Filed November 30, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
Commission No. 2011PR00047
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on June 27, 2012, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Hearing Board Panel consisting of John M. Steed, III, Chair, Fredrick H. Bates, and Frederich J. Bingham. Sharon D. Opryszek and Wendy J. Muchman appeared on behalf of the Administrator of the ARDC. Although Respondent filed a lengthy pretrial motion to dismiss and participated in multiple pre-hearing conferences, he did not appear at the hearing and was not represented by counsel.
On May 20, 2011, the Administrator filed a two-count Complaint pursuant to Supreme Court Rule 753. On May 26, 2011, the Administrator filed a first amended Complaint, correcting an error in the original Complaint. Respondent was personally served with the first amended Complaint on June 15, 2011. The first amended Complaint alleged Respondent engaged in inappropriate conduct in two instances while employed as an assistant state's attorney in Carroll County. In the first count, the Administrator alleged that Respondent overreached his
position of trust as a prosecutor when he began a personal relationship with a defendant, K.I., in a case he prosecuted. Respondent engaged in a discussion with K.I. while she was in jail. After K.I. was sentenced and released from custody, Respondent had another conversation of a personal nature. Subsequently, Respondent took K.I. out to dinner, and while in the car, touched her leg and kissed her. The following day, Respondent sent K.I. four text messages.
In the second count, Respondent, in his capacity as a prosecutor, charged A.F. with child pornography for taking pictures of J.C., who was 14 years old when the pictures were taken. During the course of the prosecution of the case, Respondent developed a personal relationship with J.C. and her family. As a result of that relationship, Respondent was removed from the case, but he continued the relationship with J.C. and her family. On February 22, 2010, when J.C. was 17 years old, she was at Respondent's apartment, and he kissed her and touched her breast.
On September 26, 2011, Respondent filed an Answer to the first amended Complaint, admitting some of the factual allegations and denying some of the factual allegations. Respondent admitted to having relationships with K.I. and J.C., but denied engaging in any inappropriate conduct with them. Respondent also denied all allegations of misconduct.
The Administrator presented the testimony of Scott Brinkmeier, the State's Attorney of Carroll County; K.I.; Lois Joyce L, K.I.'s grandmother; Shanna Bess, K.I.'s probation officer; J.C.; Naomi C., J.C.'s mother; and Stafford Henry, M.D. The Administrator's Exhibits 3-12 and 14-20, were received into evidence.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Thomas, 2012 IL 113035 par. 56. Clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence. "Clear and convincing evidence has been defined as evidence producing a firm belief or conviction as to the truth of the proposition." Cleary and Graham's Handbook of Illinois Evidence, sec. 301.6 (9th ed. 2009). This standard of proof is one in which the risk of error is not equally allocated; rather, this standard requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66, 102 S. Ct. 1388 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).
Before considering the merits of the alleged misconduct, we first address a preliminary matter concerning the applicable Rules. The allegations of misconduct in the first amended Complaint reference Rule numbers contained in the prior version of the Illinois Rules of Professional Conduct, which were replaced by new Rules effective on January 1, 2010. Based upon the allegations in the first amended Complaint, as well as the evidence presented, it appears that the majority of the conduct occurred after the effective date of the 2010 Rules. Respondent did not raise this issue or object to the charges on this basis. Moreover, we have reviewed the Rules at issue and conclude that, while they have been renumbered, they have not been substantially changed. The language in Rules 8.4(a)(3) and 8.4(a)(5) in the former Rules is identical to the language in Rules 8.4(b) and 8.4(d) of the 2010 Rules. Therefore, because
Respondent did not raise the issue and we see no issues regarding notice, we will address the charges under the applicable Rules.
Respondent is charged in Count I with overreaching his position of trust and authority as a prosecutor.
