Filed August 29, 2013
In re Robert A. Huff
Commission No. 2011PR00082
Synopsis of Review Board Report and Recommendation
This matter arises out of the Administrator's two-count Complaint charging Respondent with committing criminal acts that reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer, engaging in conduct which is prejudicial to the administration of justice and failing to notify the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction.
Respondent pled guilty to conspiracy to distribute 1,000 kilograms or more of marijuana. The Hearing Board found that the judgment of conviction against Respondent was clear and convincing evidence that Respondent engaged in serious misconduct. The Hearing Board recommended that Respondent be disbarred.
Upon review, Respondent contended that the Hearing Board erred in finding that Respondent engaged in dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) and in recommending that he be disbarred. Respondent asked the Review Board to recommend a period of suspension, as opposed to disbarment.
The Review Board affirmed the findings of the Hearing Board. A majority of the Review Board recommended that Respondent be suspended for a period of four years and until further order of the Court. One member dissented, and recommended that Respondent be disbarred.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
ROBERT A. HUFF,
Commission No. 2011PR00082
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes to the Review Board following Respondent's conviction in federal court for distribution of marijuana. The Hearing Board recommended that Respondent be disbarred. The Respondent has filed exceptions, primarily contending that the Hearing Board erred in finding that Respondent engaged in dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) and in recommending that he be disbarred. Respondent asks that this Board to recommend a period of suspension, rather than disbarment.
We affirm the findings of the Hearing Board. A majority of the Review Board recommends that Respondent be suspended for four years and until further order of the Court. One dissenting member recommends Respondent be disbarred.
RESPONDENT'S MISCONDUCT AND CONVICTION
Respondent was admitted to practice law in Illinois in 1997. He was also admitted to practice in California, Colorado, the District of Columbia and Minnesota. While he practiced in Illinois, he primarily concentrated his practice in insurance defense litigation. He became dissatisfied and in 2005, he left the practice of law. Initially, he returned to study environmental
engineering but he did not obtain a degree. At the time of the misconduct in question, he was not practicing law and was on inactive status.
On December 2009, Respondent was convicted of conspiracy to distribute 1,000 kilograms or more of marijuana, in violation of U.S.C. ?? 841 (b)(1)(A) and 18 U.S.C. ? 2. The conviction arose out of Respondent's association with an individual, Chris Lambrou, from whom Respondent began to purchase marijuana in about 2007. Lambrou introduced Respondent to Oskar Sheldon ("Sheldon") who was involved in a network growing marijuana at a facility in California, purportedly legally, and illegally selling it in Chicago and Milwaukee.
In 2007, Respondent's family owned property in Indiana. In October 2007, Sheldon stayed at Respondent's condo in Chicago and at the home in Indiana during a distribution of a load of marijuana. Respondent allowed Sheldon to store several hockey duffel bags containing about 250 pounds of marijuana at the residences. Respondent testified he did not know the bags contained drugs. After a couple of days, Respondent falsely told Sheldon he had to leave because Respondent's parents would be visiting the Indiana home. A few days later, Respondent purchased six pounds of marijuana from Sheldon. He sold some of it to a friend, Victor, for a profit.
In November 2007, Respondent and Victor traveled to California to meet with Sheldon, where they purchased about 13-15 pounds of marijuana. Sheldon showed them the ranch where he grew the marijuana. There they arranged to purchase more marijuana on credit. After this transaction, however, Sheldon asked Respondent if he was "ready for more", but Respondent declined.
The federal government was investigating Sheldon in late 2007, and in January 2008, law enforcement officers raided the property in Indiana and arrested Respondent. The
authorities found 14 pounds of marijuana in the garage. The authorities also raided Respondent's residence in Chicago and found evidence of money orders to Sheldon. Respondent was taken to a jail in Milwaukee.
Respondent contacted the Department of Justice and offered his cooperation against the advice of his attorneys. In February 2008, Respondent was charged in a superseding indictment along with 29 others. Respondent only knew three of the co-defendants and prior to the indictment he did not know his conduct was connected to Milwaukee.
In August 2009, Respondent pled guilty to conspiracy to distribute 1,000 kilograms or more of marijuana. Pursuant to the plea agreement, Respondent admitted he intentionally conspired to possess with the intent to distribute and to distribute 1,000 kilograms or more of marijuana. The amount Respondent was found to be directly involved with was about 50 kilograms, or 108 pounds. Respondent, as part of the plea agreement, agreed to forfeit his interest in the condominium in Chicago and in cash seized from a safe in his condo. On December 14, 2009, Judge Michael Reagan sentenced Respondent to a term of 24 months imprisonment, five years supervised release, a $3,000 fine, a $100 special assessment, and 250 hours of community service. Respondent's cooperation with the federal government was taken into account and his sentence was accordingly reduced from 24 months to 18 months. Respondent reported to prison in February 2010. In December 2010, he was released into a halfway house and two months later was released to home confinement. Respondent was on supervised release at the time of his disciplinary hearing. By the time of hearing Respondent had paid his fine but had not yet completed his community service.
