflects adversely on a person's honesty,
trustworthiness or fitness as a lawyer in other respects, so as to violate Rule 8.4(a)(3). See In re Laz, 05 CH 114, M.R. 22484 (Sept. 17, 2008). The fact that, at the time of his misconduct, Respondent was an Assistant State's Attorney provides additional grounds for finding his criminal conduct reflected adversely on Respondent's honesty and fitness as a lawyer.
Respondent is charged with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4).
A. Evidence Considered
Specific evidence relevant to this charge is summarized here, to supplement the evidence discussed in Sections I and IV above.
On the evening of May 6, 2009, Respondent called his immediate supervisor, Eric Kalata, at home. (Tr. 84, 88). Office policy required employees to notify their supervisor if they were involved in any incidents with police. Respondent told Kalata his roommate had been arrested and police were searching his residence and drugs might be involved. (Tr. 89-90). Before this situation arose, Kalata considered Respondent a good employee. (Tr. 98-100).
Respondent met with Kalata the next morning. Respondent told Kalata he had nothing to do with drug dealing and did not know anything about why police were present or a warrant was executed at his home. In a meeting with supervisory personnel later that morning, Respondent stated he did not know his roommate was involved in selling drugs or that drugs were kept in his home. (Tr. 90-93).
Rule 8.4(a)(4) prohibits attorneys from engaging in conduct involving fraud, dishonesty, deceit or misrepresentation. In determining whether conduct involves fraud, dishonesty, deceit or misrepresentation, the Hearing Board considers the totality of the facts and circumstances of the individual case. In re Broyles, 2010PR00035, M.R. 25239 (May 18, 2012). When an
attorney knowingly provides false information to another, the attorney can be found to have engaged in conduct involving fraud, dishonesty, deceit or misrepresentation. Winthrop, 219 Ill. 2d at 558.
The evidence leaves no question Respondent engaged in conduct involving dishonesty. He knowingly lied to police officers and to his supervisors at the State's Attorney's office. Respondent clearly violated Rule 8.4(a)(4).
Respondent is charged with engaging in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5).
A. Evidence Considered
We consider the evidence outlined above in Sections I-V.
Respondent's false statements to police, which amounted to an obstruction of justice, constitute conduct prejudicial to the administration of justice. See Laz, 05 CH 114.
At the time of his misconduct, Respondent was an Assistant State's Attorney, a person directly charged with prosecuting criminal offenses. Despite this fact, Respondent involved himself in criminal activity. Respondent disregarded prolonged, systematic and serious criminal activity by others, of which Respondent was aware and which occurred in his residence. Respondent failed to report or attempt to stop that criminal activity. Such conduct prejudices the administration of justice. In re Sims, 144 Ill. 2d 323, 324-25, 579 N.E.2d 865 (1991).
Respondent is charged 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.
A. Evidence Considered
We consider the evidence outlined above in Sections I-V.
The Illinois Supreme Court has 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, par. 92. Accordingly, based on the allegations before us, we do not find a violation of Rule 770 as to any Count of the Second Amended Complaint.
By following the Court's decision in Thomas, we do not mean to imply Respondent's conduct did not bring the legal profession into disrepute. As discussed more fully below, Respondent's conduct does bring the profession into disrepute.
Our decision not to find a separate violation of Supreme Court Rule does not affect our recommendation as to discipline. In re Gerard, 132 Ill. 2d 507, 532, 548 N.E.2d 1051 (1989). Particularly in recommending a sanction, we focus on Respondent's conduct, not the number of rule violations found. Gerard, 132 Ill. 2d at 532.
EVIDENCE OFFERED IN MITIGATION AND AGGRAVATION
Respondent obtained his undergraduate degree from Bradley University and his law degree from John Marshall Law School. During law school, Respondent worked as a law clerk for the Cook County and Lake County State's Attorney's offices. (Tr. 146-47, 154, 256-57).
On May 15, 2009, Respondent's employment as an Assistant State's Attorney ended. (Tr. 184, 186-87). Respondent obtained other work thereafter. As a result of the disciplinary proceedings and the accompanying publicity, Respondent had been asked to leave one of his part-time legal jobs. (Tr. 230-36).
