Filed December 31, 2012
In re Vincent J. Krocka
Commission No. 06 CH 73
Synopsis of Hearing Board Report and Recommendation
This matter arises out of the Administrator's two-count First Amended Complaint filed on July 22, 2009. Respondent was charged with committing criminal acts that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer, engaging in conduct which is prejudicial to the administration of justice and failing to notify the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction.
The Hearing Board found that Respondent's failure to answer the First Amended Complaint and the judgments of conviction against Respondent were clear and convincing evidence that Respondent engaged in serious misconduct. The Hearing Board recommended that Respondent should be disbarred.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
VINCENT J. KROCKA,
Commission No. 06 CH 73
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on July 20, 2012, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC"), before a Panel of the Hearing Board consisting of Sang-yul Lee, Chair, Charles E. Reiter, III and K.F. Kitchen, II. Gina M. Abbatemarco appeared on behalf of the Administrator. Respondent was not present at the hearing and no counsel appeared on his behalf.
PLEADINGS AND PRE-HEARING PROCEEDINGS
On October 5, 2006, the Administrator filed a one-count Complaint charging Respondent with committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer and failing to notify the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction. On October 6, 2006, Respondent was mailed a copy of the Complaint to Florida where Respondent was incarcerated. A rule to show cause was issued to Respondent pursuant to Supreme Court Rule 761 on October 24, 2006. The rule to
show cause was enforced on December 14, 2006 and Respondent was suspended from the practice of law, effective immediately and until further order of the Court.
On December 26, 2006, Respondent filed his Answer to Complaint and a Motion to Stay the Proceeding. On January 8, 2007, pursuant to Supreme Court Rule 761(d), the proceedings were stayed pending Respondent's appeal of his conviction. The stay of proceedings was lifted on June 24, 2009. The Administrator learned that Respondent was convicted of subsequent criminal acts on March 6, 2009. On July 22, 2009, the Administrator filed a two-count First Amended Complaint. Respondent was served with a copy of the First Amended Complaint by regular mail. On August 4, 2009, pursuant to Supreme Court Rule 761(d), the proceedings were again stayed until completion of Respondent's appellate process of his second conviction.
On February 22, 2012, the Administrator's Motion to Lift Stay Order was granted. On April 24, 2012, Respondent's oral Motion to Reinstate the Stay was denied and a hearing was scheduled for July 20, 2012. On June 18, 2012, Respondent filed a Motion for Continuance, a Motion for Leave to Conduct Discovery, a Motion to Dismiss for Lack of Standing and a Motion to Stay the Proceedings pending the Outcome of the Respondent's Petition for Writ of Habeas Corpus. On June 21, 2012, a pre-hearing conference was held in which Respondent participated. At that time, Respondent's motions were denied. The Administrator's Motion to Deem the Allegations of the First Amended Complaint Admitted Pursuant to Commission Rule 236 was entered and continued. Respondent was given until July 12, 2012 to file an Answer to the First Amended Complaint. At the June 21, 2012 pre-hearing conference, Respondent stated he did not intend to participate in the July 20, 2012 hearing. Respondent failed to file his Answer to the First Amended Complaint or any motion to either stay or continue the hearing by July 12, 2012. Therefore, the Administrator's Motion to Deem the Allegations of the First Amended Complaint Admitted was granted.
The Administrator's Exhibits 1 through 12 were admitted into evidence. (Tr. 16). The admitted allegations and evidence presented established the following facts:
On April 5, 2004, Respondent barricaded himself in his home in Florida, with his two sons, one of whom was under the age of eighteen. After the police were summoned, Respondent fired a gun at least six times from a second-story window, nearly missing a police officer and damaging a police vehicle. During the incident, Respondent prevented his sons from leaving his home, although both eventually escaped the home unharmed. (Adm. Ex. 1).
On April 27, 2004, Respondent was charged in a four-count information filed in the Circuit Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, Florida, in a matter docketed as State of Florida v. Krocka, 04 CF 6505. (Adm. Ex. 1).
On April 19, 2006, following a jury trial, Respondent was convicted of charges of child neglect and criminal mischief. The Hon. Wayne Timmerman sentenced Respondent to a term of five years imprisonment on each charge, with the sentences to run consecutively, and with a 735-day credit on each charge for time incarcerated before imposition of the sentence. (Adm. Ex. 2).
