Filed April 8, 2013
In re John Frank Harris
Commission No. 2012PR00026
Synopsis of Hearing Board Report and Recommendation
Respondent was charged in a one-count complaint with misconduct based upon his guilty plea and federal criminal conviction on one count of conspiracy to commit theft of programs receiving federal funds. The criminal charges against Respondent stemmed from his conduct while serving as chief of staff to former Illinois Governor Rod Blagojevich. As part of his guilty plea, Respondent admitted participating in a conspiracy with the former governor to solicit and demand things of value for Blagojevich in connection with the appointment of a United States Senator to fill the seat vacated by Barack Obama upon his election as President in 2008. In addition to pleading guilty, Respondent cooperated extensively with the government in the criminal matter and testified against the former governor at both of his criminal trials. Respondent received a reduced sentence of ten days in prison, two years of supervised release, and a $1,000 fine.
Based upon his criminal conviction, Respondent was suspended on an interim basis by the Illinois Supreme Court on April 6, 2010.
Respondent was charged in this proceeding with committing a criminal act that reflects adversely on his honesty and fitness as a lawyer, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, assisting another lawyer in committing ethical violations, and engaging in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The Hearing Board found that all of these charges were proven by clear and convincing evidence.
Based upon the serious nature of Respondent's misconduct, the Administrator sought his disbarment. After taking into account Respondent's extensive cooperation in the criminal matter as well as additional evidence in mitigation, the Hearing Board recommended that Respondent be suspended for three years. The Hearing Board rejected the Respondent's request that the suspension be imposed retroactive to the date of his interim suspension.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
JOHN FRANK HARRIS,
Commission No. 2012PR00026
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on October 30, 2012, and December 4, 2012, at the Chicago offices of the Attorney Registration and Disciplinary Commission (ARDC), before a Hearing Board panel consisting of Kenn Brotman, Chair, Jay A. Frank, and Donald A. Pettis, Sr. Wendy Muchman appeared on behalf of the Administrator. Respondent appeared and was represented by Mary T. Robinson.
On June 6, 2012, the Administrator filed a one-count Amended Complaint pursuant to Supreme Court Rules 761(b) and 753 charging Respondent with various ethical violations stemming from his guilty plea and resulting federal criminal conviction on one-count of conspiracy to commit theft of programs receiving federal funds. Respondent's criminal conviction is based upon his participation in a conspiracy with former Illinois Governor Rod Blagojevich (Blagojevich) to solicit and demand things of value from others for the benefit of
Blagojevich in connection with the appointment of a United States Senator to fill the seat vacated by Barack Obama upon his election as President of the United States in 2008.
Respondent filed an Answer to the Amended Complaint on June 27, 2012, in which he admitted almost all of the factual allegations but denied the charges of misconduct.
Respondent's Interim Suspension
On March 26, 2010, the Administrator filed a petition with the Illinois Supreme Court seeking his interim suspension pursuant to Supreme Court Rule 774 based upon his criminal conviction. Respondent executed a waiver and consent agreeing to his suspension. On April 6, 2010, the Illinois Supreme Court suspended Respondent until further order pursuant to Supreme Court Rule 774. (Ans. Pars. 3, 4).
The Administrator alleged that Respondent engaged in the following misconduct: 1) committed a criminal act that reflects adversely upon the lawyer's honesty and fitness as a lawyer by engaging in a conspiracy to commit theft of federal funds in violation of 18 U.S.C Sections 666(a)(1)(B) and 371; 2) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; 3) knowingly assisted another to violate the Illinois Rules of Professional Conduct; and 4) engaged in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Rules 8.4(a)(3), 8.4(a)(4), and 8.4(a)(2) of the Illinois Rules of Professional Conduct (1990).
The Administrator introduced the testimony of Assistant United States Attorney Carrie Hamilton and Respondent as an adverse witness. Respondent testified on his own behalf and
introduced the testimony of 10 additional witnesses. The parties entered into a stipulation regarding the testimony of one witness. (Tr. 568). Administrator's Exhibits 1-27 and Respondent's Exhibits 2-6, 8, 9 and 11 were received into evidence. (Tr. 7, 124, 385, 531, 534, 568).1
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. Ill. Sup. Ct. R. 753(c)(6) (2010); In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). This standard of proof requires a high level of certainty, which is greater than a preponderance of the evidence but not as great as proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 484, 577 N.E.2d 762 (1991); Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995). It is the responsibility of the Hearing Panel to determine the credibility of the witnesses, weigh conflicting testimony, draw reasonable inferences, and make factual findings based on all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300 (1993).
In this case, the disciplinary charges are based upon Respondent's criminal conviction. For purposes of disciplinary proceedings, proof of the attorney's criminal conviction is conclusive evidence of the attorney's guilt of the crime. See Ill. Sup. Ct. R. 761(f); In re Williams, 111 Ill. 2d 105, 115, 488 N.E.2d 1017 (1986); In re Gold, 77 Ill. 2d 224, 226-27, 396 N.E.2d 25 (1979). Thus, it is not appropriate in a disciplinary matter for the respondent to attempt to re-litigate his guilt or innocence of the underlying criminal charges. In re Ciardelli, 118 Ill. 2d 233, 239, 514 N.E.2d 1006 (1987). Furthermore, while a respondent is permitted to present evidence regarding the nature of his underlying conduct for purposes of determining an appropriate sanction, a respondent cannot seek to go behind the conviction or attempt to impeach
the factual basis for the conviction or the underlying charges. See Ciardelli, 118 Ill. 2d at 239-40; In re Ruggiero, 00 CH 29, M.R. 16933 (Sept. 19, 2002) (Review Board at 3-4).
I. Respondent is charged with committing a criminal act that reflects adversely on the lawyer's honesty and fitness as a lawyer by engaging in a conspiracy to commit theft of federal funds in violation of 18 U.S.C. Sections 666(a)(1)(B) and 371, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct (1990).
A. Admitted Facts and Evidence Considered
1. Respondent's Indictment, Guilty Plea, Conviction and Sentencing
On December 7, 2008, a two-count criminal complaint along with a supporting affidavit was filed in the U.S. District Court for the Northern District of Illinois charging Respondent and Blagojevich with several crimes, including conspiracy to participate in a scheme to defraud the State of Illinois and the People of the State of Illinois of their honest services, in violation of 18 U.S.C. Sections 1341, 1343, 1346, 1349. The criminal complaint and supporting affidavit were used to effectuate Respondent's arrest by FBI agents at his home on December 9, 2008. (Tr. 45-48; Adm. Ex. 1).
The case was later presented to a grand jury, which returned a superseding indictment against Respondent, Blagojevich, and others on April 2, 2009. Count IV of the superseding indictment charged that Respondent knowingly and intentionally participated in a scheme to commit wire fraud, in violation of 18 U. S. C. Sections 1343 and 1346. On July 8, 2009, Respondent entered a plea of guilty to that Count pursuant to a plea agreement. (Ans. Par. 2; Tr. 54-55).
On February 4, 2010, a second superseding indictment was filed against Respondent, Blagojevich, and others. Count 23 of the second superseding indictment charged that Respondent conspired with Blagojevich and others to commit theft of programs receiving federal funds, in violation of 18. U.S.C. Sections 666(a)(1)(B) and 371. The allegations in Count 23
outlined a conspiracy by which the defendants sought to solicit and demand things of value for the benefit of Blagojevich and his wife in exchange for Blagojevich's exercise of his duty under Illinois law to appoint a United States Senator to fill the vacancy created by the election of Barack Obama as President of the United States. On May 14, 2010, Respondent entered a plea of guilty to Count 23 of the second superseding indictment pursuant to a plea agreement and a judgment of guilty on Count 23 was entered by the court. (Ans. Pars. 5, 6, 7; Tr. 55; Adm. Exs. 2, 3).
On March 28, 2012, after taking into account Respondent's cooperation and other factors, Judge James B. Zagel sentenced Respondent to ten days in prison and two years supervised released. He also imposed a $1,000 fine and a $100 assessment charge. (Ans. Par. 8; Adm. Exs. 24, 25).
2. Factual Basis for Respondent's Conviction
Starting in December 2005 and continuing until December 2008, Respondent served as then Illinois Governor Blagojevich's chief of staff. From approximately October 2008 to December 9, 2008, Respondent and co-defendant Blagojevich conspired with each other and others, to corruptly solicit and demand things of value for the benefit of Blagojevich, an agent of the State of Illinois, intending to be influenced and rewarded in connection with a business, transaction, and series of transactions of the State of Illinois involving a thing of value of $5,000 or more, namely the appointment of a United States Senator, in violation of 18 U.S.C. Section 666(a)(1)(B) and 18 U.S.C. Section 371. It was part of the conspiracy that Blagojevich, with the assistance of Respondent and others, sought to obtain financial benefits for Blagojevich and his wife, in return for the exercise of his duty under Illinois law to appoint a United States Senator to fill the vacancy created by the election of Barack Obama as President of the United States. At
times Respondent assisted Blagojevich's efforts to carry out the conspiracy by suggesting means by which Blagojevich could secure personal benefits for himself in exchange for appointing a United States Senator, conducting factual research relating to the conspiracy at Blagojevich's direction, and counseling Blagojevich on carrying out the conspiracy. At other times, Respondent expressed opposition to Blagojevich's efforts to enrich himself through his appointment of a United States Senator, and/or did not follow instructions from Blagojevich to assist in those efforts. (Adm. Ex. 3 at 2-3; Adm. Exs. 4-17, 27; Ans. Pars. 9, 10).
Over the course of many months in 2008, Respondent participated in and was aware of discussions involving Blagojevich and others about the possibility that Blagojevich might have the ability to appoint someone to replace then-U.S. Senator Barack Obama if he won the general election for President of the United States. By early October 2008, Respondent participated in regular conversations with Blagojevich about what personal benefits Blagojevich could obtain in exchange for naming someone to the U.S. Senate seat should Obama win the Presidency. As one example, around October 6, 2008, Blagojevich asked Respondent what Blagojevich could get in exchange for the U.S. Senate seat. Respondent told Blagojevich that the appointment could either reward an ally or make a new ally, but Blagojevich could not trade the Senate seat for something for himself. In other discussions with Blagojevich, Respondent and others told Blagojevich that he could not receive money (either campaign money or other money), in exchange for naming someone to the Senate seat. Blagojevich ignored Respondent's statements. (Tr. 76-77, 104, 456-59; Adm. Ex. 3 at 3-4; Ans. Par. 10).
Shortly before and immediately after the November 4, 2008 election of Barack Obama as President of the United States, Blagojevich's discussions with Respondent about Blagojevich's appointment of a replacement Senator became more frequent and more detailed. Respondent
participated in numerous discussions with Blagojevich and others about this issue. Respondent was aware that Blagojevich was also talking to a small group of internal and external advisors about this issue. Throughout the course of these discussions, Blagojevich made it clear to Respondent that Blagojevich was not focused on what was in the best interest of the people of the State of Illinois, but instead was focused in large part on what Blagojevich could get personally in exchange for the Senate appointment. (Adm. Ex. 3 at 4; Adm. Exs. 4-17, 27; Ans. Par. 11; Tr. 77).
Around the time of the November 4, 2008, election, Respondent learned that Senate Candidate B was interested in the Senate seat. Blagojevich discussed with Respondent that he wanted to use Senate Candidate B's interest in the Senate seat as a way to get something for himself from President-elect Obama. Initially, Blagojevich wanted to be appointed Secretary of Health and Human Services (HHS). On or about November 6, 2008, Blagojevich met with Service Employees International Union (SEIU) Official A, who had been presented to Blagojevich and Respondent as an emissary working on behalf of President-elect Obama with respect to filling the Senate seat. Prior to the meeting, Respondent helped Blagojevich strategize regarding how to ask SEIU Official A for the HHS position in exchange for making Senate Candidate B the Senator. After the meeting, Blagojevich told Respondent and others that during the meeting, he asked SEIU Official A for the HHS position in exchange for making Senate Candidate B the Senator. (Tr. 78-80; Adm. Ex. 3 at 4-5; Ans. Para. 12).
