Filed October 30, 2013

In re Patrick Andrew Fleming
Attorney-Respondent

Commission No. 2011PR00017

Synopsis of Hearing Board Report and Recommendation
(October 2013)

The Administrator filed a one-count Second Amended Complaint against Respondent, alleging that he made false statements to the Department of Homeland Security and United States Immigration Court in connection with immigration matters involving his former mother-in-law. The Administrator further alleged that Respondent made a false statement of material fact in his disciplinary matter. Respondent denied that he made false statements or committed any misconduct.

The Hearing Board found that the Administrator proved some but not all of the charged misconduct. Specifically, the Hearing Board found that Respondent gave false testimony to the Immigration Court, which constituted dishonest conduct in violation of Rule of Professional Conduct 8.4(a)(4) and prejudiced the administration of justice in violation of Rule of Professional Conduct 8.4(a)(5). The majority of the Hearing Board declined to find that Respondent engaged in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, but the dissenting member of the Hearing Board Panel would have found that the Administrator proved that charge with respect to Respondent's false testimony. The Hearing Board found that the Administrator did not prove misconduct with respect to Respondent's other allegedly false statements. The Hearing Board recommended Respondent receive a censure.

BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

PATRICK ANDREW FLEMING,

Attorney-Respondent,

No. 6184087.

Commission No. 2011PR00017

REPORT AND RECOMMENDATION OF THE HEARING BOARD

The hearing in this matter was held May 28, 29, and 30, 2013, at the Chicago offices of the Attorney Registration and Disciplinary Commission (ARDC) before a Hearing Board Panel consisting of Henry T. Kelly, Chair, Adrienne D. Mebane, and Cheryl Kneubuehl. Wendy Muchman and Eunbin Rii represented the Administrator. Stephanie Stewart-Page and Samuel J. Manella represented Respondent, Patrick Andrew Fleming.

PLEADINGS

Complaint

The Administrator filed a one-count Second Amended Complaint against Respondent on March 8, 2013, alleging that he made false statements regarding his former mother-in-law's residence on an immigration form, in a letter and affidavit to the Department of Homeland Security, and to the United States Immigration Court. The Administrator further alleged that Respondent made a false statement of material fact in connection with his disciplinary matter.

Answer

Respondent admitted some of the Administrator's factual allegations, denied others, and denied committing any misconduct.

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Alleged Misconduct

Respondent was charged with knowingly making a false statement of fact to a tribunal in violation of Rule 3.3(a)(1) of the 1990 Illinois Rules of Professional Conduct (Count I); engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the 1990 Rules and Rule 8.4(c) of the 2010 Illinois Rules of Professional Conduct (Counts I and II); engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the 1990 Rules and Rule 8.4(d) of the 2010 Rules (Counts I and II); knowingly making a false statement of material fact in connection with a disciplinary matter, in violation of Rule 8.1(a) of the 2010 Rules (Count II); and engaging in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute (Counts I and II).

EVIDENCE

The Administrator presented the testimony of Respondent and Susan Gzesh. The Administrator's Exhibits 3-8, 10-18, 22-29, 32-34, and 36-38 were admitted into evidence. (Tr. 16, 99, 103, 207-209, 764, 765, 779, 857, 938, 946-49). Respondent testified on his own behalf and presented seventeen witnesses. Respondent's Exhibits 1-29, 37, 39-42, 48-49, 55-61, and 64-67 were admitted into evidence. (Tr. 17, 418, 422, 423, 823-26, 831, 833-34, 935).

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. In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991).

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I.    Respondent is charged knowingly making a false statement of fact to a tribunal in violation of Rule 3.3(a)(1), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4), engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5), and engaging in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute (1990 Rules).

Background

Respondent was born in England and is a naturalized United States citizen. He has been licensed to practice law in Illinois since 1982 and is a partner at Novack & Macey. He focuses his practice on civil litigation. (Tr. 67, 72, 591-92).

