Filed September 12, 2013
In re Gary Evan Peel
Commission No. 07 CH 117
Synopsis of Review Board Report and Recommendation
This matter arises out of Respondent's conduct that resulted in his criminal conviction in federal court for bankruptcy fraud and child pornography. The Administrator's Complaint charged Respondent with committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3), and with engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5).
The hearing in this matter was stayed pending Respondent's direct appeals of his conviction. After Respondent's direct appeals were exhausted, a hearing was held. The Hearing Board found that the Respondent committed criminal acts that reflected adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, and engaged in conduct prejudicial to the administration of justice and recommended that Respondent be disbarred.
On appeal, Respondent contended that the Hearing Board erred in proceeding to a hearing pursuant to Supreme Court Rule 761 in light of Respondent's pending collateral attack on his criminal conviction. Respondent also contended that his due process rights were violated because of the rules governing reinstatement to the practice of law.
The Review Board concluded that the Hearing Board appropriately proceeded with a hearing. The Review Board found Respondent's due process argument to be speculative. The Review Board recommended that Respondent be disbarred.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
GARY EVAN PEEL,
Commission No. 07 CH 117
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes to this Board upon the Hearing Board's recommendation that Respondent be disbarred as a result of his conduct leading to his criminal conviction in federal court for bankruptcy fraud and possession of child pornography.
Respondent concedes that if his criminal conviction stands, disbarment is appropriate. However, Respondent has filed exceptions to the Hearing Board's Report and Recommendation contending that the Hearing Board erred in proceeding to a hearing pursuant to Supreme Court Rule 761 in light of Respondent's pending collateral attack on his criminal conviction. Respondent is currently incarcerated and is suspended from the practice of law until further order pending the outcome of his disciplinary proceeding. He has challenged his conviction by way of a motion pursuant to 28 U.S.C. sec. 2255 ("2255 motion"). Respondent also contends upon review that his due process rights are being violated because the rules governing reinstatement to the practice of law provide that he would have to wait five years following his disbarment in order to seek reinstatement even if his conviction is vacated. For the following reasons, we reject Respondent's arguments, we find that the Hearing Board appropriately
proceeded with a hearing in this matter, and we affirm the Hearing Board's Report and Recommendation.
FACTS AND PROCEDURAL HISTORY
In 1974, Respondent admittedly took sexually explicit pictures of the sixteen year old sister, D.R., of his then wife, Debra Peel. Respondent kept the pictures. In November 2003, Respondent and Debra Peel obtained a divorce. As part of the settlement of dissolution, Respondent was required to meet certain financial obligations to Debra. In 2005, Respondent filed for bankruptcy and sought to discharge his obligations to Debra under the judgment of dissolution. Debra filed an objection in the bankruptcy case. In January 2006, Respondent telephoned Debra and informed her of the sexual relationship with D.R. during their marriage. He informed her that if she did not drop her bankruptcy challenge and reduce his financial obligations to her by approximately three-quarters of one million dollars, he would mail the pictures of D.R. to his ex-wife's elderly parents.
Following the conversation, Debra found the copies of the photographs in her mailbox and contacted law enforcement. In further telephone conversations, with the cooperation of law enforcement, Respondent agreed to turn over the original pictures only if Debra signed a new settlement agreement. Debra and Respondent met and the agreement and pictures were exchanged. The FBI then retrieved the original photographs and through further investigation obtained evidence of the photographs from Respondent's printer.
Respondent was arrested, and was indicted in the United States District Court for the Southern District of Illinois. The indictment charged him with one count each of bankruptcy fraud and obstruction of justice and two counts of possession of child pornography. On March 23, 2007, a jury convicted Respondent of all four counts of the indictment. On November 19,
2007, Respondent was sentenced to twelve years in federal prison, to be followed by three years of supervised release.
On November 23, 2007, the Administrator filed a one-count complaint against Respondent charging him with committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3), and with engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5). Respondent filed an appeal in his criminal case and the disciplinary matter was stayed pending the outcome of the appeal in compliance with Supreme Court Rule 761.
In February 2010, the United States Court of Appeals for the Seventh Circuit remanded the case for the District Court to vacate either the bankruptcy count or the obstruction of justice count. Respondent filed a petition for writ of certiorari in the United States Supreme Court. The petition was denied on January 18, 2011. On August 1, 2011, the District Court vacated the obstruction of justice count and sentenced Respondent again to 144 months (12 years) imprisonment, followed by a 3-year term of supervision. On February 6, 2012, the United States Court of Appeals affirmed Respondent's conviction on the remaining three counts.