During discussions with Respondent, Blagojevich expressed interest in an ambassadorship from President-elect Obama in exchange for making Senate Candidate B the Senator. On or about November 5, 2008, Blagojevich directed Respondent and Deputy Governor A to research ambassadorship options for him. Blagojevich also directed Respondent
and Deputy Governor A to research private foundations where he might be able to get a high-paying position in exchange for making Senate Candidate B the Senator. Respondent told Blagojevich that the private foundation option would give President-elect Obama a buffer, meaning that it would not be obvious that Blagojevich was getting a position in exchange for making Senate Candidate B the Senator. Respondent suggested that the foundation would need to be a group that was dependent on federal funding, so that President-elect Obama would have enough influence to get Blagojevich a position. Blagojevich was very interested in this idea and told Respondent to look into options right away. (Tr. 78-80, 105-106, 392-97; Adm. Ex. 3 at 5-6; Adm. Exs. 6, 7, 27; Ans. Para. 13).
Deputy Governor A asked whether Blagojevich was thinking about a position with a private foundation for 2010, when his term as Governor ended, or now. Blagojevich said that he wanted the position now and wanted to know how much the position paid. Deputy Governor A responded that the salary was likely $200,000 to $300,000. Blagojevich seemed disappointed in that salary and asked something like, "Oh is that all?" At that point, Respondent said that he thought the salary was more like $300,000 to $500,000. Blagojevich had a more positive reaction to that salary. Blagojevich suggested that SEIU and other labor unions provided funds to some private foundations and suggested those foundations be the ones Respondent and Deputy Governor A research. Respondent understood that Blagojevich's personal financial circumstances and security were a significant consideration for Blagojevich in his analysis of whom he should name to the Senate seat. (Adm. Ex. 3 at 6).
Blagojevich told Respondent that if he could not get a position directly through President-elect Obama in exchange for picking a desired candidate, then Blagojevich would seek a position through supporters of President-elect Obama in exchange for naming someone to the
Senate seat. Blagojevich asked Respondent to develop a union-based option for him. The next day, Respondent responded to his assignment by presenting Blagojevich with an idea by which Blagojevich could become the national coordinator for an organization named "Change to Win." Change to Win is an organization associated with a number of labor unions, including SEIU. Respondent suggested to Blagojevich that SEIU Officials A and B, whom Respondent and Blagojevich believed were already acting as emissaries between Blagojevich and President-elect Obama for purposes of picking a desired Senate candidate, could get Blagojevich the Change to Win position in exchange for Blagojevich agreeing to make Senate Candidate B the Senator. Respondent explained to Blagojevich that the benefit to SEIU would be that SEIU would have helped President-elect Obama by getting Blagojevich to appoint Senate Candidate B to the Senate and in exchange, President-elect Obama would look favorably on SEIU's agenda in President-elect Obama's administration. The benefit to Blagojevich would be a paid position as National Coordinator with Change to Win. Respondent further explained that the benefits to President-elect Obama would be that Blagojevich would appoint Senate Candidate B to the U.S. Senate seat, and SEIU Officials A and B would act as a buffer between President-elect Obama and Blagojevich. (Tr. 106, 398-402; Adm. Ex. 3 at 6-7; Ans. Para. 14; Adm. Exs. 8, 27).
Respondent explained to Blagojevich that the Change to Win position would keep him politically viable, pay him a salary, and provide him with union support and connections for whatever he wanted to do down the road. Blagojevich said that he thought it was a great idea, but was concerned that he would have to make the Senate appointment first, which meant that SEIU could withhold the Change to Win position later. Respondent explained to Blagojevich that part of the advantage of the Change to Win idea was that this was something that SEIU Officials A and B could promise Blagojevich now and Blagojevich could believe that they would
follow through on later, while part of the disadvantage to the Change to Win idea was that it was not politically acceptable for Blagojevich to step down as Governor to take that position. In response, Blagojevich suggested the possibility of having his wife take the position now and then Blagojevich could take the national position later. Respondent told him that this was not a good idea. Blagojevich asked Respondent what the Change to Win position paid and asked whether he could get extra income if he sat on other boards. Respondent speculated that the position would pay no more than SEIU Official A's salary. (Tr. 398-402; Adm. Ex. 3 at 7-8; Ans. Par. 14; Adm. Exs. 8, 27).
On November 7, 2008, Respondent participated in a conference call with Blagojevich and Advisor A, in which Blagojevich solicited Advisor A's thoughts on the Change to Win idea. Respondent knew that Advisor A was an outside consultant whom Blagojevich trusted and upon whom Blagojevich relied for political advice. During the call, Blagojevich told Advisor A what had happened at the November 6, 2008 meeting with SEIU Official A. Blagojevich then directed Respondent to tell Advisor A about the Change to Win idea. Respondent explained the idea and Advisor A responded in a very positive way. Advisor A analogized the Change to Win deal to a three-way trade in baseball because it allowed President-elect Obama to stay out of Illinois politics because he would have a buffer and there would be no obvious quid pro quo for Senate Candidate B. Blagojevich told Advisor A that he was looking for $250,000-$300,000 in salary and also to sit on some boards. During the call, Respondent understood that Blagojevich was focused on obtaining money and maintaining his political viability in his analysis of whom to name to the Senate seat. After this call, Respondent and Blagojevich learned that SEIU Official A's salary was approximately $125,000 to $150,000 annually. Upon learning this,
Blagojevich was disappointed and wanted to know if he could be paid more than SEIU Official A. (Tr. 405-13; Adm. Ex. 3 at 8-9; Ans. Par. 15; Adm. Exs. 10, 27).
On or about November 12, 2008, the media reported that Senate Candidate B was going to work in the White House. Respondent participated in a number of conversations with Blagojevich about this development. Respondent believed that Senate Candidate B's decision to go to the White House caused Blagojevich to become anxious about losing leverage for what he might be able to ask of President-elect Obama with respect to a position for himself. At this point, Blagojevich began to express greater interest in the possibility that supporters of President-elect Obama would establish and fund a 501(c)(4) organization for the benefit of Blagojevich in exchange for a Senate seat appointment. Blagojevich asked Respondent to reach out to United States Congressman A about this possibility. Respondent believed that this was a quid pro quo and Respondent did not make any calls to further Blagojevich's request. Respondent concealed from Blagojevich that he did not follow Blagojevich's directive to contact United States Congressman A about the 501(c)(4). Blagojevich later told Respondent he had approached SEIU Official A about the 501(c )(4) idea and Blagojevich said that SEIU Official A was going to "run it up the flag pole," which Respondent took to mean he was going to check with representatives of President-elect Obama. (Tr. 415-19; Adm. Ex. 3 at 9; Ans. Par. 16; Adm. Exs. 12, 13, 14, 27; Tr. 78, 80-81).
At this time, Blagojevich also pressed Respondent to have an "off campus" discussion with Senate Candidate D. Respondent knew that this was a reference to Blagojevich's prior directive to Respondent to ask Senate Candidate D for Senate Candidate D's remaining campaign funds in exchange for appointing Senate Candidate D to the U. S. Senate seat. Sometime in the summer of 2008, Blagojevich told Respondent that if he appointed Senate
Candidate D to the vacant Senate seat, he would want and expect Senate Candidate D to give Blagojevich some or all of Senate Candidate D's campaign funds. Blagojevich raised this topic, which was often referred to as the "off-campus discussion" with Senate Candidate D, in several phone calls with Respondent. Respondent believed that Blagojevich was again raising this issue because Blagojevich believed that a deal with representatives of President-elect Obama involving Senate Candidate B was no longer a possibility. (Tr. 81-85, 419, 489-93; Adm. Ex. 3 at 9-10; Ans. Para. 16; Adm. Exs. 16, 27)
In response to Blagojevich's directives to him, on November 12, 2008, Respondent met with Senate Candidate D in his Springfield office. During the meeting, Respondent had a discussion with Senate Candidate D about his plans for his campaign funds that could not be converted to personal use. Respondent did not directly tell Senate Candidate D that Blagojevich was going to ask Senate Candidate D for his campaign funds. Based on what Respondent did say, however, Respondent believed that Senate Candidate D was on notice that, in relation to the Senate seat, Blagojevich was going to talk with Senate Candidate D about Senate Candidate D's campaign funds. (Tr. 84-85, 490-93; Adm. Ex. 3 at 10; Ans. Para. 16).
On or about December 4, 2008, Blagojevich told Respondent that Senate Candidate A, through a third-party, had offered to raise $1.5 million in campaign funds for Blagojevich in exchange for the U.S. Senate seat appointment. Respondent told Blagojevich that the offer to raise funds should not be a factor in his decision, although it was clear to Respondent that a large part of Blagojevich's consideration for appointing Senate Candidate A to the Senate was the offer of campaign funds. Respondent had previously advanced an argument in favor of Senate Candidate A, listing all of the favorable points of a Senate Candidate A appointment, in response to which Blagojevich had dismissed all of the points Respondent made and had refused to even
entertain the idea of appointing Senate Candidate A. Although Blagojevich was previously not willing to consider Senate Candidate A, Respondent believed that Blagojevich was now seriously considering Senate Candidate A because of the offer of campaign funds. (Tr. 85-88, 419-20; 493-94; Adm. Ex. 3 at 10-11; Ans. Par. 17; Adm. Exs. 21, 27).
In addition, Respondent was aware that, from time to time, in the course of considering options to fill the open Senate seat, Blagojevich considered appointing certain other individuals or appointing himself to the open Senate seat, often with personal benefits to himself as part of Blagojevich's consideration. For instance, with respect to appointing himself, Blagojevich expressed a variety of reasons for doing so, including to possibly avoid impeachment by the Illinois legislature, to obtain greater resources if he was indicted as a sitting Senator as opposed to a sitting governor, and to facilitate his wife's employment as a lobbyist. (Adm. Ex. 3 at 11).
In or about the spring of 2008, around the time that Blagojevich's wife passed her Series 7 examination which allowed her to sell financial securities, Blagojevich told Respondent that Blagojevich wanted to get Blagojevich's wife a job using her Series 7 license with an entity that did business with the State of Illinois. Respondent told Blagojevich that his wife could not work for an entity that did business with the State of Illinois. Despite this, Blagojevich asked Respondent to set up informational or networking meetings for his wife with financial institutions that had business with the State of Illinois in hopes that those businesses would assist in getting Blagojevich's wife a job. Respondent subsequently arranged a meeting between Blagojevich's wife and an official at a financial institution that had business with the State of Illinois. Respondent also spoke with an official at another financial institution that had business with the State of Illinois concerning that official helping Blagojevich's wife develop possible employment opportunities. When Blagojevich concluded that officials at these institutions had
been unhelpful in finding his wife a job, Blagojevich told Respondent that he did not want the institutions to receive further business from the State of Illinois. With respect to one of these institutions, Respondent told Blagojevich that, because the entity had business through the state pension funds, Blagojevich did not control those decisions. With respect to the other financial institution, despite Blagojevich's directive, Respondent did not prevent the institution from getting further business with the State and avoided telling Blagojevich when the institution was applying for State business so as to prevent Blagojevich from following through on his directive. (Tr. 88, 107-108, 115-22; Adm. Ex. 3 at 11-12)
Further, in November and December 2008, in response to Chicago Tribune editorials that had been critical of Blagojevich, Blagojevich directed Respondent to tell Tribune Financial Advisor that Blagojevich was going to withhold state financial support that would benefit the Tribune Company, unless the Tribune Owner fired people on the editorial board. In order to appease Blagojevich, Respondent told Blagojevich that he would and did relay this threat to Tribune Financial Advisor. Although Respondent did have a conversation with Tribune Financial Advisor about the negative editorials regarding Blagojevich, Respondent did not relay the threats as directed by Blagojevich. (Tr. 72-75; Adm. Ex. 3 at 12-13).