In 1996, Respondent met his former wife, Tatiana Vynogradenko (Tanya), a Ukrainian citizen, through an online dating service. Tanya moved to Chicago in 1997 and into Respondent's home at 2603 N. Greenview Avenue. Respondent and Tanya were married on April 9, 1998. In July 2000, they moved to a new home at 1703 W. Wrightwood Avenue. (Tr. 82, 83, 85, 595, 597).

Tanya's mother, Antonina Surganova (Antonina), and Antonina's son, Anthony, both Ukrainian citizens, visited Respondent and Tanya in Chicago in 1997 and then moved in with them in early 2000, around the time that Respondent and Tanya's daughter, Emily, was born. Antonina and Anthony lived with Respondent and Tanya, and Antonina helped take care of Emily. While they lived at 1703 W. Wrightwood, Anthony and Antonina shared a bedroom on the top floor. (Tr. 595, 597-98).

In April 2001, Antonina married Joseph Beaudion, who is now deceased. Beaudion and Patrick Russo were Respondent's neighbors when he lived at 2603 North Greenview. Beaudion was Russo's caretaker. Antonina became friends with Beaudion when she visited in 1997 and their friendship continued in 2000 when Antonina returned to Chicago. In late 2001, Beaudion and Russo moved to 501 N. Clinton Street. (Tr. 601, 602, 607).

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Based on her marriage to Beaudion, Antonina petitioned to adjust her immigration status. On November 18, 2003, in connection with Antonina's immigration matter, Respondent submitted a Form I-864 Affidavit of Support (Affidavit of Support) to the Department of Homeland Security (DHS). By submitting this document, Respondent agreed to financially support Antonina if she were unable to support herself. The Affidavit of Support stated that Antonina resided at 501 N. Clinton Street. (Adm. Ex. 6; Resp. Ex. 26).

Respondent's marriage to Tanya began to unravel in May 2004, when Respondent learned that Tanya was having an affair with her dance instructor. Respondent filed for divorce from Tanya on June 11, 2004. Shortly thereafter, on July 7, 2004, Respondent sent a letter to DHS requesting to immediately withdraw his Affidavit of Support for Antonina. Respondent retained counsel, who sent DHS a more detailed letter and affidavit signed by Respondent on July 14, 2004. The letter and affidavit stated that Respondent had learned that Antonina's marriage to Beaudion was fraudulent. An investigation into Antonina's marriage ensued, and DHS initiated removal proceedings against Antonina. (Tr. 647-51; Adm. Exs. 8, 11, 12).

On June 19, 2006, Respondent testified as a witness in Antonina's removal proceeding. On July 17, 2006, the Immigration Court ordered that Antonina be removed from the United States. (Adm. Exs. 17, 36).

Upon review of the Board of Immigration Appeals' decision affirming the removal order, the United States Court of Appeals, Seventh Circuit, questioned whether Respondent made misrepresentations related to Antonina's residences and brought the matter to the Administrator's attention. (Adm. Ex. 24).

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We first address the allegations that Respondent made false statements in his Affidavit of Support, his letter and affidavit to DHS, and his testimony before the Immigration Court. We will address each of these statements individually.

Affidavit of Support

A. Admitted Facts and Evidence Considered

In early September 2003, Tanya asked Respondent to cosponsor Antonina's petition to adjust her permanent resident status and to sign an Affidavit of Support on Antonina's behalf. Respondent agreed on the condition that Antonina move in with her husband, Beaudion, on a permanent basis. Respondent was concerned that Antonina seemed to have two addresses at the time. She usually stayed at Respondent's house from Sunday night until late Friday afternoon and then was gone over the weekend. Tanya told Respondent that Antonina was with Beaudion on the weekends. (Tr. 602-603, 607 611-12; Adm. Ex. 4).