On May 15, 2006, Respondent filed an appeal of his conviction with the Florida Court of Appeals for the Second District. On September 3, 2008, the Florida Court of Appeals for the Second District denied Respondent's appeal and affirmed the Circuit Court's decision. (Adm. Ex. 3).
Pursuant to Supreme Court Rule 761(a), Respondent was required to notify the Administrator of his conviction on or before May 10, 2006. Respondent did not notify the Administrator of his felony convictions on or before May 10, 2006.
Between June 8, 2005 and June 2, 2008, Respondent, while incarcerated pursuant to his conviction described in Count I, wrote at least 13 letters to his then-wife that contained threats, attempts to exhort her, and statements intended to prevent her from testifying against him. During that time, Respondent also wrote one letter to his son in which he attempted to persuade him to prevent his then-wife from testifying against him. Respondent sent the letters to their recipients via the U.S. Postal Service. (Adm. Ex. 4).
On April 5, 2006, Respondent was charged in a seventeen-count indictment filed in the United States District Court, Middle District of Florida, Tampa Division, in a matter docketed as United States of America v. Krocka, No. 06 CR 127. The information charged Respondent with having committed the offenses of sending threatening mail and sending extortionate threatening mail, in violation of 18 U.S.C. sec. 876(b) and (c). (Adm. Ex. 4).
On June 19, 2008, Respondent was charged in a superseding indictment with twenty-five counts of sending threatening mail and sending extortionate threatening mail, in violation of 18 U.S.C. sec. 876(b) and (c), and witness tampering, in violation of 18 U.S.C. sec. 1512(b)(1). (Adm. Ex. 5).
On March 6, 2009, following a jury trial, Respondent was convicted of four counts of sending threatening mail, four counts of sending extortionate threatening mail, and six counts of witness tampering. Also on March 6, 2009, Respondent was sentenced to 60 months imprisonment as to Counts Five, Ten, Eleven and Fifteen of the superseding indictment; 121 months as to Counts Thirteen, Fourteen, Sixteen and Seventeen of the superseding indictment; and 120 months imprisonment as to Counts Twenty through Twenty-five of the superseding indictment, all such terms to run concurrently with each other, and consecutively to the sentence imposed in the case described in Count I. The Federal Court also sentenced Respondent to 36
months of supervised release following the conclusion of his prison sentence; ordered Respondent to participate in a program for treatment of narcotic addition or drug or alcohol dependency; ordered Respondent to participate in a program of mental health treatment approved by his probation officer; ordered Respondent to provide his probation officer access to any requested financial information; and ordered that Respondent would be prohibited from incurring new credit charges, opening additional lines of credit, acquisitions, or obligating himself for any major purchases without approval of his probation officer. (Adm. Exs. 7, 8, 9).
On March 17, 2009, Respondent filed an appeal of his conviction with the United States Court of Appeals for the Eleventh Circuit. On April 28, 2010, the United States Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part the order of the District Court. On October 13, 2010 Respondent's appeal to the United States Supreme Court was denied. On August 17, 2011, the second sentencing order of the United States District Court, Middle District of Florida, Tampa Division was filed, affirming the aforementioned sentencing order. (Adm. Exs. 10, 11, 12).
Pursuant to Supreme Court Rule 761(a), Respondent was required to notify the Administrator of his federal conviction on or before April 6, 2009. Respondent failed to notify the Administrator of his federal, felony convictions by April 6, 2009.
On September 19, 2002, the Administrator filed a four-count complaint charging Respondent with falsifying a medical report he was required to complete in connection with his employment as a Chicago police officer; directing an obscene epithet toward an attorney representing the City of Chicago in litigation involving Respondent; and making a death threat to another lawyer for the City in that same litigation matter. In re Vincent J. Krocka, 02 CH 86,
M.R. 18945. Respondent generally admitted to engaging in the conduct set forth in Counts I, III and IV of the complaint. On August 20, 2003, the Administrator filed with the Illinois Supreme Court, Respondent's motion to transfer to disability inactive status pursuant to Supreme Court Rule 758(a). On that date, the Administrator also filed a response to Respondent's motion in which the Administrator agreed Respondent should be placed on disability inactive status at that time, and that the proceedings in case number 02 CH 86 should be stayed until such time as Respondent filed a motion under Supreme Court Rule 759 requesting that he be returned to active status. On September 22, 2003, the Court granted Respondent's motion and transferred Respondent to disability inactive status until further order of the Court.