Respondent's uncle, attorney Samuel Isaacson, testified. Respondent and Isaacson enjoy a close, family relationship. (Tr. 190, 198). Isaacson considered Respondent an honest person, honorable and of good character. Isaacson had a general understanding of the charges and had received a copy of the Complaint, but did not know Respondent was charged with having lied to others. However, those charges, if proven, would not change Isaacson's opinion. (Tr. 196, 199-202).
Isaacson had volunteered for many years with the Jewish United Fund. Respondent began doing volunteer work for this organization in late 2011. Although he could not recall doing other charitable work in the interim, Respondent had done some volunteer work while he was in college. (Tr. 191-93, 237-38, 334).
Respondent no longer uses cocaine or marijuana. (Tr. 185-86). Respondent testified he felt very ashamed, particularly in front of his uncle. (Tr. 230).
At the time of the hearing, Respondent was engaged. His fianc?e knew about the disciplinary case. (Tr. 240).
Respondent has no prior discipline. (Tr. 426).
Shortly after he was terminated from the State's Attorney's office, Respondent hired counsel. Respondent's attorney negotiated an agreement whereby, in return for his cooperation with law enforcement officials, Respondent received immunity. (Tr. 240-42).
Respondent was assigned to the Traffic Division of the State's Attorney's office. That division prosecuted charges for possession of marijuana and/or drug paraphernalia which arose out of a traffic stop or a charge for driving under the influence (DUI). (Tr. 84-85). On average,
the Lake County State's Attorney's office handled ten to fifteen DUI cases each day, of which about 20% included drug-related charges. (Tr. 86-88). Respondent prosecuted some cases involving possession of drugs while he was living with Yoselowitz. (Tr. 306).
After he learned Yoselowitz was in trouble, Respondent telephoned jails along the route between Chicago and Peoria, inquiring if Yoselowitz was in custody. When he made those calls, Respondent identified himself as an Assistant State's Attorney. (Tr. 134-35, 312, 315; Adm. Ex. 8 at 89).
When he initially spoke with police, Respondent falsely stated, although he used drugs in college, he had not done so for several years. (Tr. 59, 318). During a meeting with Kalata and First Assistant State's Attorney Jeffrey Pavletic on May 15, 2009, Respondent gave false information in response to multiple specific questions. Respondent testified he lied because he was afraid. (Tr. 96-97, 109, 118, 121-30, 243-44).
In determining the discipline to recommend, we consider the proven misconduct as well as any aggravating and mitigating circumstances. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). We also keep in mind the purpose of attorney discipline, which is not to punish the attorney, but to protect the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). While some consistency is sought in sanctions for similar misconduct, each case is unique and must be evaluated based on its own particular facts and circumstances. Timpone, 157 Ill. 2d at 197.
The need to protect the integrity of the profession is a particularly important consideration when dealing with an attorney who has engaged in serious criminal conduct. See
In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1 (1985). Attorneys are properly held to a high standard of respect for and obedience to the law. In re Lunardi, 127 Ill. 2d 413, 422, 537 N.E.2d 767 (1989). The fact that an attorney engages in criminal conduct while employed as a prosecutor is an aggravating factor. See In re Armentrout, 99 Ill. 2d 242, 255, 457 N.E.2d 1262 (1983). Given the illegal nature of drugs and the damage they cause society, drug-related misconduct by attorneys typically warrants harsh discipline, absent significant mitigating factors. In re Larson, 03 CH 467, M.R. 11507 (Sept. 29, 1995); In re Harper, 91 CH 569, M.R. 9645 (Jan. 25, 1994).
The Administrator seeks disbarment, relying on three cases in which attorneys were disbarred for misconduct which included drug-related criminal acts.
In In re Peek, 93 SH 457, 94 SH 369 (cons.), M.R. 9461 (Mar. 26, 1996), the attorney, while employed as an Assistant State's Attorney, had a series of discussions with another person, which culminated in an agreement to engage in large scale drug transactions. Peek had dealt in drugs before. Criminal charges against Peek, for conspiracy and attempt to possess with intent to distribute cocaine and marijuana, were dismissed. Peek was disbarred, and his petition for restoration to active status was denied.