A. Evidence Considered
Respondent was admitted to practice law in Illinois in November 2008. In February 2009, Respondent began working as an assistant state's attorney in Carroll County, assisting in the prosecution of misdemeanors and petty offenses. (Tr. 27-30, 34-35; Adm. Ex. 14). Prior to April 2, 2009, Respondent was assigned to prosecute two cases involving K.I., a minor. On March 9, 2009, K.I. entered a plea of guilty to the offense of minor drinking and was sentenced to 22 days incarceration, followed by a 12 month period of conditional probation. Subsequently K.I. was arrested again and incarcerated in the County Jail. On October 21, 2009, Respondent made an unsolicited visit to the County Jail and met with K.I. Respondent discussed K.I.'s new case and then moved into a discussion of her personal history. K.I. told him, inter alia, she had a 37 year old boyfriend and was interested in photo journalism. (Tr. 94-105, 119-21). Respondent also learned that K.I. drank to intoxication almost daily, had experimented with controlled substances and had poor relationships with her family. This meeting lasted a couple of hours.
Between January 8 and 14, 2010, Respondent saw K.I. at the courthouse with her grandparents. Respondent asked K.I. how she was doing, and she told him she was waiting to get admitted to a halfway house. She also again told him about her interest in becoming a photo journalist. Respondent offered to lend her an old digital camera and told her to contact him about the camera. Approximately two weeks later, K.I. called Respondent at the State's Attorneys office. They had a 25 to 40 minute conversation of a personal nature, at the
conclusion of which, Respondent said he would drop the camera off at her grandparents' home. (Tr. 105-107).
On January 24, 2010, Respondent drove to K.I.'s grandparents' house and asked her if she wanted to go with him to Wal-Mart. K.I. thought his request was unusual because he was the prosecutor in her case, and she was afraid that if she did not go with him, he could create problems for her. (Tr. 107-108). Before going to Wal-Mart, Respondent stopped at Applebee's restaurant. One condition of K.I.'s probation on her first case was that she could not go to a restaurant that had a bar or be around alcohol. Applebee's had a bar. Additionally, K.I. was 19 years old, and had just completed an alcohol treatment program. They were seated next to the bar, and Respondent asked her if she wanted a drink. K.I. declined to order a drink and thought Respondent was trying to set her up or test her. (Tr. 108-11).
On the car ride back to K.I.'s house, K.I. told Respondent that she had "a crush on him forever." Respondent put his hand on her inner thigh, and she moved his hand away. Respondent tried to put his hand on her thigh a second time, K.I. moved it away again and told him to stop. Respondent pulled into a gas station to get gas. When he got back into the car, he grabbed K.I.'s chin and kissed her. She pushed him away, and the kissed her again. He started to become agitated, and asked K.I. if they could go back to his apartment. She said she wanted to go home, and he became more agitated. K.I. got out of the car, and Respondent agreed to drive her home. When she got home, she told her grandmother what had happened. (Tr. 111-14, 124-28).
The following day, on January 25, 2010, Respondent sent four text messages to K.I., to which K.I. did not respond. The text messages were as follows:
11:23 a.m. "Good morning! I had fun last night and I am looking forward to seeing you again tonight. Also, for right now, let's not create gossip, so let's be discrete."
12:05 p.m. "Let's take some pictures tonight."
4:02 p.m. "I think I can get out of her by 4:30. How about I pick you up at 5?"
4:07 p.m. "Hey this is hunter. Just checking 2 c if my txts r getting 2 u."
K.I. had no further contact with Respondent. K.I. showed the text messages to Shanna Bess, her probation officer. Ms. Bess then prepared and submitted a memo detailing the incident to State's Attorney Brinkmeier. (Tr. 114-18, 124-33; Adm. Ex. 12). On February 17, 2020, State's Attorney Brinkmeier confronted Respondent with the facts related to his relationship with K.I., and Respondent did not deny them or think he did anything wrong. State's Attorney Brinkmeier told Respondent he could no longer work for his office. On February 26, 2010, Respondent submitted his resignation. (Tr. 41-48; Adm. Exs. 12, 14).