B. Analysis and Conclusions
Respondent is charged with violating Rule 8.4(a)(3) by committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer. The evidence established that Respondent pled guilty and was convicted of the federal offense of conspiracy to commit theft of programs receiving federal funds in violation of 18 United States Code, Sections 666(a)(1)(B) and 371. As already noted, Respondent's criminal conviction is conclusive proof of his guilt of this crime. It is also evident that Respondent's crime is one that involves moral
turpitude and reflects adversely on Respondent's honesty, trustworthiness and fitness as a lawyer. As the facts supporting Respondent's conviction demonstrate, he participated in a conspiracy with a sitting governor of the State of Illinois to solicit benefits for the governor and his family in exchange for his exercise of his statutory duty to appoint a United States Senator to fill a vacant Senate seat. This was essentially a conspiracy to solicit bribes. It is an intentional crime and a felony. Respondent was also himself a high-ranking government official at the time of his actions. There is no question that Respondent's involvement in criminal activity of this nature, which involved an egregious breach of the public trust, reflects adversely on his fitness as a lawyer and warrants discipline. See e.g., In re Fleischman, 135 Ill. 2d 488, 496, 553 N.E.2d 352 (1990); In re Alexander, 128 Ill. 2d 524, 539 N.E.2d 1260, 1264 (1989); In re Pappas, 92 Ill. 2d 243, 442 N.E.2d 142 (1982). In re Robinson, 08 CH 109, M.R. 24470 (May 18, 2011). Accordingly, we find that Respondent violated Rule 8.4(a)(3).
II. Respondent is charged with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Rules.
A. Admitted Facts and Evidence Considered
We considered the same evidence outlined in Section I, above.
B. Analysis and Conclusions
We also find that there was clear and convincing evidence Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). Both the nature of Respondent's offense and the facts surrounding his conviction support the conclusion that his actions involved dishonesty as well as deception. As Respondent admitted in his plea agreement, he participated in numerous behind-the-scenes discussions during which he strategized with Blagojevich and others regarding how Blagojevich could obtain various personal benefits for himself and his family in connection with fulfilling his obligation to fill the
vacant Senate seat. Such a conspiracy to solicit improper benefits for a public official in connection with the performance of official duties is undoubtedly dishonest. The clandestine nature of these discussions and dealings also demonstrate that Respondent's crime involved deception. At the very least, the conspiracy operated to deceive the public regarding the true basis upon which the Senate appointment would be made. Furthermore, since Respondent's offense was an intentional crime, there is no question that the intent element of Rule 8.4(a)(4) has been satisfied.
III. Respondent is charged with knowingly assisting another to violate the Illinois Rules of Professional conduct in violation of Rule 8.4(a)(2) of the Illinois Rules of Professional Conduct (1990).
A. Admitted Facts and Evidence Considered
We considered the evidence outlined in Section I, above.
B. Analysis and Conclusions
We also find it was established by clear and convincing evidence that Respondent violated Rule 8.4(a)(2) by knowingly assisting another to violate the Rules of Professional Conduct. Like Respondent, former governor Blagojevich was also an attorney at the time the events at issue here took place. Thus, Respondent not only breached his own ethical obligations through his participation in this criminal conspiracy, he also assisted Blagojevich in engaging in this same unethical conduct by strategizing with him and otherwise helping him devise his improper schemes. Such conduct is a violation of Rule 8.4(a)(2).
IV. Respondent is charged with engaging in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute.2
A. Admitted Facts and Evidence Considered
We considered the same evidence outlined in Section I, above.
B. Analysis and Conclusions
We also find that Respondent engaged in conduct which brought the legal profession into disrepute. Attorneys are held to a high standard of conduct and are expected to obey and uphold the law. See In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1(1985). Criminal conduct by an attorney demeans the legal profession, brings it into serious disrepute, and causes the public to doubt the integrity of the bar. See In re Andros, 64 Ill. 2d 419, 424, 356 N.E.2d 513 (1976). This is especially true in a case such as this one, where the criminal conduct involves public corruption by an attorney who is also a public official. In addition, the damage to the legal profession was particularly magnified in this case because of the high profile nature of Respondent's crime and the extensive media coverage it received.
EVIDENCE OFFERED IN AGGRAVATION AND MITIGATION
Respondent is 50 years old. He has been married since 1996 and he and his wife have three sons, ages 14, 13 and 9. Respondent's wife is a full-time homemaker, and Respondent is the sole source of income for his family. (Tr. 114-15, 511-12).
Respondent was born in the United States to Greek parents. His father drove a delivery truck and his mother worked in a factory and a beauty salon. Respondent obtained an Army scholarship to attend college and spent his first year at the United States Military Academy at West Point. When his father became ill, he transferred his scholarship to Northwestern University where he obtained his bachelor's degree in 1984 and became a commissioned officer. After obtaining an educational deferment of his five-year active duty commitment, Respondent completed law school in the night division at Loyola University, passed the bar, and was licensed to practice law in Illinois in 1987. (Tr. 112, 429-32).
In 1988, Respondent began his active duty service obligation at the Judge Advocate Army General School in Charlottesville, Virginia. This was followed by three years as an administrative law officer and special counsel in Fort Hood, Texas, and a year and a half stationed in Turkey as an intelligence oversight officer and command judge advocate. Respondent completed his service as chief of the administrative law division and trial counsel at Fort Sheridan, Illinois, and was honorably discharged in 1992. Respondent received several awards in recognition of his military service, including the Army Commendation Medal and two Meritorious Service Medals. (Tr. 432-38; Resp. Exs. 2, 3).
Respondent's first job after the military was with the Chicago Department of Aviation, where he monitored legislative matters impacting the City's airports. He later became special assistant to the commissioner where he worked on various special projects, including negotiation of a new airline/airport use agreement which led to the redevelopment of Midway Airport. After three years, Respondent was assigned by Mayor Daley to a position as deputy superintendent for the Bureau of Administrative Services at the Chicago Police Department (CPD). During his five years with the CPD, Respondent was involved in executing several initiatives on the Mayor's behalf, including revamping the hiring process and implementing a merit-based promotion system in order to achieve greater diversity in the work force. (Tr. 438-42, 519-21).
In 2000, Respondent returned to the Department of Aviation as first deputy commissioner, where his primary mission involved working on a program to build new runways at O'Hare Airport. Respondent worked with various parties in successfully planning, negotiating, and securing legislative approval for this project. Respondent was also involved in overseeing the Department's response to the September 11th terrorist attacks, including the
implementation of heightened security at the airports and management of diverted flights. (Tr. 443-44).
In 2004, Respondent was asked by Mayor Daley to serve as his budget director, where one of his primary assignments was to reform the City's troubled hired truck program. The hired truck program, which was intended to benefit primarily minority and disadvantaged businesses by providing them with opportunities to do work for the City, had become corrupted by larger entities that were using other businesses as fronts in order to obtain the work. Respondent's job was to return the program to its original purpose. He accomplished this by "throwing everybody out," making them reapply, and implementing better screening methods. Respondent's experience reforming the hired truck program enabled him to see firsthand the harm caused when a government program becomes corrupt. (Tr. 445-46, 521-22).
As budget director, Respondent was also involved in the Chicago Skyway project. This involved the City's efforts to lease the City-owned and operated toll road, which had been losing money for many years. Respondent oversaw the efforts to lease this asset on a long-term basis and finalized the transaction, which generated $1.83 billion for the City. (Tr. 447).
Respondent began working for then-governor Blagojevich in December 2005. Although Respondent had encountered Blagojevich at social and political events, he did not know him or have any relationship with him prior to taking the job. Respondent testified that he took this position because he thought it would be challenging and a tremendous experience. Although he initially took a reduced salary, over a period of three years, he eventually reached his previous salary. Respondent was earning $145,000 annually at the time he resigned. (Tr. 112-14, 449-50).
Respondent was chief operating officer for a brief period until he became chief of staff in early 2006. As chief of staff, Respondent was responsible for overseeing the day-to-day operation of the State government. He also answered questions and collected information for Blagojevich, and was involved in formulating and executing the State budget. Blagojevich also looked to Respondent to help improve the governor's relationships with various State agencies and others involved in State and City government. Respondent stated that he was "honored" to serve and appreciated the opportunity to manage such a large organization. (Tr. 112-13, 451-54).
Although Respondent described Blagojevich as a very caring person about matters he was passionate about, he said he also created a lot of conflict because his priorities were not very popular with members of the General Assembly or local officials. Because Blagojevich was not viewed favorably by many in government, he relied on Respondent to act as an ambassador on sensitive matters and handle negotiations with influential leaders. Although Respondent enjoyed these opportunities, it expanded his duties and responsibilities beyond those as chief of staff. (Tr. 454-55). In addition, in 2008, Blagojevich's deputy governor for most of his second term resigned her position. Sheila Nix had been one of Blagojevich's two primary policy advisors and one of the individuals Blagojevich spoke to most often each day about his various ideas. After she left, Respondent also began to fill that role and more and more of his time was occupied on the phone with Blagojevich. (Tr. 496-97).
Respondent testified that the subject of Blagojevich potentially appointing someone to fill the Senate seat was first mentioned "jokingly" in discussions with Blagojevich in January 2008, after then-Senator Obama won the Iowa caucuses. The discussion became more serious in the summer of 2008, after it became clear Obama would be the nominee for the Democratic Party. Respondent recalled one instance where Blagojevich asked him what he thought Blagojevich
could "get for the Senate seat." Respondent's off-the-cuff response was that Blagojevich could "make an ally or reward an ally." Blagojevich expressed disappointment and dropped the subject. At another discussion in October 2008, which included general counsel William Quinlan, Blagojevich said something about having a charitable benefactor make a substantial donation to his campaign fund in exchange for the Senate appointment. Respondent and Mr. Quinlan both told Blagojevich he could not exchange the Senate seat for money and advised him not to even joke about the matter. Blagojevich again dropped the subject. These early discussions were not recorded by the government as part of its criminal investigation. (Tr. 456-59, 463).
Beginning in early November 2008 and continuing until early December 2008, Respondent and Blagojevich had many additional discussions regarding the Senate seat appointment. Although some of these discussions were held in-person, many of them took place over the telephone. These telephone discussions, which were recorded by the government as part of its criminal investigation, formed the basis for Respondent's conviction in the criminal matter.3 (Tr. 382-84, 464-67, 495-96, 523; Adm. Exs. 4-17, 27).
Respondent testified that during this time, Blagojevich had become "obsessed" with the Senate seat matter and raised the subject in most of their daily telephone calls. Respondent knew when these discussions began that Blagojevich believed his political future was bleak and it was unlikely he would run for governor again. He also knew Blagojevich was concerned about his family's financial future. (Tr. 115-16, 132-33, 495-96, 523).
In one of the first of these recorded calls, Respondent and Blagojevich discussed their belief, based on political rumors, that President-elect Obama had a preference for a particular candidate to fill the Senate vacancy. Blagojevich indicated to Respondent that it was "good"
Obama had a preference for someone and asked, "Now, we should get something for that, couldn't I?" Respondent answered "Yes." (Tr. 126-29; Adm. Ex. 4).
Respondent and Blagojevich then went on to have a series of conversations regarding what Blagojevich could potentially obtain for himself in exchange for appointing the preferred candidate. During these conversations, Respondent helped Blagojevich strategize regarding what he thought Blagojevich could get for the Senate seat appointment and told him what he thought would and would not work. They also strategized regarding how to make certain requests and how to go about pursuing Blagojevich's interests. Among other things, they discussed various possible positions for Blagojevich, including a cabinet post, an ambassadorship, or a position with a private foundation. They also discussed what Blagojevich could expect to be paid. In one of these discussions, Respondent himself came up with the idea of Blagojevich obtaining a position with the "Change to Win" organization. During several of the calls, Respondent engages in what Blagojevich referred to as "war games," which involved "role playing" or acting out a conversation Blagojevich intended to have in the future about the matter. During some calls, Respondent strategized with Blagojevich regarding specific tactics they could use to increase Blagojevich's bargaining power with respect to the appointment, such as leaking the name of another candidate to a local gossip columnist so people would think Blagojevich was serious about appointing someone else. Respondent acknowledged that he knowingly participated in these conversations with the understanding Blagojevich was trying to get something for himself in exchange for the Senate seat appointment. (Tr. 129-36, 378-79, 384-420, 464-68; Adm. Exs. 4-17, 27).