On March 29, 2012, Respondent filed in the United States District Court for the Southern District of Illinois a "Motion Under U.S.C. sec. 2255 To Vacate, Set Aside, Or Correct Sentence By a Person In Federal Custody."
The Administrator filed an Amended Complaint before the Hearing Board based on the judgment of conviction rendered after Respondent's appeal. The Hearing Board proceeded to hearing on June 20, 2012 over Respondent's objection. The Hearing Board issued its Report and Recommendation, rejecting Respondent's affirmative defenses, finding the misconduct as alleged by the Administrator and recommending Respondent be disbarred.
Supreme Court Rule 761 sets out the procedures to be followed in a disciplinary proceeding that is based upon a criminal conviction. Generally, once an attorney has been convicted of a crime, a hearing is conducted to determine whether the conviction warrants discipline. Supreme Court Rule 761(d)(2) provides, "If the attorney has appealed from the conviction, the hearing shall be delayed until completion of the appellate process unless the attorney requests otherwise."
A collateral attack is not a direct appeal. Williams v. United States, 365 F.2d 21 (7th Cir. 1966). This Board has previously rejected a respondent's argument that his disciplinary hearing should have been delayed during the pendency of his collateral attack on his conviction, stating that the respondent's habeas corpus petition was "not part of the ?appellate process' within the meaning of Rule 761(d)(2)." In re Thomas, 00 CH 18 (Review Bd., May 20, 2005) at 6-7, petition for leave to file exceptions granted and sanction increased, No. M.R. 20289 (Sept. 26, 2005).
Respondent distinguishes the Thomas case by arguing that it involved a habeas corpus petition pursuant to 28 U.S.C. sec. 2254 as opposed to a sec. 2255 motion. However, Respondent ignores the fact that both are collateral attacks designed provide a remedy for correcting erroneous sentences. Thus, in the disciplinary context, if a sec. 2254 motion does not operate to stay a disciplinary proceeding pursuant to Supreme Court Rule 761, then it follows that a sec. 2255 motion should not cause a stay to be required by Rule 761. Moreover, the United States Supreme Court has noted that similar motions are not appeals from a judgment but are collateral proceedings attacking the sentence imposed. See, e.g., Bousely v. United States, 523 U.S. 614, 619 (1998); United States v. Addonizio, 442 U.S. 178, 184 (1979); See also, United
States v. Frady, 456 U.S. 152, 154 (1982). Similarly, Illinois courts consider such a motion to be a collateral attack from, and not an appeal from, a final judgment of conviction. People v. Petrenko, 237 Ill.2d 490, 499, 931 N.E.2d 1198 (2010).
We find no basis to conclude that the Court intended to encompass collateral proceedings when it adopted Rule 761(d)(2). The Hearing Board held the hearing on June 20, 2012, more than five years after the jury's verdict, and after Respondent's direct appeals had been completed. The disciplinary system, and the public's confidence in the system, depends on the expeditious resolution of matters. The Hearing Board did not violate Supreme Court Rule 761 by conducting the hearing while Respondent's collateral attack remained pending.
Respondent also contends that his substantive and due process rights have been violated by the ARDC because Supreme Court Rule 767 precludes him from petitioning for reinstatement no sooner than five years after the date of the order of disbarment, even if his criminal conviction is vacated.
We agree with the Hearing Board that Respondent's argument is speculative and without merit. Respondent has not yet been disbarred, and this is not a reinstatement proceeding pursuant to Supreme Court Rule 767. Moreover, Respondent's motion(s) in the collateral proceedings have not, to date, succeeded. Therefore, we will not speculate as to what might happen in an imaginary case that is not before us.
Respondent's criminal conduct involved moral turpitude. The Court has disbarred attorneys for engaging in criminal conduct involving moral turpitude. See, e.g., In re Fumo, 52 Ill. 2d 307, 288 N.E.2d 9 (1972); In re Vavrick, 117 Ill.2d 408, 512 N.E.2d 1226 (1987). We agree with the Hearing Board that Respondent's conduct was egregious and warrants disbarment.
We affirm the findings of the Hearing Board and recommend to the Court that Respondent, Gary Evan Peel, 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 onSeptember 12, 2013.
Kenneth G. Jablonski, Clerk of the