B. Analysis and Conclusions
An attorney commits overreaching when he takes undue advantage of his position of influence over his client. In re Rinella, 175 Ill. 2d 504, 516, 677 N.E.2d 909 (1997). Generally, overreaching is discussed in the context of the attorney-client relationship; however, the principles underlying overreaching are equally applicable to other situations were the attorney takes advantage of his position of authority and influence. Respondent engaged in overreaching when he made unsolicited sexual advances to a defendant in a criminal matter in which he was the prosecutor.
Respondent used the knowledge he obtained from the criminal matter to create a reason to go to K.I.'s house. He knew she was interested in photography, and went to her house to lend her a camera. While he was there, he asked her if she wanted to go out with him. Respondent knew that K.I. was on probation, was under 21 years old, and had an alcohol problem. Nevertheless, he took her to a restaurant that had a bar, and attempted to buy her a drink. After leaving the restaurant, Respondent touched her thigh and forcibly kissed her. K.I. was
uncomfortable and pushed him away. He kissed her again and she excited the car. These facts demonstrate Respondent clearly used his position of influence to create an opportunity to be alone with K.I. fulfill his own sexual desires. It is apparent to the Panel after hearing from and observing the demeanor of K.I., that K.I. would not have gone with Respondent in the first place, and would not have tolerated his subsequent behavior, if he had not been the prosecutor in her case. In fact, K.I. testified that she thought that if she did not go with Respondent, he could create problems for her in her criminal case. Based on the above testimony, we find Respondent engaged in overreaching when he used his position as an assistant state's attorney to take advantage of K.I.
Respondent is charged in Count I with engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), which is rule 8.4(d) of the 2010 Rules.
A. Evidence Considered
We consider the evidence contained in Section I, above, for this section.
B. Analysis and Conclusions
Respondent's conduct was prejudicial to the administration of justice because it undermined the authority of State's Attorney's office and K.I.'s criminal matter. Respondent was the assistant state's attorney who prosecuted K.I.'s criminal matter. He used information he obtained in the course of performing his official duties to begin a personal relationship with her, starting with his unsolicited visit to her in jail. He used his position as a state's attorney to pressure K.I. to go out with him. K.I. testified that she thought if she declined Respondent's invitation he could create problems for her. Additionally, while pursuing that relationship, he attempted to have K.I. violate the terms of her probation by taking her to a restaurant that had a bar, and offering to buy her a drink. By abusing his position of authority and putting K.I. at risk
of violating her probation, Respondent undermined the criminal justice system in general and K.I.'s case in particular.
Respondent is charged in Count II 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), which is rule 8.4(b) of the 2010 Rules, by committing criminal sexual abuse in violation of 720 ILCS 5/12-16(f).
A. Evidence Considered
In April 2009, the State filed a complaint against A.F. charging him with violating a civil no contact order held by J.C., a minor. J.C.'s mother, Naomi, testified that A.F. physically and verbally abused J.C. As a result of that relationship, J.C. became emotionally unstable, attempted suicide and was admitted to an in-patient treatment program. Respondent met J.C. while prosecuting that case. In June 2009, after additional investigation, Respondent filed a two-count complaint on behalf of the State charging A.F. with child pornography by photographing J.C. in several poses with her genitals exposed, with the intent to disseminate the photos. (Tr. 31-36; Adm. Ex. 15).
After the charges were filed, J.C. developed a friendship with Respondent, and they saw each other once or twice per week. Sometimes Respondent would visit J.C.'s family at their home, and sometimes Respondent, J.C. and Naomi would go out to eat. In late January 2010, J.C. went to Respondent's apartment. At that time, J.C. was 17 years old, and Respondent was 34 years old. After some conversation, Respondent was lying down on the sofa on his side, and J.C. was lying down in front of him on her side. Respondent told J.C. he was having dirty thoughts, and began rubbing her side. Respondent slipped his hand up J.C.'s blouse and touched her breast. She panicked, got up from the sofa, and said she had to go. Respondent grabbed her waist and asked her not to go. J.C. sat down next to Respondent, kissed him, and left his
apartment. This was the only occasion where Respondent had any sexual contact with J.C. (Tr. 53-60, 71-83).