In the other cases on which the Administrator relies, the attorneys were disbarred on consent. In In re Stewart, 98 SH 97, M.R. 15437 (Feb. 1, 1999), on three separate occasions over a three-week period, an Assistant State's Attorney obtained cocaine and delivered it to another person. The attorney In re Baba, 07 SH 74, M.R. 22324 (May 19, 2008) was also an Assistant State's Attorney. Baba obtained, and kept, marijuana being held as evidence by making false representations.
Respondent seeks a suspension, relying on cases in which less severe sanctions were imposed. The cases on which Respondent relies, however, involve less serious misconduct or significant mitigating factors not present here.
In Scarnavack, the attorney possessed a small amount of cocaine on one occasion. At the time, Scarnavack was in private legal practice; formerly he had been an Assistant State's Attorney. The Court censured Scarnavack based on the mitigating factors present. Scarnavack's judgment was clouded by contemporaneous serious personal difficulties. In addition, he had never before possessed a controlled substance. Scarnavack, 108 Ill. 2d at 460-61. Similar circumstances are not present here.
In the other cases on which Respondent relies, there was evidence of chemical dependency and the attorneys were engaged in successful efforts at rehabilitation. Such circumstances can warrant less severe sanctions. E.g., In re Kelley, 07 SH 5, M.R. 22452 (Sept. 16, 2008); In re Leyshon, 06 SH 5, M.R. 21133 (Nov. 17, 2006). In this case, there was no evidence Respondent's misconduct stemmed from chemical dependency.
In Kelley, the attorney was suspended for two years and until further order of the Court, with the suspension stayed after one year by probation, subject to conditions. While serving as an Assistant State's Attorney, Kelley purchased and used marijuana and cocaine multiple times over a four-year period. In some instances, Kelley used controlled substances with another Assistant State's Attorney. Kelley purchased cocaine a number of times in the presence of others, from a person who was later convicted of drug trafficking. As he was granted immunity, Kelley was not prosecuted for any crime. Kelley, who had been diagnosed with alcohol and cocaine dependence, was receiving treatment. His condition was in sustained full remission.
In Leyshon, the attorney was suspended for one year, fully stayed by two years probation, subject to conditions. Leyshon, an attorney in private practice, had purchased and used small amounts of cocaine on at least twelve occasions, over a five-month period. He had been diagnosed with alcohol and cocaine dependence and was receiving treatment for those conditions, as well as depression.
The attorney in In re Sims, 144 Ill. 2d 323, 579 N.E.2d 865 (1991) was suspended for two years. Sims purchased and used marijuana and small quantities of cocaine over several years, while serving as State's Attorney of Perry County. Sims did not prosecute the persons who sold him controlled substances or the persons who used controlled substances with him. In exchange for his resignation as State's Attorney, Sims was not prosecuted criminally. Despite Sims's successful rehabilitation, his misconduct required a substantial suspension, as it involved a prosecuting attorney flaunting the law over time. Sims, 144 Ill. 2d at 325. The Court concluded any lesser sanction would deprecate the seriousness of the offense and "erode public trust in the accountability of its elected officials." Id.
Respondent's misconduct is, obviously, quite serious. Respondent's behavior was not a momentary lapse of judgment or an isolated incident of possession of a small amount of marijuana. Rather, Respondent affirmatively chose to share a residence with a person whom he knew had dealt in marijuana over time and knew or should have known would continue to do so. Such behavior, at a minimum, would demonstrate enormously poor judgment. Respondent's behavior, however, went beyond poor judgment and constituted criminal conduct. Respondent did not simply know others were engaged in illegal conduct around him but was involved in illegal conduct himself.
Respondent had immersed himself in the drug milieu. He actively used marijuana with Yoselowitz and others involved in drug transactions with Yoselowitz. Large quantities of marijuana were delivered to the home regularly, with Respondent's knowledge. The quantity and quality of marijuana found in the home, as well as the presence of a gun and ammunition on the premises, shed significant light on the nature and extent of Yoselowitz's operation. This in turn reflects on the seriousness of Respondent's behavior. Marijuana transactions were conducted openly in Respondent's presence, several times a week. Respondent continued to room with Yoselowitz even though Respondent was well aware of Yoselowitz's marijuana dealings. Respondent assisted Yoselowitz in processing cash proceeds of marijuana sales. Respondent accompanied Yoselowitz to pick up proceeds of drug transactions at least once. There also was evidence Respondent himself had delivered drugs. Respondent directly benefited from Yoselowitz's marijuana dealing.