In early November 2008, around the time these discussions began, Respondent also prepared a memo outlining a process Blagojevich could follow in making the Senate seat
appointment. According to Respondent, Blagojevich asked him to prepare something his press people could incorporate into "talking points" Blagojevich could use in making a public statement about the process. This "talking points" memo stated, among other things, that Blagojevich would follow a "thoughtful and deliberate process" in making the appointment. It also stated that Blagojevich had formed a "Senate search team" made up of key members of his administration to assist him in identifying suitable candidates. The memo listed criteria the search team would be looking for in potential candidates and included a statement expressing confidence that the process would lead to the selection of a person with the "skills, ability, and integrity" to "profoundly and faithfully serve the people of the Illinois." Blagojevich included much of what was in this "talking points" memo in a public statement he made regarding the matter on November 5, 2008. (Tr. 122-26, 136-38, 459-62; Adm. Ex. 4; Resp. Ex. 8).
Respondent admitted that certain aspects of Blagojevich's public statement were not accurate and that Blagojevich did not ultimately follow the process he described in the memo. He also acknowledged Blagojevich's statements did not accurately reflect the process that was already underway. Respondent testified that he did not know the memo was inaccurate when he drafted it and was not attempting to mislead anyone. (Tr. 138-41, 461-63, 527).
Although there were some ideas Respondent told Blagojevich he should not pursue and others he told Blagojevich he would pursue but did not, Respondent acknowledged he never went to authorities, never quit his job, and never told Blagojevich he would not help him. (Tr. 136, 379-80). On one of the calls Blagojevich refers to Respondent as the "Prince of Darkness." This was a nickname Blagojevich gave Respondent because he was "usually the dissenting voice in the room." Respondent admitted he was not afraid to stand up to Blagojevich. (Tr. 410).
Respondent testified that when he had these conversations with Blagojevich, he did not "give much thought to their legality." He explained that he and Blagojevich had discussed other political trades made by other political figures, and he did not think the cabinet appointment was "far afield from historical practice." Respondent testified while he found the notion of Blagojevich exchanging the Senate seat for money to be troubling and personally offensive, he thought the idea of Blagojevich trading the Senate seat for a job for himself was a "much greyer area," especially in light of the fact that Blagojevich could appoint himself to the seat. Respondent testified that based upon his experience in government, giving people jobs for political trades or benefits is not unusual or uncommon, as long as it is an "exempt position" under applicable law. Respondent stated that he knew exchanging the Senate seat for campaign contributions or having billionaires endow a non-profit for Blagojevich's personal benefit was wrong. Respondent admitted he might have been too cynical to recognize that exchanging the Senate seat for a cabinet position for Blagojevich was just as wrong. (Tr. 481-82, 523-27).
Respondent testified that he thought the Change to Win idea was "less offensive than some of the other ideas" and did not know it was illegal. Respondent noted that in one of these conversations he was asked to explain the Change to Win idea to various third parties, including several people he did not really know. Respondent testified that he would not have been speaking with strangers about a criminal conspiracy if he thought he was engaging in a crime. (Tr. 486-89, 524-26, Resp. Ex. 11).
Respondent's lawyer in the criminal case later explained to him that all the government needed to prove was that he intended to help Blagojevich trade one thing for another. Respondent acknowledged that under that standard, he is guilty. Respondent testified that he
was surprised when he learned what he was discussing with Blagojevich in these conversations was a crime. (Tr. 481-82, 527).
Respondent testified that he did not report these conversations regarding the Senate seat appointment to anyone because he "didn't think the conversations themselves were wrong." In addition, he stated that he believed all along Blagojevich intended to appoint himself to the vacancy and that the other plans discussed were not feasible and would never be consummated. With respect to why he did not leave the governor's office Respondent stated:
There was no reason to leave. I had?my belief at the time was I had a mission to assist him.
There were certain things that I was not willing to do.
The conversations I did engage in, some of them I should not have.
But at the time there was no compelling reason to leave.
I had?other than the general working conditions, I had planned on leaving in January of 2009, and I believed the circumstances of that departure would be his appointment of himself to the Senate seat because none of his other ideas would pan out.
(Tr. 485-86, 495). Although Respondent testified that he did not have any particular "exit strategy," he stated he had discussed leaving the governor's office with Mr. Quinlan and Ms. Nix, and they all planned to leave together. (Tr. 497-98).
Respondent also testified that he was reluctant to leave the governor's office during this time because he would have felt like he was "quitting" and he is "not a quitter." Respondent explained that the governor's office was "under siege" at the time from the federal investigations, the state legislature, and the media. Respondent did not feel it was an appropriate time to leave and did not believe it would bode well for him professionally if he did. Respondent testified he had also earned his share of enemies due to his close relationship with Blagojevich and did not necessarily have anywhere else to go. He also noted that he had recruited many
people to work in the office and convinced them to stay on despite the challenging times, and did not want to just "leave them behind." Respondent admitted that he stayed longer than he should have. (Tr. 497-98).
Respondent acknowledged that one of the reasons he did not push back more vigorously in response to concerns about what Blagojevich was doing was his concern over possibly losing his job. Since Respondent was the sole means of support for his family, he did not want to lose his job or leave before he had another job lined up. He was also concerned that others might suffer adverse consequences if he walked out on Blagojevich. This included individuals he had brought into the governor's office as well as his brother, who was employed by a related agency. (Tr. 527-29).
In late November 2008, while these Senate seat discussions were still taking place, Respondent began receiving a number of inquiries from interested parties regarding a racetrack bill passed by the legislature that was awaiting Blagojevich's signature. The bill was designed to resurrect an expired racetrack subsidy which was beneficial to the industry. On November 26, 2008, after making some e-mail inquiries, Respondent concluded that Blagojevich had no legitimate reason for holding up the bill. Later that same day, Respondent raised the matter in a telephone conversation with Blagojevich. Blagojevich indicated to Respondent that he was not doing anything "for a while" and wanted to "sit on it" until he sorted things out. (Tr. 421-24; Adm. Exs. 18, 22).
After this call, Respondent was concerned that Blagojevich was holding up the bill for some improper purpose. He asked Mr. Quinlan to approach Blagojevich about the reasons for the delay. Respondent testified he was suspicious that Blagojevich was pressuring someone in the racetrack industry to make contributions to his campaign fund and was delaying signing the
bill until that occurred. In a telephone call on December 2, 2008, Mr. Quinlan reported back to Respondent that he had raised the matter briefly with Blagojevich and confirmed it was what Respondent "feared." Respondent testified that Mr. Quinlan was confirming Blagojevich was holding up the bill for inappropriate reasons. (Tr. 424-29; Adm. Ex. 23).
Respondent was arrested by the FBI at his home early in the morning on December 9, 2008. Respondent testified that he initially felt "somewhat shocked but strangely calm." He believed that despite the challenges of the office, he had "always tried to act correctly and had nothing to fear." Respondent acknowledged that he "grew more anxious as the day went on." (Tr. 371-72, 499).
Immediately after his arrest, Respondent was taken to the Chicago office of the FBI. After signing a waiver, he was interviewed by two FBI agents. The agents informed Respondent from the start that they had recordings of some conversations between Respondent and Blagojevich. The agents initially questioned Respondent about the Chicago Tribune matter and a matter involving Wrigley Field and the sale of Chicago Cubs. Respondent answered those questions and provided information about these matters. When the agents moved on to the subject of the appointment of a Senate seat replacement, Respondent declined to discuss this matter with the agents at that time. Respondent told the agents he was not only the governor's chief of staff, but also a legal advisor with the title of "special counsel to the governor." He also stated that many of these conversations occurred in the presence of Mr. Quinlan, general counsel to Blagojevich and Respondent, and might be privileged. Respondent told the agents he was not sure where the line was drawn and felt uncomfortable speaking about the matter further. The agents brought in an assistant U.S. Attorney, who showed Respondent a case and explained to
him that privilege would not apply. Since Respondent was still unsure about the matter, he asked to stop the interview. (Tr. 371-77).
Respondent acknowledged that there were many conversations regarding the Senate seat replacement that were only between him and Blagojevich. He also acknowledged that he had only served as legal counsel for Blagojevich on one occasion in 2007 in an unrelated matter and had not acted as legal counsel in connection with the Senate seat issue. (Tr. 377-78).
Respondent was represented by attorney Terry A. Ekl throughout the criminal matter. Respondent did not meet with Mr. Ekl until the morning of his arrest, after he had already met with the FBI and terminated the interview. Mr. Ekl explained to Respondent the nature of the initial charges, which included both the Senate seat and Tribune matters. Respondent immediately told Mr. Ekl he wanted to cooperate and tell the government "everything" he knew. Mr. Ekl approached the government about the matter the next day. Approximately five days later, Respondent had the first of a series of meetings with prosecutors and federal agents. Although Mr. Ekl was initially present during these meetings, Respondent eventually began going in on his own. Respondent had over 30 meetings with the government. (Tr. 499-501).
Initially, before any plea negotiations began, the government wanted to "debrief" Respondent in order to learn as much as it could from him. Respondent had several meetings with the government along these lines, where he answered a whole range of questions. After several weeks, Mr. Ekl began discussions with the government regarding a plea agreement. One of the sticking points during the plea negotiations concerned whether Respondent would acknowledge he knew at the time what he was doing was wrong. Although Respondent now knows what he did was wrong, they went through some negotiations over this language. They eventually ended up with a plea agreement that included only one charge. The government
dropped the charge stemming from the Tribune matter after concluding it was incorrect about what it believed Respondent had done in connection with that matter. (Tr. 501-502).
As part of the plea agreement, Respondent agreed to cooperate with the government and provide testimony at Blagojevich's trials. After his initial guilty plea, Respondent also agreed to enter into a second plea agreement, at the government's request, which included a substituted charge. Pursuant to the terms of the plea agreement, Respondent's sentence was capped at no more than 35 months, provided he testified completely and truthfully. Respondent continued his cooperation after entering into the plea agreements. He later testified for five or six days at Blagojevich's first trial and five days at the second trial. Three years passed from the time of Respondent's arrest until Blagojevich's second trial. (Tr. 503-504, 508-509).
Within days of his arrest, Respondent sent a letter to the governor's office resigning his position as chief of staff. After his resignation, Respondent began looking for other work. Respondent understood his cooperation would last for months and entail many sessions, so he sought the kind of work that would enable him to fulfill his obligation to the government. He ended up taking a job on the night shift as a linesman apprentice for Divane Brothers, an electrical contracting company. Respondent had no prior experience in this field and took an entry level position so he could learn a new skill in light of his uncertain future. As of the time of this Hearing, Respondent was still attending lineman training school and had another half year left to finish the three-year program. He has also completed other training in connection with this job. Although he still works for Divane, he has moved into a business development role. (Tr. 504-508, 517-19; Resp. Exs. 4, 5, 9).
Respondent recently taught a seminar on airport development at the University of Illinois College of Urban Planning and Policy. He has also been asked to develop a curriculum for a
graduate course on airport planning and finance. Since his interim suspension, Respondent has continued to maintain his MCLE status. (Tr. 514-16).
Respondent and his family attend the Greek Orthodox Church and support their parish financially. Respondent is also involved in various activities with his sons, including scouting. Respondent and one of his sons were recently selected by their Boy Scout troop for induction into the Order of the Arrow, an honor society that recognizes their spirit of service. (Tr. 512-14; Resp. Ex. 6).
Although Respondent has not done much legal work since leaving the military, he values his law license and wants to regain it. His license is important to him because he worked hard for it and it is a way for him to support his family. He is also trying to demonstrate to his sons that if you make a mistake, "accept responsibility for it, and perhaps you'll be given a second chance." Since Respondent does not plan to return to public service, he also believes practicing law will allow him to continue to do meaningful work and make a greater contribution to his family and community. (Tr. 514-15).
Ms. Hamilton was licensed to practice law in Illinois in 1996. She has been an Assistant with the United States Attorney's Office since 2001 and currently serves as a Deputy Chief of Public Corruption and Organized Crime. Since 2007, Ms. Hamilton has been involved in the investigation and subsequent criminal proceedings involving former Illinois Governor Blagojevich, Respondent, and others. She was one of the prosecutors at both of Blagojevich's criminal trials. (Tr. 42-43).