Subsequently, Respondent informed Naomi he kissed J.C., and Naomi became angry and ordered Respondent out of her house. (Tr. 60-61, 71-83; Adm. Ex. 7). Throughout the pending criminal matter, J.C. trusted Respondent and called him a "hero" on her Myspace page. She considered Respondent her "knight in shining armor" because he was on her side in the A.F. matter when no one else was there for her. (Tr. 55, 62-63, 66-70). When Respondent left Carroll County in February of 2010 (as a result of the K.I. incidents), J.C. thought he was a coward and did not understand why he would leave her alone. Respondent did not explain why he left, and J.C. has had no contact with him since then. (Tr. 63-64, 87, 93).
By mid-July 2009, Respondent asked State's Attorney Brinkmeier to remove him from the A.F. case because his impartiality in the matter had been questioned. (Tr. 36-37; Adm. Ex. 14 at 6-8). After discussing the matter with Respondent, State's Attorney Brinkmeier learned of Respondent's involvement with the victim, J.C., and instructed him to have no contact with J.C. or her family. In subsequent conversations with Respondent, it was apparent to State's Attorney Brinkmeier that Respondent had ignored his instructions and had continued contact with J.C. and her family. (Tr. 36-40; Adm. Ex. 14 at 6, 14-16).
B. Analysis and Conclusions
We find Respondent engaged in criminal conduct in relation to J.C. At all relevant times, the Illinois Criminal Code provided: "Aggravated Criminal Sexual Abuse: a person commits aggravated criminal sexual abuse if he or she commits an act of sexual conduct with a victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in
relation to the victim." 720 ILCS 5/12-16(f). We find the elements of this crime were established in this case. Respondent committed an act of sexual conduct when he touched J.C.'s breast, who was 17 years old at the time of the incident while Respondent was 34 years old. Further, as demonstrated by the following facts and cases, Respondent held a position of trust, authority or supervision over J.C.
Respondent was an assistant state's attorney who investigated and initiated a criminal case against A.F., in which J.C. was a minor-victim. In the course of that case, Respondent developed a friendship with J.C. and her family. Respondent saw J.C. once or twice per week. J.C. and her mother testified that J.C. viewed Respondent as her "hero" and "knight in shining armor" because he brought the case against A.F. By virtue of his position as an assistant state's attorney, his involvement in the prosecution of the criminal case, and his continued personal relationship with J.C., we find Respondent was clearly in a position of trust and authority over her. See People v. Reynolds, 294 Ill. App. 3d 58, 689 N.E.2d 335 (1st Dist. 1997) (the fact that the position of trust did not arise until after the sexual relationship had commenced did not shield the defendant from prosecution); see also People v. Kaminski, 246 Ill. App. 3d 77, 615 N.E.2d 808 (2nd Dist. 1993). Thus, all of the elements of this statute have been established.
Respondent's violation of this criminal statute reflects adversely on his trustworthiness and fitness to practice law. As an assistant state's attorney, Respondent was charged with prosecuting violations of the criminal laws. When he violated one of those laws, especially with a victim of one of the crimes he was prosecuting, he demonstrated that he cannot be trusted to fulfill his duties as an assistant state's attorney. Further, when he violated the law by taking advantage of a vulnerable minor, and for his own sexual gratification, he demonstrated that he cannot be trusted to practice law in any capacity.