Respondent did not immediately report his conviction to the ARDC. He was on inactive status in 2009, and was not aware he was obligated to report his conviction. He reported the conviction to the ARDC in March, 2011.
On January 24, 2012, the Supreme Court of Illinois imposed an interim suspension on Respondent pursuant to Supreme Court Rule 761. At the time of hearing, the District of Columbia had suspended Respondent on an interim basis as a result of his conviction. As of the time of hearing, Minnesota had taken no action but Respondent had not paid his registration fees and so was not authorize to practice in Minnesota. In August 2012, the Supreme Court of California suspended Respondent for three years, with the suspension stayed, and placed Respondent on probation for four years with an actual suspension of two years and until he proves rehabilitation. Colorado suspended Respondent for three years in December 2012. On July 11, 2013, the District of Columbia Court of Appeals disbarred Respondent.
HEARING BOARD FINDINGS
The Hearing Board found that Respondent violated Rules 8.3(a)(3) and 8.4(a)(4) by committing a criminal act. Respondent's conviction conclusively established that Respondent engaged in the criminal conduct for which he was convicted. See. e.g., In re Scott, 98 Ill.2d 9, 16, 455 N.E.2d 81 (1983). The Hearing Board also found that Respondent failed to report his conviction within 30 days as required by Supreme Court Rule 761 and therefore engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5).
The Hearing Board's factual findings are entitled to deference, and they will not be disturbed unless they are against the manifest weight of the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E. 2d 300 (1993). For a finding on this basis, the opposite conclusion must be clearly evident. That the opposite conclusion is reasonable is not sufficient. In re Winthrop,
219 Ill. 2d 526, 542, 848 N.E. 2d 961(2006). We cannot conclude that the Hearing Board's finding that Respondent violated Rule 8.4(a)(4) was against the manifest weight of the evidence. For example, it appears that Respondent took steps to conceal his payments for the marijuana he purchased by using money orders in small amounts. Accordingly, we agree that his conduct involved some amount of dishonesty and deceit.
Respondent contends that he did not violate Rule 8.4(a)(4) because he did not engage in dishonesty with a client or a court. However, the Rule is not as limited as suggested by Respondent. We note that there have been cases where we have previously found a violation of Rule 8.4(a)(4) outside of the attorney-client relationship. See, e.g., In re Golden, 09 CH 88 (Review Bd., July 2012), Respondent's petition for leave to file exception denied, No. M.R. 25509 (Nov. 19, 2012)(Respondent disbarred for submitting false applications for financial aid to his daughter's school). We give deference to the Hearing Board's findings that Respondent's conduct involved dishonesty, fraud, deceit or misrepresentation and therefore violated Rule 8.4(a)(4).
In recommending a sanction, we are mindful that the purpose of the attorney disciplinary system is not to punish the attorney for his misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981(2006). In determining the appropriate sanction, this Board considers the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be
"consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 1135 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473, 479 (1994).
Respondent presented evidence in mitigation of his misconduct. He immediately cooperated with the federal government following his arrest and he cooperated fully with the Administrator during his investigation. He expressed remorse for his misconduct. His father and sister testified on his behalf. He has volunteered his time at the Shedd Aquarium and at Coral World in the Virgin Islands. Respondent's conduct did not involve the representation of clients; he had stopped practicing before his conduct in this matter. Respondent has not been previously disciplined.
In aggravation, the Hearing Board primarily found that Respondent demonstrated an indifference to the privilege of the practice of law, based on his response to the following question:
Do you want to practice law again?
A: It's more of a need, I suppose, than a want. I owe a lot of people a lot of things, a lot of money. Specifically first in line would be my parents. I have non-family debts probably close to $80,000. I have probably over?probably approaching 200 with the stuff that's going on with this case to my parents. And the only chance I foresee of making any reasonable effort to be able to pay that without bankruptcy or something along those lines would be to go back to practicing law. That was good-I was good.
As testified by Respondent and Respondent's sister, Respondent enjoyed trying cases. Respondent contends his answer to that question was not meant to convey an indifference to the privilege of practicing law.