The drug-related misconduct present here would be reprehensible for any lawyer. Respondent, however, engaged in this misconduct while employed as an Assistant State's Attorney. This is an aggravating factor. Sims, 144 Ill. 2d at 325. Respondent's assignment in the Traffic Division entailed the duty to prosecute cases involving activity, i.e., possession of marijuana and drug paraphernalia, in which Respondent himself was engaged. The obvious hypocrisy inherent in this situation is extremely damaging to the integrity of the legal profession.
Respondent's phone calls to the various jails after learning of Yoselowitz's arrest represented an effort to use his position as an Assistant State's Attorney to obtain information as to Yoselowitz's whereabouts. We consider this an additional aggravating factor.
Respondent also engaged in additional misconduct. He lied to investigating police officers. This is particularly troubling. Respondent, as an Assistant State's Attorney, was
himself a member of the law enforcement community. Respondent also lied to his supervisors at the State's Attorney's office. Those false statements were made after time for reflection, as Respondent lied to his supervisors not only in the meeting the morning after his residence was searched, but also in the second meeting, which occurred over a week later.
The mitigating evidence Respondent presented does not override the seriousness of his misconduct. Compare Lunardi, 127 Ill. 2d at 423.
Volunteer work can be mitigating. In re Nelson, 02 CH 12, M.R. 19657 (Nov. 17, 2004). However, we may give volunteer work less weight where it serves a dual purpose of benefiting the attorney and does not represent truly selfless community service. See In re Newell, 93 CH 253, M.R. 9168 (Sept. 29, 1995). Respondent, who had not done any volunteer work since college, began volunteering with Jewish United Fund in late 2011. This timing, after the Complaint was filed and only a few months before the hearing, causes us to question the real motivation behind Respondent's volunteer work and suggests some degree of opportunism instead of a commitment to the community. Volunteer work can also deserve less weight where, as here, it is limited in time and scope. See In re Degnan, 99 CH 51, M.R. 17663 (Nov. 28, 2001).
Respondent has no prior discipline. However, Respondent had been licensed a scant three months when the misconduct with which he is charged began. A lack of prior discipline is not a significant mitigating factor where misconduct occurs early in the attorney's professional career. In re Vavrik, 117 Ill. 2d 408, 414, 512 N.E.2d 1226 (1987). Quite the opposite, it raises serious concern as to the attorney's willingness or ability to conform his or her conduct to proper standards. Cf. In re Harrison, 05 SH 20, M.R. 20932 (Sept. 20, 2006) (attorney's quickness in violating Rules of Professional Conduct after prior discipline considered in aggravation).
Similarly, Respondent's youth and inexperience are not mitigating. Years of experience practicing law are not required to enable a person to recognize the impropriety of this Respondent's conduct. See In re Rotman, 136 Ill. 2d 401, 420-21, 556 N.E.2d 243 (1990).
In this case, we have an Assistant State's Attorney who flaunted the law before and after being licensed to practice. Respondent had used drugs with Yoselowitz for years before sharing a residence with him. This history reflects Respondent's state of mind. Respondent continued in this pattern of behavior as his legal career began, thereby demonstrating an utter disregard for his responsibilities to uphold the law. Nothing in this record gives us any reason to think Respondent's behavior would have ceased if Yoselowitz had not been arrested.
For the foregoing reasons, we recommend Respondent, Aaron Ray Isaacson, 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 16, 2012.
Kenneth G. Jablonski, Clerk of the
1 The matter Ms. Yoselowitz described is not properly considered in aggravation, as it was extraneous to the misconduct charged and not part of any pattern of similar misconduct. In re Storment, 203 Ill. 2d 378, 400-401, 786 N.E.2d 963 (2002). Ms. Yoselowitz's negative opinion of Respondent also should be excluded as it serves primarily to suggest Respondent has a propensity for dishonesty, without genuine probative value to rebut the favorable character testimony from Respondent's uncle. Ill. R. Evid. 404; Podolsky & Associates, L.P. v. Discipio, 297 Ill. App. 3d 1014, 1026-27, 697 N.E.2d 840 (1st Dist. 1998).