Respondent testified that Antonina moved out of his home at 1703 W. Wrightwood sometime in September 2003. She still came to Respondent's home during the day because she was looking after Emily, Anthony, and two other children. Respondent was under the impression that she spent nights with Beaudion. At that time, Respondent believed that Antonina and Beaudion were in a real marriage. (Tr. 612-15).

In September 2003, Antonina had some documents notarized at Respondent's office. She brought her driver's license and a bank statement to verify her identity, and those items listed her address as 501 N. Clinton. After Respondent was satisfied that Antonina had moved out of his home, he agreed to sign the Affidavit of Support. Respondent's understanding was that by signing the Affidavit of Support he agreed to reimburse the federal government if Antonina would ever become a public charge. He did not believe he was verifying that Antonina and Beaudion had a bona fide marriage. (Tr. 89, 90, 95, 180, 608-11, 628; Adm. Ex. 6).

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Respondent was first given the Affidavit of Support a day or two before he signed it. It was prepared by a law firm that Antonina hired. Respondent signed the Affidavit of Support under oath. It listed Antonina's current address as 501 N. Clinton. Respondent believed at the time that Antonina resided at that address. Respondent picked Antonina and Beaudion up at 501 N. Clinton when he drove them to their INS interview on November 18, 2003. (Tr. 615-20, 623, 625, 628-29; Adm. Ex. 6).

During the fall of 2003, Respondent was involved in a large, complex case, the "Night Vision" case, that required him to work over 200 hours per month. Also during that time Respondent's mother was diagnosed with lung cancer, and Respondent spent a lot of time checking on her and talking with family members. He went to England in December 2003 and again in early 2004 to visit his mother. Consequently, he was away from home for a substantial amount of time. (Tr. 632, 634, 635-37).

Respondent now believes that Antonina moved out of his house temporarily in order to get him to sign the Affidavit of Support. It later became clear to Respondent that Antonina never abandoned his house. (Tr. 129).

Respondent presented testimony from several witnesses that Antonina did not live at 1703 W. Wrightwood during the fall of 2003. Francis Michael Shaw is a contractor who performed work in Respondent's home in late fall or early winter of 2003. He painted, patched and did repair work in the front bedroom of the house at 1703 W. Wrightwood, which had been Antonina's bedroom. Tanya told him that she wanted the room cleaned up because her mother was no longer living there. When he performed the work, the room was "virtually empty," with nothing in the closet, no sheets on the bed, and no personal effects in the bathroom. (Tr. 226-27, 235).

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Christopher Shaw (Chris) is a friend of Respondent's. They met in 1993 through Chris's job as vice counsel for the British Consulate. Respondent was an honorary legal advisor for the British Consulate. Chris became friends with Respondent and saw him thereafter several times a week. Between 1995 and late 2003, Chris stayed overnight at Respondent's house approximately three Friday nights per month. Chris testified that, after Antonina and Beaudion were married, Antonina spent the weekends away from Respondent's home. He did not observe Antonina in Respondent's home when he stayed there. In the fall of 2003, Respondent told Chris that Antonina had moved out of his home. (Tr. 310-11, 317-19, 320-21).

Christine Shaw (Christine) is married to Christopher Shaw. She has known Respondent since 1994. She and her family socialized with Respondent and his family prior to his divorce. Christine's understanding was that Antonina spent weekends with Beaudion after they were married. Christine believed that to be the case because Respondent would care for Antonina's son, Anthony, on weekends. Christine and her family spent Thanksgiving Day 2003 with Respondent and his family. Antonina was not present, and Tanya told Christine that she was spending the holiday with her husband. (Tr. 342-45, 347-50).

Nigel Morgan is a friend of Respondent's nephew, Edward Pennington. Morgan stayed in Respondent's basement bedroom on two occasions, in April 2002 and December 2003. In April 2002, he saw Antonina at Respondent's home when he arrived there on a Friday and did not see her after that time. During the December 2003 visit, Morgan did not see Antonina in Respondent's home. Respondent told Morgan that Antonina no longer lived there. (Tr. 437, 441, 444-45, 449-50).