Ms. Hamilton testified that Respondent agreed to cooperate with the government immediately after he was arrested on December 9, 2008, and began meeting with her and FBI
agents shortly after his initial court appearance. At that time, Respondent had no deal with the government. There was, however, an understanding that if Respondent fully and truthfully cooperated, the government would enter into a plea agreement which would include a recommendation to the sentencing judge that Respondent receive a reduction in his sentence based upon his cooperation. This is referred to as a "downward departure" from the sentencing guidelines. (Tr. 44, 48-51).
Ms. Hamilton testified that after Respondent's initial guilty plea in 2009, he agreed to plead guilty to a "second superseding indictment" in 2010. The second superseding indictment was brought because, after his initial plea, the United States Supreme Court agreed to hear a number of cases which called into question the continuing validity of the "honest services fraud" charge, which was the basis for his first plea. Because of the resulting uncertainty over the law, the government asked the grand jury to return a different charge against Respondent and Respondent agreed to plead guilty a second time. Although the criminal charges were different, the factual basis for both pleas was the same. (Tr. 55-57, 97).
Ms. Hamilton confirmed that the criminal charge to which Respondent ultimately pled guilty was conspiracy to solicit a bribe, which is an intentional crime and a felony. (Tr. 57-59). She further confirmed that the government did not have to charge Respondent with a crime, but did so because it believed he had committed a crime. (Tr. 103-104). She also testified that she spent hundreds of hours going over the audio tapes and transcripts in this case and believes Respondent always sounded serious and professional during his discussions with Blagojevich about selling the Senate seat. (Tr. 52-53).
According to the terms of Respondent's plea agreement, before factoring in his cooperation, Respondent was facing a potential sentence under applicable guidelines in the range
of 70 to 87 months in prison. Based upon his cooperation, the government agreed to recommend he receive a sentence of 50% of the low end of that range. Respondent was also allowed to ask for an even greater reduction in his sentence. The plea agreement also took into account that Respondent was a "minor participant in the criminal activity" and had "demonstrated a recognition and affirmative acceptance of responsibility for his criminal conduct." Ms. Hamilton testified that the recommendation in the plea agreement was premised on the assumption Respondent's cooperation would continue and he was not guaranteed anything until that was completed, including his truthful testimony at trial. (Tr. 51, 65, 89-90; Adm. Ex. 3 at 15-16, 17).
Ms. Hamilton testified that Respondent's cooperation was long and extensive, and placed enormous demands on his time. Respondent spent hundreds of hours listening to tapes, explaining context, and identifying individuals. After Respondent began working on the night shift as an apprentice electrician, he began coming in to meet with her either before his shift started or after it ended, which essentially amounted to working two jobs. She believes Respondent took his cooperation "very, very seriously." The only scheduling accommodations Respondent asked her to make related to commitments to his sons. (Tr. 59-61, 91-92, 98).
Respondent's cooperation also included testifying for several days at both of Blagojevich's criminal trials. Each of these appearances was preceded by several weeks of preparation. In addition, Respondent subjected himself to extensive media exposure and other difficulties after his arrest and during his cooperation. Despite these difficult circumstances, Ms. Hamilton testified that Respondent remained "responsible and credible and cooperative." (Tr. 96-97).
Ms. Hamilton described Respondent as "a critical witness" for the government, not only at the trials, but during the investigation. Because of Respondent's relationship with
Blagojevich, Respondent was in a unique position to explain various matters to the jury. The fact that Respondent was Blagojevich's chief of staff, admitted his conduct, and was willing to cooperate fully and truthfully was also beneficial to the government. Ms. Hamilton described Respondent as "very credible" and believes he was the "most important witness for the government's case against Mr. Blagojevich." (Tr. 59-60, 92-93).
Ms. Hamilton testified that Respondent was particularly credible because he was consistent throughout and did not withhold any information. She noted that when he initially began cooperating, the government did not play any of the recorded conversations for him, but just asked him questions about what had occurred. The information Respondent provided both before and after he heard the recordings was "virtually identical" and his "recall of details was extraordinary." Ms. Hamilton explained that, unlike many cooperating witnesses who have difficulty providing the "complete truth," Respondent was "very forthcoming." As a result, the government did not have any credibility issues with him when he testified at trial. (Tr. 60-63, 91-92, 97).
Ms. Hamilton testified that Respondent's credibility with the jury was also enhanced by the steps he took to rebuild his life after his arrest. She noted that Respondent "reinvented himself" professionally after his arrest and during his cooperation by taking a job as a laborer. The fact that Respondent was willing "to start over again," showed him to be "hard working, responsible, credible, all the things that are important as a government witness." (Tr. 97).
Ms. Hamilton testified that the importance of Respondent's testimony influenced the government to change its trial strategy at Blagojevich's second trial. At the first trial, the government presented the evidence to the jury regarding Blagojevich's actions in a chronological fashion. As a result, Respondent's testimony came in at the end of the case. When the
government retried the case, however, it changed the order of the evidence and used Respondent as their lead witness. Ms. Hamilton stated that the government made this change because Respondent was an extremely strong witness and his testimony was regarded as "pivotal." (Tr. 61, 64).
Ms. Hamilton acknowledged that there was one instance during Blagojevich's trial where Respondent was accused on cross-examination of not being truthful. This related to a statement Respondent made during the first 30 minutes of his initial interview with FBI agents, immediately after his arrest. Respondent admitted during cross-examination by Blagojevich's lawyer he had claimed something that was not true in an effort to terminate the interview. (Tr. 108-10).
Ms. Hamilton spoke at some length during Respondent's sentencing hearing before Judge Zagel regarding the extent and value of Respondent's cooperation in order to support the government's motion for a downward departure in the sentencing guidelines. At one point during the hearing, Judge Zagel asked her to comment on a letter that had been submitted by Respondent's former executive assistant regarding what it was like to work for Blagojevich. The letter described Blagojevich's calls to Respondent as "a little relentless" and stated that he was "extremely demanding" of Respondent's time, even during evening hours, weekends, and holidays. It also described Blagojevich as "very difficult to work with" and said that at times, he would basically "wear a person down." Ms. Hamilton confirmed that these observations were consistent with what she heard on the tapes and with what the government had learned from other witnesses. Ms. Hamilton also described to the court an example of this type of behavior, which involved a call Respondent fielded from Blagojevich the day after Thanksgiving in 2008. Respondent was in the process of hanging Christmas lights with his sons and told Blagojevich
this at the beginning of the call. Although Respondent's sons can be heard in the background, Blagojevich clearly did not care about what anyone else had going on and continued to talk to Respondent for about 45 minutes. (Tr. 64-65, 98-101; Adm. Ex. 24 ).
Judge Zagel sentenced Respondent to just ten days in prison and two years of supervised release. Ms. Hamilton testified that the downward departure was allowed, in part, because of Respondent's cooperation. Although Respondent's supervised release does not conclude until March 28, 2014, Respondent may be able to petition to reduce that time. (Tr. 65, 67-70).
Ms. Hamilton confirmed that while Respondent and Blagojevich were both convicted of conspiracy to commit solicitation of a bribe, Blagojevich was also convicted of additional crimes, including offenses related to an incident involving Children's Memorial Hospital, an episode involving the racetrack, a wire fraud charge, and a charge of lying to the FBI. Respondent was not convicted of any crime connected to those matters. (Tr. 101-103).
William J. Quinlan
Mr. Quinlan graduated from Georgetown University Law Center and was licensed to practice law in Illinois in 1995. He initially worked at a large law firm and later joined his father's law firm, Quinlan & Crisham. He remained at that firm until 2005, when he went to work for the State of Illinois as general counsel and counsel to the governor. Mr. Quinlan met Respondent a few months later, when Respondent came to work for the State, and they interacted on a daily basis in the course of their jobs. Mr. Quinlan remained with the State until December 31, 2008, when he returned to private practice. (Tr. 183-86).
Mr. Quinlan testified that it was very challenging at times working for Blagojevich. Most of Blagojevich's communications with staff were done by telephone and were not limited to the work day. Blagojevich expected staff to be available for him at all times by phone and made
frequent and repeated calls, often at unusual times. Mr. Quinlan testified it was difficult to get his other work done if you fielded all of his calls, so he eventually stopped returning Blagojevich's calls until the end of the day. Blagojevich also frequently had ideas he would talk about and then abandon. Blagojevich would consistently call numerous members of the administration, trying to see if different people had different opinions. Blagojevich threw out a lot of ideas, from the ridiculous to the ordinary, just to get people's reactions. Very few of these ideas, however, were followed-up on by staff and others. These factors impacted on how Mr. Quinlan responded to Blagojevich's ideas. (Tr. 196-99).
Mr. Quinlan recalled discussing the Senate seat appointment with Blagojevich in Respondent's presence and telling Blagojevich he could not do certain things with regard to that appointment. One incident occurred while Mr. Quinlan, Blagojevich and Respondent were at the campaign office prior to President Obama's election. Blagojevich was "musing about the Senate seat" and said something to the effect that if he named a certain local billionaire to the seat, he could get "three to five million" dollars. Mr. Quinlan was not sure what that money was to be used for, but thought it was for a charity, not campaign contributions. Mr. Quinlan told Blagojevich not to even joke about that because it could be misinterpreted. (Tr. 199-200, 210-12).
Mr. Quinlan was also present for other conversations, during which Blagojevich discussed appointing various individuals to the Senate. Some of the names mentioned were serious and some, such as various celebrities, were "ridiculous." None of these ideas involved campaign or other money, but many involved a political benefit to Blagojevich. Mr. Quinlan is also aware Blagojevich discussed getting a federal political appointment for himself in exchange for the position, but he does not believe anyone thought this idea was "real." (Tr. 213-15).
Mr. Quinlan testified regarding various communications he had around early December 2008, concerning the reasons behind Blagojevich's failure to sign certain legislation beneficial to the racetrack industry. Respondent had expressed concerns to Mr. Quinlan regarding the reasons Blagojevich had not yet signed the bill and asked Mr. Quinlan to raise the issue with Blagojevich. When Mr. Quinlan asked Blagojevich if he planned to sign the bill, Blagojevich suggested that he was waiting for certain parties to "honor a commitment" and then would sign the bill. On December 2, 2008, Respondent called Mr. Quinlan and they discussed the issue briefly in a recorded conversation. When Respondent asked whether Blagojevich had expressed a reason for the delay in signing the bill, Mr. Quinlan confirmed that it was what Respondent had "feared." (Adm. Ex. 23; Tr. 535-39, 549, 562-66).
Shortly thereafter, Mr. Quinlan reached out to Blagojevich's criminal lawyer and suggested he contact Blagojevich to discuss these concerns about the racetrack bill. Mr. Quinlan testified that his primary concern was that Blagojevich could not choose not to sign legislation based upon these other "obligations." Mr. Quinlan raised the issue with Blagojevich's criminal attorney because he thought it would be more appropriate and effective for him to address the matter with Blagojevich. Mr. Quinlan also told Respondent in a subsequent conversation he would follow-up on the matter and handle it. (Tr. 539-41).
Mr. Quinlan testified that when he was initially approached by Respondent about the matter, he knew Respondent had concerns that Blagojevich did not have legitimate "governmental reasons" for holding off on signing the bill. They were not necessarily concerned Blagojevich was doing something illegal. After his discussion with Blagojevich, however, Mr. Quinlan became concerned that Blagojevich was acting illegally by not signing the bill because he was expecting campaign contributions. Although Mr. Quinlan was not sure he relayed these
concerns to Respondent in their brief telephone conversation on December 2, 2008, he discussed them with Respondent later. (Tr. 549-54).
Mr. Quinlan testified that although he did not leave his job with the governor until after Blagojevich and Respondent were arrested, he had been planning to leave for some time and was in the process of interviewing for other jobs. He also stated that he and Respondent had been discussing leaving since June 2008 and had formed a "pact," along with Shelia Nix, that they would all three leave together. Ms. Nix, who left in October 2008, was the first to leave. (Tr. 201-204, 555).