We accept Respondent's position but we focus instead on Respondent's conduct in determining an appropriate sanction. There is no question that Respondent's illegal conduct was serious and warrants a substantial sanction. The Hearing Board, in recommending
disbarment, relied on a number of cases where the misconduct was arguably more aggravated than in the present case. In In re Harper, 91 CH 569 (Hearing Bd. Nov. 15, 1993) approved and confirmed, No. M.R. 9645 (Jan. 25, 1994), the respondent smuggled marijuana and cocaine into a jail and was convicted of possession and delivery of drugs to a prisoner in a penal institution. Her violation of the law was found to have jeopardized the safety of the prisoners and of those who worked in the jail. See also, In re Billmaier, 2009PR00125, discipline on consent allowed, No. M.R. 23587 (Mar. 16, 2010) (attorney disbarred on consent after conviction for possession of ecstasy and cannabis and bringing such contraband into a penal institution); In re Compton, 2010PR00052, discipline on consent allowed, No. M.R. 24306 (Jan. 19, 2011) (attorney disbarred on consent after conviction for bringing cannabis into a penal institution). In In re Provenzano, 94 CH 605, discipline on consent allowed, No. M.R. 10513 (Nov. 30, 1994) the attorney was disbarred on consent after multiple criminal convictions including possession with intent to deliver cannabis. He also engaged in additional misconduct involving insurance fraud. In In re Peek, 93 SH 369 & 457 (consolidated), M.R. 9461 (Mar. 26, 1996), a felony prosecutor for the State's Attorney's Office was found to have flaunted the law by conspiring to possess and distribute cocaine and marijuana. He was also found to be less than candid in his testimony regarding his misconduct and was disbarred.
We find that the case of In re Larson, 93 CH 467 (Review Bd., May 16, 1995) approved and confirmed in part, No. M.R. 11507 (Sept. 29, 1995) provides some guidance and is closest factually to the present case. In Larson, the attorney was suspended for four years following his conviction for distribution of cocaine. While recognizing the seriousness of the respondent's misconduct, this Board also found as mitigating factors that the attorney had never
been disciplined, that he had made substantial efforts at rehabilitation, and that he had performed pro bono work and community service.
Respondent was not an elected official at the time of his misconduct. In fact, he was not actively practicing law and no client was implicated by his involvement in the criminal conduct. He cooperated with the federal government and was candid in his testimony before the Hearing Board. He expressed remorse. His involvement in the criminal conduct was limited in time and in scope and he has not engaged in any misconduct since 2007. Consequently, we do not feel that disbarment, the ultimate sanction for an attorney, is warranted in this matter. We agree that a four year suspension is appropriate but believe that the suspension should run until further order of the Court. Given the seriousness of Respondent's misconduct and given the fact that he had not yet completed his community service as required at his sentencing, we believe that a suspension and until further order will best serve the purposes of discipline and will insure that Respondent has been rehabilitated before he is allowed to apply for reinstatement to the bar. Respondent asks that any sanction be retroactive to the date he agreed to an interim suspension. While we recognize that the Court has, in limited circumstances, allowed suspensions to be retroactive, given the severity of the misconduct, we do not feel that such a lenient measure is warranted in this case.
We affirm the findings of fact and the findings of misconduct of the Hearing Board and we recommend that Respondent, Robert A. Huff, be suspended for four years and until further order of the Court.
Robert M. Henderson
Johnny A. Fairman, II, dissenting:
A Hearing Board's recommendation as to a sanction is entitled to deference when the Board assessed the attorney's demeanor in connection with its recommendation. In re Schencker, 95 CH 704 (Review Bd., Dec. 30, 1997), approved and confirmed, No. M.R. 14598 (March 23, 1998). I defer to the Hearing Board's assessment of this matter, including the Hearing Board's determination of the proper sanction recommendation.
Respondent engaged in the deliberate disregard of the law by conspiring to distribute a large amount of marijuana in this state. His actions were not hasty or the result of a fleeting loss of judgment. He traveled to California and arranged for large shipment of drugs to be illegally transported to this state for sale. The Hearing Board listened to his explanations and they concluded that he should be disbarred. I agree.
In a recent decision, the Illinois Supreme Court disbarred an attorney who engaged in similar misconduct. In In re Stock, 2012PR00069 (Hearing Bd., Nov. 2, 2012), approved and confirmed, No. M.R. 25743 (March 15, 2013), the attorney agreed to act as a front for a rather large operation involving the cultivation and distribution of marijuana. Stock rented a large warehouse to two individuals where he allowed others to grow marijuana for distribution. He was paid a fee to act as a front and he visited the warehouse on multiple occasions to arrange for utility installations for lights for the more than 8,000 marijuana plants. He pled guilty in California to unlawful possession of marijuana for the purpose of sale was sentenced to five days in jail in California followed by probation. Like this Respondent, he expressed remorse for his misconduct. He was disbarred.
This Respondent's conduct was arguably more egregious, warranting an incarceration of more than a year, even given his cooperation with the government. In light of the
very serious nature of his misconduct, I dissent from the recommendation of the majority. I recommend that Respondent be disbarred.
Johnny A. Fairman, II
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 Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on August 29, 2013.
Kenneth G. Jablonski, Clerk of the