Our finding that Respondent committed a criminal act does not mean that he would necessarily be convicted of that crime in a criminal court. The burden of proof applicable in criminal proceedings is a higher than the burden applicable in disciplinary proceedings. The purpose of this disciplinary proceeding is to determine whether Respondent engaged in conduct that violates the disciplinary rules and whether he is fit to practice law. An attorney can be found to have engaged in misconduct under the disciplinary rules even if he has not been charged or acquitted of criminal charges based on the same conduct. In re Ettinger, 128 Ill. 2d 351, 368, 538 N.E.2d 1152 (1989).
Respondent is charged in Count II with overreaching his position of trust and authority as a prosecutor.
A. Evidence Considered
As discussed in the previous section, Respondent investigated and initiated the criminal case against A.F., in which J.C. was the victim. He initially began a professional relationship with J.C., and that relationship became personal. J.C. viewed Respondent as her "hero" and thought of him in this way based on the exercise of his official duties.
B. Analysis and Conclusions
An attorney commits overreaching when he takes undue advantage of his position of influence over his client. Rinella, 175 Ill. 2d at 516. Generally, overreaching is discussed in the context of the attorney-client relationship; however, the principles underlying overreaching are equally applicable to other situations were the attorney takes advantage of his position of influence. Respondent engaged in overreaching when he made unsolicited sexual advances to a young victim in a criminal matter in which he acted as the prosecutor. He used the relationship he developed from pursuing the criminal matter to take sexual liberties with the young victim in that criminal matter. The fact that Respondent was no longer assigned to the criminal case when
he kissed and touched J.C. does not affect our finding. Respondent was still an assistant state's attorney at the time and the criminal matter was still pending. Therefore, we find the Administrator proved Respondent engaged in overreaching.
Respondent is charged in Count II with engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), which is 8.4(d) of the 2010 Rules.
A. Evidence Considered
We consider the evidence contained in Section III, above, for this section.
B. Analysis and Conclusions
Respondent's conduct is prejudicial to the administration of justice because it undermined the mission of the State's Attorney's office. Respondent was charged with enforcing the criminal statutes. Instead of executing his official duties, he abused his authority, took advantage of a minor who was the victim in a pending criminal matter, and violated a criminal law. His conduct undermined the authority of the State's Attorney's office and cast that office in a negative light. Additionally, Respondent's conduct could have affected the pending criminal matter.1
EVIDENCE OFFERED IN AGGRAVATION AND MITIGATION
Testimony of Dr. Stafford Henry
Dr. Stafford Henry is a board certified physician and psychiatrist who practices in the areas of forensic and addiction psychiatry. In early 2011, he conducted a forensic evaluation of Respondent, and based on that evaluation formed expert opinions regarding Respondent which he testified to at the hearing in this matter. Dr. Henry met with Respondent on two occasions and reviewed relevant documents related to Respondent's history and conduct. (Tr. 136-40; Adm. Ex. 19).
Dr. Henry described Respondent as bright and reality based, although Respondent reported a history of depression. Dr. Henry diagnosed Respondent as having depressive disorder, and prominent narcissistic personality features. Dr. Henry explained that a person with narcissism has an overwhelming sense of entitlement, tends to view others as objects, is unable to have a connection and intimacy in relationships, have a profound lack of empathy, and are impulsive. Often narcissism is a compensation for a deep-seated sense of inadequacy and low self-esteem. Respondent has been treated for depression on four separate occasions. (Tr. 144-50, 152-54, 173-74). Subsequent to Dr. Henry's meeting with Respondent, Respondent's living situation changed, and based on Respondent's more recent writings, including his internet blog, Dr. Henry saw evidence of a sense of despondency and hopelessness. (Tr. 150-53; Adm. Ex. 20). Dr. Henry found no evidence that Respondent suffers from any sexual disorders. (Tr. 154; Adm. Ex. 19).