Mr. Quinlan is aware Respondent pled guilty to a federal offense and is familiar with the conduct supporting that conviction. He is also familiar with Respondent's reputation. Mr. Quinlan testified that he has a "very strong opinion" of Respondent's "character, his truthfulness, his skills, his ability, his talent and what someone like him means to the legal profession." He believes Respondent is a "very straightforward and honorable human being" and a "very talented individual," who took numerous positions that were in the best interest of the State of Illinois but not the best interest of Respondent. Although he witnessed Respondent make some choices that potentially hurt him personally, he never saw him make a decision that benefitted himself to the detriment of the State. (Tr. 205-209).
Mr. Quinlan acknowledged that he worked closely with Respondent and considers him a "good friend." He also acknowledged he was never charged with a crime arising out of the Senate seat matter, the Tribune matter, the racetrack bill, or any of Blagojevich's other dealings. Mr. Quinlan vehemently denied, however, that he was relieved Respondent had taken a "hit" for him. He further stated that he was testifying on Respondent's behalf because he believes
Respondent is a "standup person" and a "very smart individual," who should be able to practice law. (Tr. 554-55).
Mr. Quinlan acknowledged there was extensive media coverage of the events involving Blagojevich and Respondent, who were both lawyers at the time. He also agreed that this kind of publicity does not portray the legal profession or Illinois lawyers "in the best light." (Tr. 556-57).
Mr. Zoufal has been licensed to practice law in Illinois since 1986. After working at private law firms for several years, he spent the bulk of his legal career employed by various governmental entities. Mr. Zoufal left the public sector in 2007 and currently works as a consultant for a technology firm. (Tr. 142-44).
Mr. Zoufal met Respondent in 1995 when he was appointed general counsel of the CPD. He worked closely with Respondent on a number of projects, including an initiative to revamp the department's testing and promotional policies. Mr. Zoufal testified that Respondent was instrumental in devising a merit selection system for promotions and implementing other changes, which enabled the department to obtain greater diversity than the existing protocols allowed. Respondent was also instrumental in helping secure the passage of an ordinance which allowed City employees who were deployed into military service to continue family health insurance benefits. This matter was important to Mr. Zoufal, as well as other City employees, who were deployed overseas while they were working for the City. Mr. Zoufal also later worked with Respondent at the Department of Aviation, where Respondent took the lead on a project to upgrade the air passenger baggage screening system to comply with the requirements of the Air Transportation Security Act of 2001. (Tr. 144-55).
Mr. Zoufal testified that in addition to working together, he and Respondent are also friends and see each other socially. He described an incident that occurred around Thanksgiving 2008, shortly before Respondent's arrest, while he and Respondent were out shopping together. Respondent was continually being interrupted by telephone calls from the governor related to his work. When they met later that night for dinner with their families, Mr. Zoufal described Respondent as looking "unusually worn out" and "exhausted." When he inquired about this, Respondent remarked that the "Senate thing" was going to "kill" him. Respondent also told him he thought they were wasting their time because he believed Blagojevich was going to name himself to the Senate. Respondent said that if this occurred, Blagojevich would go off to Washington and Respondent would "finally be free." Mr. Zoufal testified it was clear to him the job had been wearing on Respondent. Respondent had also told him the previous summer he was looking around and trying to get out of the governor's office. (Tr. 157-61).
Based upon their personal and professional relationship, Mr. Zoufal is familiar with Respondent's character and believes he has a reputation as a forthright, truthful and honest person, as well as a "trustworthy, honorable and hardworking public servant." Mr. Zoufal never saw Respondent make a decision or take an action intended to benefit himself personally to the detriment of his government employer. Mr. Zoufal also believes Respondent is a "competent administrator" and a "dedicated and committed public servant," who is interested in doing the "right thing." Mr. Zoufal agreed that Respondent could also be described by some as a "tough" and "ruthless" public administrator, who could not be "pushed around." (Tr. 156, 162-68).
Mr. Schmidt graduated from Harvard Law School and is licensed to practice law in Illinois. Although he is currently in private practice at the Mayer Brown law firm, he spent a
number of years of his career in public service. He served as Richard M. Daley's first chief of staff when he was elected Mayor of Chicago in 1989. In 1993, when President Clinton was elected, he served as Ambassador and Chief United States Negotiator for the World Trade Talks in Geneva. When those talks ended in 1994, he became Associate Attorney General, which is the third ranking position in the U. S. Justice Department. He remained in that position throughout President Clinton's first term. Mr. Schmidt has also served as President of the Chicago Council of Lawyers and Chairman of Citizens for Court Reform, an organization involved in improving the Illinois court system. (Tr. 169-71).
Mr. Schmidt first met Respondent when Respondent was working for Mayor Daley on the O'Hare Airport Expansion Project. Although Mr. Schmidt was in private practice and was not directly involved in the project, he was a friend and advisor to Mayor Daley and knew those who were involved. Mr. Schmidt testified that this was an "enormously complicated" project, which required obtaining support from the airline industry as well as governmental organizations at the state, federal and local levels. The project was Mayor Daley's top priority and he relied on Respondent as the key person in putting it all together. (Tr. 171-73).
Mr. Schmidt got to know Respondent better after Respondent was asked by Mayor Daley to represent the City in the proposed privatization of the Chicago Skyway. This was also an enormously complicated transaction involving the privatization of a major piece of infrastructure, which had never before been done in the United States. The entire process took two and a half years and generated a $1.83 billion payment to the City. Respondent was the key person at the City responsible for coordinating the project and finalizing the deal. Mr. Schmidt believes Respondent contributed extensively to the outcome and does not believe the deal would have happened without Respondent's involvement. (Tr. 173-76, 181).
Based upon his experiences with Respondent and his discussions with others, Mr. Schmidt believes Respondent's reputation for truthfulness and integrity is "extremely high." He also believes Respondent has an "extraordinarily high" work ethic, energy level, and commitment to getting things done. He agreed Respondent is very intelligent and understands complicated issues. He would not characterize Respondent as ruthless, but rather "intense" in his determination to get something accomplished. During the time he worked with Respondent, Mr. Schmidt never saw him do anything or make any decision that benefitted himself to the detriment of the City of Chicago. (Tr. 179-80, 182).
Mr. Milner is an Illinois State Senator and was previously a State Representative. Prior to that, he spent many years as chief of police for the City of Elmhurst Police Department. He has served as president of the Illinois Association of Chiefs of Police and has had leadership roles in other law enforcement organizations during his career. (Tr. 216-217).
Mr. Milner met Respondent in 1995 while Respondent was working for the CPD. Mr. Milner was chairman of a legislative committee and worked with Respondent on a project to facilitate data sharing by the CPD with other law enforcement agencies. Respondent was "good to work with" and someone you could "count on." They got along so well, they remained in contact and became friends. (Tr. 217-18).
Mr. Milner was a spokesperson on the floor of the Illinois General Assembly in support of the O'Hare Modernization Plan, which Respondent was very instrumental in developing. As a State Senator, he also worked with Respondent on a number occasions after Respondent became Blagojevich's chief of staff. Mr. Milner believes Respondent is a "man of high integrity" and "a
man of character." Respondent's reputation among those who knew him in the General Assembly was as someone you could count on and someone you could trust. (Tr. 218-22).
Mr. Milner recalled seeing Respondent at a social event shortly before his arrest. Respondent's cell phone kept ringing and he had to keep getting up to answer it. Mr. Milner asked Respondent who was calling and Respondent told him it was Blagojevich. Mr. Milner described Blagojevich's calls to Respondent as "nonstop." Mr. Milner testified that Respondent "looked tired" and "appeared to be worn down by this guy." (Tr. 223-24).
Mr. Milner is aware Respondent was convicted of a felony and is generally familiar with the conduct that led to his conviction. As a State Senator during the impeachment trial of Blagojevich, he listened to many of the tapes and reviewed other evidence in the case. Mr. Milner also has some expertise in body language and interpersonal communication, including tone of voice. After listening to the tapes, it was his impression Respondent was expressing sarcasm in his responses to Blagojevich and that there was "no way" Respondent was going to do what was being suggested. Mr. Milner could not identify which tapes he heard while in the General Assembly. (Tr. 224-28).
Mr. Milner testified he still considers Respondent his close personal friend and believes what happened to him was a "true aberration" and involved "extraordinary circumstances." He also believes Respondent's reputation for truth and integrity is "beyond reproach." He agreed Respondent is extremely smart and also described him as a leader who is not an "easy guy to push around." (Tr. 226, 228-29).
Ms. Ronen was elected to the Illinois House of Representatives in 1992 and to the Illinois Senate in 2000. Although she did know Respondent personally until he came to work in the
governor's office, she knew of him by reputation prior to this because she had worked in City government. Ms. Ronen testified Respondent had a very good reputation and was known as "honest" and as a "straight-shooter." He was also known for getting things done. (Tr. 230-32, 238).
In 2008, Ms. Ronen left the Senate to take a job with the governor's office as a senior advisor. Ms. Ronen had known Blagojevich for many years prior to this. They had both been elected to the Illinois House at the same time and subsequently "became really good friends." She ran Blagojevich's Congressional campaign in 1996, helped with both of his campaigns for governor, and was part of his "kitchen cabinet" from 2005 to 2008. Ms. Ronen testified that Respondent was instrumental in bringing her into the governor's office in 2008. Her first day on the job, Respondent told her they needed help managing the governor and hoped she would be able to help in this regard. (Tr. 230-34, 239).
Ms. Ronen only stayed in this position for two months. She left because Blagojevich was "very difficult to work for" and she found it "untenable" to remain there. Ms. Ronen testified Blagojevich was very distracted and did not really focus on the task of running the government. In addition, he was not easy to deal with if you did not agree with him. Since she often disagreed with him about policies, she left. Ms. Ronen has spent her career in politics and has had policy disagreements with others, but the situation with Blagojevich was different. She said she was "horrified" by what she saw of Blagojevich while working for him on a daily basis and discovered he was not the person she thought he was. She described Blagojevich's actions as "beyond anything I have ever seen in anybody in public life." (Tr. 234, 239-42).
During the time Ms. Ronen was part of Blagojevich's kitchen cabinet and while she was part of the administration, she was able to observe how Respondent spent his time as chief of
staff. Ms. Ronen testified that Blagojevich was distracted with his own personal priorities during this time and Respondent essentially "ran the State." (Tr. 236-37).
Ms. Ronen is aware that Respondent is a convicted felon and is generally familiar with the conduct that led to his conviction. Her opinion of Respondent's character for truth and integrity is "very high." She has never seen Respondent take any action that benefitted himself personally to the detriment of the State of Illinois. (Tr. 237-39).
Clayton Harris, III
Mr. Harris is a graduate of Howard University Law School. He spent four years as a Cook County Assistant State's Attorney and then held various positions in state and local government, including assistant to Mayor Daley. He first met Respondent when he was on Mayor Daley's staff and they were working on passage of legislation for the O'Hare Modernization Project. He accompanied Respondent to a particularly contentious meeting with a group of state legislators regarding the project and was impressed by Respondent's handling of the matter. (Tr. 244-48).
Respondent later called Mr. Harris from the governor's office and asked him to become chief of staff at the Illinois Department of Transportation. Respondent also hired Mr. Harris to work under his supervision as deputy chief of staff to the governor. Mr. Harris testified that it was not easy to work for Respondent because he is "very, very demanding." He also found Respondent to be diligent and very bright. He described Respondent as a forceful person who is capable of standing his ground. He believes Respondent knows right from wrong and, if possible, would stand up against something he knew was wrong. (Tr. 244, 248, 250-51, 254-55).
Mr. Harris is aware of Respondent's felony conviction and is familiar with the factual basis. Based upon his experiences working with Respondent and what he has heard about him
from others, Mr. Harris has the "highest" opinion of Respondent's character for integrity and truthfulness. Respondent has also discussed his reasons for pleading guilty with Mr. Harris. Respondent indicated to him it was a matter of integrity and his need to show his sons he was a stand-up guy. (Tr. 251-52, 256-57).