Florida and District of Columbia
On October 29, 2009, Respondent was disbarred in Florida for the conduct which formed the basis for his state and federal convictions, and which is also the subject of this proceeding. The Florida Bar v. Vincent J. Krocka, No. SC09-790 (Oct. 29, 2009).
On October 21, 2010, Respondent was disbarred in the District of Columbia for the conduct which formed the basis for his state and federal convictions, and which is also the subject of this proceeding. In re Krocka, No. 10-BG-872, District of Columbia, Court of Appeals (Oct. 21, 2010).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator has the burden of proving the misconduct charged, by clear and convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). This is a high level of proof that requires more than a preponderance of the evidence. 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 (1991).
The allegations of the complaint were deemed admitted due to Respondent's failure to answer. The Administrator's exhibits provide further proof to support the admitted allegations of the First Amended Complaint. Therefore, we find that Respondent1:
committed a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct (Counts I and II);
engaged in conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (Counts I and II); and
failed to notify the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction, in violation of Supreme Court Rule 761(a) (Counts I and II).
In determining the sanction to recommend, we consider the facts and circumstances of this case, while mindful that the disciplinary system seeks some consistency in sanctions in similar cases. In re Ingersoll, 186 Ill. 2d 163, 177-78, 710 N.E.2d 390 (1999); In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). The purposes of discipline are also taken into account. Those purposes are not to punish the individual respondent, but to protect the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Spak, 188 Ill. 2d 53, 67-68, 719 N.E.2d 747 (1999); Timpone, 157 Ill. 2d at 197.
We also take into account those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991). By failing to appear at the hearing, Respondent forfeited his opportunity to present any evidence of mitigating circumstances.
In aggravation, Respondent has failed participate in these proceedings. Respondent has failed to take responsibility for the misconduct as described in this Report and Recommendation and expressed no remorse. Finally and significantly, Respondent has engaged in similar
misconduct. Previously, Respondent was charged with falsifying a medical report and threatening another attorney. Based on the totality of the record, Respondent has displayed a clear pattern of threatening behavior and an inability to adhere to the law.
The Administrator has recommended that Respondent's misconduct warrants disbarment. We believe the Administrator's suggestion is appropriate and adequately supported by precedent. A judgment of conviction of an attorney of a crime involving moral turpitude is conclusive evidence of his guilt and grounds for disbarment. A crime of moral turpitude is one which involves something done knowingly contrary to justice, honesty or good morals. In re Mirikitani, 96 CH 513, M.R. 13462 (Mar. 21, 1997) citing In re Needham 364 Ill. 65, 69, 4 N.E.2d 19, 21 (1936).
In Mirikitani, the attorney was convicted of willfully failing to file an IRS Form 8300 related to receipt of $30,000.00 in cash from a client, perjury before the Grand Jury and obstruction of justice by causing another to create false evidence. In addition to engaging in criminal activity, the attorney failed to inform the Administrator of his conviction within the requisite 30 days. The attorney did not participate in the disciplinary proceedings. Given the attorney's misconduct and failure to participate, the Court approved the Hearing Board's recommendation for disbarment.
In 1984, the attorney in In re Vavrik, 117 Ill. 2d 408, 512 N.E.2d 1226 (1987), was convicted of first degree grand theft. The attorney was sentenced to eight years probation and ordered to pay restitution. There, the attorney argued that his conduct was less culpable because he was not acting as an attorney at the time of the misconduct. The Court disagreed, stating, "it is not necessary that an attorney's misconduct be in the discharge of his professional duties in order to warrant discipline; any act which evidences a want of personal honesty or integrity may be sufficient to warrant disbarment." Vavrik, 117 Ill. 2d at 413.
Here, Respondent's conduct was similarly egregious to the attorneys' conduct in the above-stated case law. Respondent has a well-established pattern of making serious threats of bodily harm to others as well as an inability to adhere to the law. Finally, Respondent's failure to participate in the disciplinary proceedings demonstrated a serious disregard for the disciplinary process. See In re Brody, 65 Ill. 2d 152, 156, 357 N.E.2d 498 (1976). Given the egregious nature of Respondent's misconduct, along with aggravating evidence and analogous case-law, this panel believes that disbarment is necessary in order to protect the public.
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 December 31, 2012.
Kenneth G. Jablonski, Clerk of the
1 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.