Dr. Henry opined that Respondent's relationships with K.I. and J.C. were inappropriate, demonstrated a lack of understanding of the relationship between an attorney and a defendant and victim, and reflected "exceedingly" poor judgment. (Tr. 154-55; Adm. Ex. 19). Of note, Respondent told Dr. Henry that, even after the relationship with K.I. cost him his job, he still thought there was nothing wrong with the relationship. (Tr. 155-56). Dr. Henry opined that without treatment, Respondent is at risk to engage in similar conduct in the future, especially with vulnerable clients. (Tr. 156-60, 175-76).
Respondent has no prior discipline.
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). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). 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). Also, "it is important to recognize the deterrent value of a sanction and the need to impress upon others the seriousness of the misconduct at issue." Twohey, 191 Ill. 2d at 85.
The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during that attorney's disciplinary proceedings. See Gorecki, 208 Ill. 2d at 360-61. In the present case, there are several aggravating and mitigating factors.
Initially, Respondent's misconduct is aggravated by the fact that he failed to participate in the disciplinary hearing. Respondent filed an Answer to the Complaint, motions to dismiss the complaint, and participated in the pre-hearing proceedings. However, he deliberately chose not to attend the hearing. 2 This failure demonstrates a lack of respect for the disciplinary process,
and deprived the Panel of the opportunity to ascertain a fuller understanding of the facts of this case.
We find it disturbing that Respondent took advantage of vulnerable young women for his personal or sexual benefit. Consistent with his narcissistic personality features, Respondent took advantage of the trust placed in him by these girls and their families. The facts demonstrate Respondent selected young girls who had significant personal problems. One was a minor, the other still a teenager. The minor, J.C., had been abused by an older man, and was previously victimized through a display of pornographic pictures. The other girl, K.I., had addiction issues and was living with her grandmother. Respondent made a point to ingratiate himself to these girls, delved into their personal histories, and used that information not to advance the criminal cases, but rather for his own benefit. He subtly created relationships of trust with them, and took advantage of those relationships by initiating sexual advances. We find this calculating conduct in targeting vulnerable young women a significant aggravating factor.
Moreover, Respondent aggravated his misconduct by causing harm to an individual he was supposed protect. Respondent, as an assistant state's attorney, was charged with protecting the public by prosecuting criminal matters. At the time Respondent engaged in misconduct with J.C., she was the victim in a pending child pornography case. She had been physically and verbally abused by the defendant in that case, and was emotionally unstable. When Respondent touched her in a sexual manner, he essentially made J.C. a victim for a second time. His actions with J.C. compound the aggravating facts of this case. See In re Cutright, 233 Ill. 2d 474, 910 N.E.2d 581 (2009).
Further, Respondent has failed to acknowledge his misconduct or show remorse for his actions. Although Respondent did not address this issue directly, the evidence presented at the
hearing, including Dr. Henry's testimony, establishes that Respondent has refuses to accept his actions amounted to misconduct. Failing to recognize the seriousness of misconduct and the lack of remorse are aggravating factors that must be considered. In re Lewis, 138 Ill. 2d 310, 562 N.E.2d 198 (1990). Without acknowledging his misconduct and demonstrating remorse, we believe, and Dr. Henry's confirmed, that Respondent would repeat this type of conduct in the future.
Respondent's misconduct is also aggravated by the fact that he was an assistant state's attorney when he engaged in the misconduct. As an assistant state's attorney, Respondent was sworn to enforce the law. When he violated the law, he violated his oath of office as a lawyer and as an assistant state's attorney. In re Crisel, 101 Ill. 2d 332, 343-44, 461 N.E.2d 994 (1984).