Ms. O'Donnell is a registered nurse and also has a law license. She is currently Bureau Chief of Human Resources for Cook County government. She previously worked for the State of Illinois as director of Central Management Services (CMS). CMS is an administrative agency responsible for handling personnel and labor matters for the State, including approximately 10 billion dollars in procurements. Ms. O'Donnell met Respondent when she began working for the State in 2006. She interacted with him frequently and sought his counsel regarding various matters. She discussed procurement decisions with Respondent, and he never tried to tell her where she should send a contract. She also discussed personnel issues with Respondent, including violations of hiring rules and regulations concerning patronage in the governor's office. Respondent always told her to do what was right for the State and never asked her to do anything to protect him. (Tr. 258-62).
Ms. O'Donnell is aware Respondent has been convicted of a federal felony. While she is somewhat familiar with the factual basis for the conviction, she has not discussed the facts with Respondent in any detail. Based upon her personal experiences with Respondent and what she has heard from others, Ms. O'Donnell is of the opinion Respondent has a "tremendous amount of integrity and a tremendous amount of character." Respondent never tried to influence her decisions regarding hiring or awarding contracts and she never saw him make a decision that benefitted himself personally to the detriment of the State. (Tr. 262-64).
Ms. O'Donnell acknowledged she considers Respondent a friend and offered to testify on his behalf in the criminal matter. She also works with Respondent's counsel on a regular basis in her current job. (Tr. 263-67).
Mr. Volpe has been in public service since 1995 and currently serves as the Village Manager of Elmwood Park. He previously worked in various capacities for the City of Chicago, including chief of staff to Mayor Richard M. Daley. He met Respondent while he was working as deputy of finance at the Chicago Department of Aviation. After Respondent was appointed budget director, he asked Mr. Volpe to join him in the budget office as first deputy. One of Respondent's accomplishments as budget director involved reforming the hired truck program, which had been plagued by scandal and abuse. Respondent was also the lead person on the Chicago Skyway lease project, which was the first transaction of its kind in the country involving the long-term lease of a municipal asset. Mr. Volpe testified that Respondent handled the project "brilliantly," by ensuring the integrity of the bidding process and showing "extreme leadership" and discipline regarding the use of the resulting funds. (Tr. 267-74, 276).
Mr. Volpe is aware that Respondent has been convicted of a federal felony and is generally familiar with the conduct involved. Based upon his experiences and what he has heard from others about Respondent's character, he is of the opinion Respondent is "second to none when it comes to honesty and integrity and commitment to the welfare of the public." Mr. Volpe has never witnessed Respondent act with any self-interest. He also believes Respondent is politically astute and understands the importance of integrity in the public process. (Tr. 274-77).
Nicholas G. Grapsas
Mr. Grapsas attended law school with Respondent at Loyola University Chicago and they remain close friends. He began his career in private practice before taking a position at the Cook County State's Attorney's Office. He then worked for a time at the law firm of Quinlan & Crisham, before establishing his own practice since 2008. Mr. Grapsas is also in his second term as Illinois Public Administrator for Cook County. The Public Administrator is appointed under the Probate Act to administer certain estates. Mr. Grapsas obtained this position in 2008 when his predecessor resigned and Respondent asked him to take over and clean up the office. He has subsequently been reappointed to this position by Governor Quinn. (Tr. 277-82).
Mr. Grapsas is aware Respondent has been convicted of a federal felony. He has also discussed the facts surrounding the conviction with Respondent and has reviewed the pleading in the criminal case. Based upon his personal experiences and what he has heard from others, Mr. Grapsas is of the opinion Respondent's character for truth and integrity is "impeccable." He has never witnessed Respondent make a decision or take an action to benefit himself personally over the interests of his governmental employer. Notwithstanding the criminal matter, Mr. Grapsas would still consider practicing law with Respondent and has offered him the use an office in his firm if he regains his law license. (Tr. 282-83, 285, 287).
The Honorable William Haddad
Judge Haddad is currently a judge in the law division of the Circuit Court of Cook County. Before being elevated to the bench in 2003, he worked in the Cook County State's Attorney's Office and spent many years in private practice. Judge Haddad is past president of the West Suburban Bar Association and founder and first president of both the Arab-American Bar Association of Illinois and Suburban Bar Association of Cook County. (Tr. 288-89).
Judge Haddad first met Respondent in 1987 when he was handling a high profile case involving the denial of a law school graduate admission to the Illinois Bar. See In re Loss, 119, Ill. 2d 186, 518 N.E.2d 981 (1987). Respondent was in law school at the time and volunteered to help Judge Haddad with an appeal of the Illinois Supreme Court's decision to the United States Supreme Court. Judge Haddad believes Respondent demonstrated character in agreeing to get involved in this sensitive matter. Judge Haddad has remained in contact with Respondent in the years since they worked on this case. In 2005, Respondent helped him with a project designed to provide assistance to Lebanese-Americans who were seeking asylum in the United States. (Tr. 289-93, 296-300).
Judge Haddad is aware that Respondent has been convicted of a federal felony. Although he is not familiar with the facts apart from what he has read in the newspapers, he is aware Respondent was charged, surrendered his law license, pled guilty, and cooperated with the government. He understands Respondent made an error, but believes he has owned up to it and has accepted responsibility. Based upon his experiences as well as what he has heard from others, Judge Haddad is of the opinion Respondent possesses "high integrity, great character and a principled loyalty to people who work about him." Although he believes Respondent's loyalty may have led him to cross the line with regard to certain conduct, this has not diminished his opinion of Respondent. In terms of the lawyers who come before him, Judge Haddad believes Respondent falls into the category of attorneys who are ethical, credible, loyal, and honest. (Tr. 293-96, 300-303).
Mr. Ellis is the lawyer who conducted Blagojevich's impeachment hearing. If called as a witness in this matter, Mr. Ellis would testify that four tapes were played during the
impeachment hearing and none of them contained conversations between Blagojevich and Respondent. (Tr. 568).
Respondent has not been previously disciplined. (Tr. 599).
Having found that Respondent engaged in misconduct, we must determine the appropriate discipline. In determining our sanction recommendation, we consider the purpose of the disciplinary system, which is not to punish the individual respondent, but "to protect the public, to maintain the integrity of the profession, and to protect the administration of justice from reproach." In re Gorecki, 208 Ill. 2d 350, 360, 802 N.E.2d 1194 (2003). We also consider the nature and seriousness of the misconduct, the aggravating and mitigating factors, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. Gorecki, 208 Ill. 2d at 360-61. In addition, while each case "is unique and must be resolved in light of its own facts and circumstances," predictability and fairness require that sanctions imposed be consistent with those imposed in cases involving comparable misconduct. In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994).
In this case, while we are not permitted to go behind Respondent's conviction and re-analyze the evidence presented in the criminal case, Respondent's actual conduct and the circumstances surrounding his crime are relevant in determining the appropriate discipline. See Ill. Sup. Ct. R. 761(f); In re Ciardelli, 118 Ill. 2d 233, 239-41, 514 N.E.2d 1006 (1987); In re Gold, 77 Ill. 2d 224, 226, 396 N.E.2d 25 (1979). This is because an attorney is disciplined on the basis of his or her conduct, not merely because of a conviction. In re Rolley, 121 Ill. 2d 222,
233, 520 N.E.2d 302 (1988); Ciardelli, 118 Ill. 2d at 239-41. Therefore, we consider the circumstances surrounding Respondent's conviction, along with other evidence offered in mitigation and aggravation, in determining an appropriate sanction.
The nature of the underlying misconduct in this case, which involved corruption at the highest levels of State government, was clearly extremely serious. Respondent knowingly participated in a criminal conspiracy with the sitting governor of Illinois, the highest ranking public official in the State. The object of that conspiracy involved the corruption of the process for appointing a United States Senator through the solicitation of improper benefits, which essentially amounted to bribes. Respondent's conduct was not only unethical, it was criminal, as established by his subsequent federal felony conviction. As the Court has noted, an attorney's participation in such a serious offense, which involves public corruption and bribery of a public official, is "particularly reprehensible." See In re Alexander, 128 Ill. 2d 524, 535, 539 N.E.2d 1260 (1989); In re Gottlieb, 109 Ill. 2d 267, 270, 486 N.E.2d 921(1985).
Although Respondent's wrongdoing occurred over a relatively brief period of time, it did not involve an isolated incident or momentary lapse in judgment. The evidence established that Respondent participated in numerous conversations over the course of about a month during which these various improper schemes and ideas were repeatedly discussed. Thus, he had ample time to reflect on the matter and to contemplate the implications of what was being proposed. See In re Porcelli, 77 Ill. 2d 473, 479, 397 N.E.2d 830 (1979). Moreover, Respondent did not voluntarily withdraw from the conspiracy, cease his participation, or report the matter to authorities. Instead, he continued to participate in the improper discussions and strategy sessions, essentially right up until the time of his arrest. Compare In re Goodman, 93 CH 492,
M.R. 11497 (Sept. 29, 1995) (Review Bd. at 13) (citing attorney's voluntary cessation of illegal activity prior to law enforcement's involvement as mitigating factor).
It is also clear from the evidence presented, especially the audio tapes of the conversations which were played during the disciplinary hearing, that Respondent was a willing participant in these discussions. Respondent can be heard on the tapes strategizing with the former governor and offering his own ideas and suggestions regarding how Blagojevich can best accomplish his improper objectives. Although Respondent opposed some ideas and failed to follow through on others, he did not voice any real concerns regarding the underlying premise of many of these discussions, which was that Blagojevich could use the appointment to obtain a job for himself after he left the Governor's office. To the contrary, the idea to secure Blagojevich a position with the Change to Win organization was initially suggested by Respondent. It is also clear from the nature and tone of these conversations, as well as the surrounding circumstances, that they were not merely idle chatter but serious discussions regarding the use of the Senate seat appointment as a way to secure Blagojevich's financial future.
Respondent's misconduct is also aggravated by several factors. First, as the governor's chief of staff, Respondent was himself a high-ranking public official at the time his actions took place. Therefore, he not only violated the law he also breached the public trust. See In re Sims, 144 Ill. 2d 323, 325, 579 N.E.2d 865 (1991); In re Armentrout, 99 Ill. 2d 242, 255-56, 457 N.E.2d 1262 (1983). In addition, we note the harm caused by Respondent's actions, particularly in light of the notoriety of the matter and the media attention the case received. In re Saladino, 71 Ill. 2d 263, 276, 375 N.E.2d 102 (1978). Even though the plans to sell the Senate seat did not reach fruition, the existence of the conspiracy and resulting criminal proceedings undoubtedly diminished the public's confidence and trust in government. As the Court has noted, bribery of
public officials is a serious offense which undermines the integrity of our system of government. See Alexander, 128 Ill. 2d at 535. In addition, because Respondent is a lawyer his involvement in the scheme also necessarily brought the legal profession into disrepute. See Gorecki, 208 Ill. 2d at 370; In re Rosenthal, 73 Ill. 2d 46, 56, 382 N.E.2d 257 (1978).
Although Respondent's misconduct was undeniably serious, there was also extensive mitigation in this case. Respondent's misconduct is substantially mitigated by his acknowledgement of his wrongdoing and acceptance of responsibility for his actions, which is evidenced by his guilty plea and extensive cooperation in the criminal matter. See In re Cetwinski, 143 Ill. 2d 396, 406, 574 N.E.2d 645 (1991); In re Robinson, 08 CH 109, M.R. 24470 (May 18, 2011).
The evidence established that Respondent agreed to cooperate with the government almost immediately after his arrest. It was undisputed that his cooperation was extensive, time-consuming, and extremely valuable to the government in its investigation and prosecution. Respondent met with the government more than 30 times, both before and after he negotiated a plea agreement, to answer questions and provide information. Throughout this time, he was honest and forthcoming with regard to the information he provided. Respondent also continued to take responsibility for his actions by agreeing to plead guilty not only once, but twice. He also testified at length at both of Blagojevich's criminal trials. His cooperation involved hundreds of hours of his time and extended over a period of three years from his arrest to the conclusion of the second criminal trial. Respondent also agreed to postpone his own sentencing until his cooperation was complete and the criminal trials were concluded.