Possible mitigation may arise from the fact Respondent has not received a prior discipline. Generally, the lack of a prior discipline is a mitigating factor. See Lewis, 138 Ill. 2d 310. However, Respondent had been practicing law for less than one year before he engaged in misconduct. The misconduct in this case arose during his first legal job. The lack of prior discipline is not a significant mitigating factor when the misconduct occurs early in the attorney's professional career. In re Varrik, 117 Ill. 2d 408, 414, 512 N.E.2d 1226 (1987). Accordingly, we give little weight to the fact that Respondent has no prior discipline. Similarly, Respondent's misconduct is not the type of misconduct that can be attributed to inexperience. Instead, it is misconduct that any attorney should immediately recognize as wrong. See In re Rotman, 136 Ill. 2d 401, 420-21, 556 N.E.2d 243 (1990).
Having considered the aggravating and lack of mitigating factors, we must now recommend the appropriate sanction. The Administrator recommends Respondent be disbarred.
He bases his recommendation on several cases. See In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909 (1997); Lewis, 138 Ill. 2d 310; In re Armentrout, 99 Ill. 2d 242, 457 N.E.2d 1262 (1983).
In Rinella, the attorney was suspended for three years and until further order of the court after he had consensual sexual relations with three adult clients and lied to the ARDC about his conduct. This case stands for the proposition that sexual relationships between an attorney and his adult clients will not be tolerated. See also In re Erwin, 04 CH 114, M.R. 22401 (Sept. 16, 2008) (attorney suspended for 15 months after inappropriately touching a client and making false statements to law enforcement authorities investigating the matter). There is no question in our minds that the prohibition against sexual contact in Rinella applies to sexual relationships between an assistant state's attorney and the defendant and/or the victim in the criminal matters he prosecutes.
In Armentrout, the attorney/respondent was the Kane County State's Attorney, and he was suspended for two years after he directed a scheme to forge voters' names on a petition for a statewide referendum on a tax issue and falsely notarized the petitions. In that case, the Court relied on the fact that Armentrout was a State's Attorney as an aggravating factor. So too here, we find Respondent's conduct is aggravated by his sworn position of Assistant State's Attorney. Indeed, but for his position, Respondent would never have encountered the vulnerable girls he seeks out.
In Lewis, the attorney engaged in several instances of neglecting client matters and commingling and converting client funds and was disbarred. In that case, the Court imposed a harsh sanction since the attorney failed to acknowledge his misconduct. Respondent similarly has no remorse.
After reviewing these cases, and the facts of the present case, we recommend that Respondent be disbarred. We base this recommendation on the facts that Respondent was in a position of trust and authority, used that position to take advantage of vulnerable girls, and has demonstrated no acknowledgment of his misconduct. We place substantial weight on Dr. Henry's expert opinion that Respondent lacked an understanding of the relationship between an attorney and defendant or client, and that Respondent believed there was nothing wrong with the relationships he had with J.C. and K.I. Most importantly, Dr. Henry concluded that without treatment, Respondent is at risk to engage in similar conduct in the future, especially with vulnerable and susceptible clients. Given that attorneys meet and represent vulnerable and susceptible clients every day, Respondent is a threat to the community at large. Accordingly, we find that the only way to protect the public from further misconduct is to disbar Respondent.
Therefore, in light of Respondent's misconduct, and considering the aggravating and mitigating factors, and the relevant case law, we recommend that Respondent be disbarred.
M. Steed, III
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 30, 2012.
Kenneth G. Jablonski, Clerk of the
1 In Counts I and II, the Administrator also charged Respondent with engaging in "conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770." The Illinois Supreme Court recently stated, "Rule 770 is not itself a Rule of Professional Conduct" and "one does not 'violate' Rule 770. Rather, one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct." In re Thomas, 2012 IL 113035, par. 92. Accordingly, based on the wording of the allegation in the Complaint before us, we find no violation of Rule 770.
2 Respondent represented himself at many of the pre-hearing conferences and provided an email addresses for service of the pre-hearing orders. The orders setting the matter for hearing were sent to the email he provided months ahead of the date. Further, Respondent's brother, a non-lawyer, did appear at the hearing, and informed the Panel that Respondent was aware of the proceeding, and he anticipated Respondent would be present. (Tr. 11-12, 22-24).