In this regard, we give particular weight to the extensive testimony of Ms. Hamilton, one of the prosecutors in the case, regarding the nature, extent and importance of Respondent's
cooperation. We also give weight to the conclusions reached by Judge Zagel in the criminal matter, which are reflected in his sentencing of Respondent. Although Respondent faced a potential sentence of up to 35 months imprisonment under the terms of his plea agreement, Judge Zagel imposed a minimal prison sentence of just 10 days. Judge Zagel, who also presided over the criminal proceedings against Blagojevich, was clearly very familiar with all of the facts and circumstances involved in this case. The relatively lenient sentence imposed by Judge Zagel is a reflection of the value of Respondent's cooperation as well as the other significant mitigating facts and circumstances present in the case.
We also note in mitigation that while Respondent clearly participated in the illegal activity, he was not the instigator or the primary intended beneficiary of the scheme. See, e.g., In re Chandler, 161 Ill. 2d at 475 (noting significance of whether respondent was principal architect of fraudulent scheme); In re Reagan, 112 Ill. 2d 511, 516, 493 N.E.2d 1080 (1986) (fact that respondent profited very little from scheme that led to mail fraud conviction considered in mitigation). The evidence showed that Blagojevich initiated the scheme for his own benefit and continually pursued the idea with Respondent and others. This conclusion is supported by the language in Respondent's plea agreement, which categorized Respondent as a "minor participant in the criminal activity" for purposes of sentencing. (Adm. Ex. 3 at 15).
We also note, however, that while Respondent did not stand to profit directly from the scheme, he benefited indirectly from his participation in the conspiracy because it enabled him to keep his job. He also acknowledged he was concerned about the job security of his brother as well as others he had brought into the governor's office. Thus, we cannot completely discount any benefit to Respondent in determining an appropriate sanction.
Although Respondent also claimed he did not know at the time what he was doing was wrong or illegal, we decline to consider this a mitigating factor. It was clear from all of the evidence presented, especially Respondent's own character witnesses, that he is an extremely smart and politically astute individual who had extensive experience working in government. He also had a specific history working with Blagojevich, which clearly created awareness on his part of the former governor's propensity to propose or pursue improper or illegal activity. This is evident from Blagojevich's repeated requests that Respondent use the power of the governor's office for improper purposes, such as finding a job for his wife and silencing his critics in the media. The episode involving the racetrack bill also provides a particularly glaring example of this type of behavior. The evidence showed that Respondent suspected Blagojevich was doing something illegal by holding up the bill until he received some promised political contributions from one of the bill's beneficiaries. Respondent later received confirmation of this from Mr. Quinlan, who told Respondent it was what Respondent had "feared." Thus, Respondent was well aware that Blagojevich was not above resorting to improper means in order to obtain some benefit for himself. In light of Respondent's background and experience, his particular history with Blagojevich, and the nature of the scheme itself, we believe Respondent knew, or should have known, that what he was doing was wrong.
We also consider in mitigation Respondent's lack of prior discipline, the evidence of his good character and reputation, and his significant history of public service. See In re Witt, 145 Ill. 2d 380, 403, 583 N.E.2d 526 (1991) (considering lack of prior discipline as a mitigating factor); In re Lunardi, 127 Ill. 2d 413, 423, 537 N.E.2d 767 (1989) (considering positive character testimony in mitigation); In re Forgue, 2009PR0071 (Apr. 13, 2010) (citing respondent's long history of public service in mitigation). Respondent was admitted to the bar in
1987 and has not been previously disciplined. He also presented an impressive array of character witnesses, including a Judge as well as various lawyers and non-lawyers, who uniformly testified that he is a person of great personal integrity and is generally held in high regard. Most of these character witnesses were people who had worked with Respondent in State and local government and had known him for many years. We also note that Respondent has spent the majority of his legal career in public service, both in the military and in various government positions. Many witnesses testified regarding his many notable accomplishments, and there was no hint that he had ever engaged in any impropriety in the past.
Finally, we take into account in mitigation the many positive steps Respondent has taken to rebuild his life since his arrest and conviction. The evidence established that after resigning his job as chief of staff and surrendering his law license, Respondent has essentially started over from a professional standpoint by taking a job as a linesman's apprentice electrician. He also worked the night shift in that job so he would be available to fulfill his obligations to the government that were part of his plea agreement. He is close to completing the three-year lineman training program and has also completed other training as part of that job. In addition, Respondent has taught a college course on aviation, is active in his sons' lives, and supports his church.
Having considered the nature of the misconduct and the various aggravating and mitigating factors, we now turn to the issue of an appropriate sanction. The Administrator argues that the egregious nature of Respondent's crime calls for the imposition of the ultimate sanction of disbarment. The Administrator relies on cases where attorneys have been disbarred, disbarred on consent, or suspended until further order for serious criminal wrongdoing involving bribery of public officials or similar misconduct. See Rosenthal, 73 Ill. 2d 46 (attorneys
disbarred for participating in extortion scheme perpetrated against client by a public official in a zoning matter); In re Silvern, 92 Ill. 2d 188, 441 N.E.2d 64 (1982) (attorney disbarred on consent following mail fraud and conspiracy convictions stemming from scheme to defraud which included improper payments to police officers); In re Fleischman, 135 Ill. 2d 488, 533 N.E.2d 352 (1990) (attorney disbarred on consent for bribing government officials in connection with tax appeals); Gottlieb, 109 Ill. 2d 267 (attorney disbarred on consent following mail fraud conviction stemming from payment of bribes to elected officials); Alexander, 128 Ill. 2d 524 (attorney disbarred on consent following conviction for mail fraud and racketeering stemming from the payment of bribes to deputy commissioners and employees of Cook County board of appeals); Robinson, 08 CH 109 (attorney suspended three years and until further order based upon mail fraud conviction stemming from the payment of kickbacks to public official).
Although Respondent acknowledges that some sanction is warranted, he contends that disbarment is too harsh and suggests a suspension in the range of three years or less is appropriate. Respondent relies on a number of cases where the Court has imposed sanctions short of disbarment in cases like this, where the respondent's criminal conduct is offset by extensive mitigation. See Cetwinski, 143 Ill. 2d 396 (attorney suspended three years based on criminal convictions stemming from improper payments for legal work); Gorecki, 208 Ill. 2d 350 (attorney suspended four months for falsely suggesting an individual could obtain a government job by paying kickbacks or bribes); In re Santos, 00 CH 78, M.R. 17493 (May 25, 2001) (attorney suspended two years based on mail fraud conviction stemming from improper use of city employees while a public official); In re Falcon, 08 CH 82, M.R. 23255 (Sept. 22, 2009) (attorney suspended three years for role in improper hiring scheme while a public official).
Respondent also requests that his proposed three year suspension be retroactive to April 6, 2010, the date his interim suspension commenced.
After considering the cases cited by both parties, the particular facts and circumstances of this case, and the goals of the disciplinary process, we conclude that a three-year suspension is appropriate discipline in this matter. Respondent's underlying misconduct was clearly serious and deserves a significant sanction. In light of the evidence in mitigation, however, particularly Respondent's extensive cooperation in the criminal matter, we do not believe the ultimate sanction of disbarment is warranted. The disbarment cases cited by the Administrator, most of which were disbarments on consent, do not appear to have involved the same level or extent of mitigation that was presented in this case. In addition, the underlying misconduct in many of these cases was more egregious because the attorneys were directly involved in the payment of bribes. While no two cases are identical, we believe Cetwinski, Robinson and Falcon, which all resulted in three-year suspensions, support a similar sanction in this case.
In Cetwinski, the respondent received a three-year suspension retroactive to the date of his interim suspension for misconduct involving improper payments in exchange for obtaining legal work from a municipality. This included the payment of improper "referral fees" to a suspended attorney as well as additional improper payments to the village manager. Although the respondent initially lied about his actions, he subsequently admitted his involvement, agreed to cooperate with authorities, pled guilty to two criminal charges, and was sentenced to five years probation. Although the Administrator sought disbarment, the Court cited the extensive evidence in mitigation in imposing a three-year suspension. The Court relied in particular on the respondent's extensive cooperation in the criminal case, which included testifying three times at the trial of another defendant and wearing a wire.
Similarly, in Robinson, the respondent received a suspension for three years and until further order for his role in a lengthy scheme involving the payment of kickbacks or bribes in exchange for favorable treatment of his client in obtaining government contracts. Although the respondent initially lied about the matter, he subsequently admitted his involvement, pled guilty to mail fraud, cooperated extensively with federal authorities, and testified at the trial of a co-defendant. As a result, he was given a substantially reduced sentence of one year and one day in prison. At his disciplinary hearing, both the prosecutor and FBI agent involved in his criminal case testified regarding his honesty, remorse, and the importance of his cooperation to their case. Although the underlying misconduct was sufficiently serious to warrant disbarment, due to the extraordinary mitigation, he was given a lengthy suspension instead.
The respondent in Falcon was suspended for three years for participating in a lengthy scheme while a Chicago city official to rig hiring test scores so that politically connected candidates won jobs over other applicants. After being contacted by federal authorities, she immediately began cooperating with the investigation of the City's hiring practices and participated in multiple interviews with the government. She also testified at the trial of others and was described as an instrumental witness for government in obtaining the convictions of the defendants. Due to her cooperation, she received immunity from prosecution from federal authorities. See also In re Glennon, 2009PR00137 (Dec. 3, 2012) (Hearing Board recommended a 3-year suspension based upon attorney's felony conviction where the attorney pled guilty, cooperated with the government, and received a substantially reduced criminal sentence).4
Although the particular facts of these cases vary, each of the foregoing cases involved attorneys who engaged in misconduct that was criminal in nature and involved some form of public corruption. Like Respondent, each of these attorneys subsequently admitted their
wrongdoing and provided extensive cooperation in the criminal investigations. This factor, as well as additional mitigation, resulted in three-year suspensions rather than disbarment in the subsequent disciplinary matters. Although Robinson also resulted in a suspension until further order, his criminal conduct was more egregious than Respondent's. In addition, we do not have the same concerns regarding Respondent's fitness to practice law that prompted the until further order suspension in that case.
Although Respondent has also requested that his suspension be imposed retroactive to the date of his interim suspension, we decline to include this as part of our recommendation. A retroactive suspension essentially gives a respondent credit for the time spent on interim suspension while the disciplinary proceedings are pending. In this case, however, we have already taken this factor into account in formulating our recommendation. In addition, since Respondent has been on interim suspension since April 6, 2010, a retroactive three-year suspension would essentially allow him to resume practicing immediately upon the conclusion of these disciplinary proceedings. We do not believe that such an outcome is appropriate in this case. While we are extremely impressed by Respondent's actions since his arrest, we cannot ignore the nature and seriousness of his underlying misconduct, especially his involvement in such a notorious case of public corruption. Based upon all of the facts and circumstances present here, we conclude that the purposes of the disciplinary process will be served by the imposition of a three-year suspension which runs from the date the Court imposes discipline in this matter. We believe that a lesser sanction would denigrate the seriousness of the Respondent's misconduct and erode public trust in the accountability of its government officials. See In re Sims, 144 Ill. 2d 323, 325, 579 N.E.2d 865 (1991).
For the foregoing reasons, we recommend that Respondent, John Frank Harris, be suspended for a period of three (3) years, with the suspension to run from the date of the Supreme Court's final order imposing discipline in this matter.
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 April 8, 2013.
Kenneth G. Jablonski, Clerk of the
1 Resp. Ex. 8 is also referred to in the record at Joint Exhibit 8.
2 Although Supreme Court Rule 770 is not referenced in this charge, we note that the charge is based on the language in that Rule. In In re Thomas, 2012 IL 113035, par. 92, the Illinois Supreme Court held that 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." Id. Although Thomas seemingly precludes charging a "violation" of Rule 770, we do not believe it precludes charging an attorney with engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute based on the language in that Rule. See In re Terronez, 2011PR00085 (Aug. 17, 2012) (Hearing Bd. at 19-21) (Appeal pending). Accordingly, we have addressed the merits of this charge. We also note, however, that our disciplinary recommendation would not change even if we rejected this charge based upon Thomas.
3 Audiotapes as well as written transcripts of these calls were introduced into evidence by the Administrator. Substantial portions of the audiotapes were also played during the hearing.
4 This case is still pending and discipline has not yet been finally imposed by the Court.