George Frederick Mueller is an attorney who practices in California. He has been close friends with Respondent since they met in law school. Mueller stayed at Respondent's home on

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September 29, 2003. Mueller did not see Antonina there. Respondent told her that she was with her husband. Mueller stayed with Respondent on two previous occasions and did not see Antonina during those visits. (Tr. 457-58, 461-63).

Respondent's nephew, Giles Edward Pennington, lives in Chicago and sees Respondent frequently. Between July 2000 and June 2004, Pennington visited Respondent's home at least three times a week. Antonina was usually not at Respondent's home on weekends because, according to Respondent, she was with her husband. In early September 2003, Respondent and Tanya told Pennington that Antonina had moved out. During the fall of 2003, Pennington occasionally put Anthony to bed and saw that Antonina's bed did not have any sheets nor were any of her belongings in the room that she and Anthony had shared. Pennington specifically recalled being in Anthony's room on October 14 and October 15, 2003, because he was watching Cubs' games at Respondent's house those nights. In the spring of 2004, Respondent told Pennington that Antonina had moved back into his home. (Tr. 564, 567, 575-76, 580, 582-83, 585).

Expert Testimony

The Administrator called Susan Gzesh as an expert in immigration law. Gzesh is an attorney and a senior lecturer at the University of Chicago. She is also of counsel to Hughes, Socol, Piers, Resnick & Dym. Gzesh opined that it would be clear to any affiant in connection with an application for lawful permanent residence that the current address of the immigrant would be an important fact as to whether the marriage was or was not a sham. Gzesh did not find a definition of "address" in any of the material she reviewed. (Tr. 836, 885-87).

An Affidavit of Support is not typically used to verify whether a marriage is bona fide but, in this case, Antonina's current address became an issue before the immigration tribunal.

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Gzesh agrees with Respondent's expert, Donald Kempster, that the term "current address" does not exclusively mean residence address. It depends on the circumstances of the petition. (Tr. 899-900, 918-20).

Donald B. Kempster is an attorney who practices and teaches immigration law. He testified as an expert for Respondent. Kempster opined that the purpose of the Affidavit of Support is to show that the person preparing the form is able to support the person applying for resident status. Based on the many immigration cases he has handled, Kempster is of the opinion that the term "current address" on the form does not necessarily refer to a residential address but to a place where the immigrant can be contacted or receives mail. Kempster also relied on the Black's Law Dictionary definition of address as a place where a person receives mail. In Kempster's experience, immigration officials do not rely on the Affidavit of Support to establish where the immigrant resides. On cross-examination, Kempster testified that he has seen the "current address" section of the form used for both residence address and mailing address. (Tr. 254, 259, 261, 263, 269, 285).

Michael Riebau testified as an expert for Respondent. He owns an investigative consulting firm that focuses on helping employers ensure that they do not hire unauthorized workers. Before starting his business, he worked for the Immigration and Naturalization Service and Department of Homeland Security in a variety of positions for approximately 33 years. He is not an attorney. Based on Riebau's experience, the Affidavit of Support does not serve any purpose other than to bind the sponsor to providing financial support for the immigrant if she becomes a public charge. The "current address" requested on the form is a contact address that is not used to verify the immigrant's residence. The Affidavit of Support is a contract between

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the sponsor and the government and has no bearing on verifying an immigrant's address or whether the immigrant's marriage is bona fide. (Tr. 365-73, 379, 393-95, 400-401).

B. Analysis and Conclusions

The Administrator alleges that Respondent knew that the 501 N. Clinton address listed for Antonina on the Affidavit of Support was false. We find that the Administrator did not prove misconduct with respect to the Affidavit of Support by clear and convincing evidence.

We find credible Respondent's testimony that, at the time he signed the Affidavit of Support on November 18, 2003, he believed that Antonina was living with Beaudion at 501 N. Clinton. Respondent gave undisputed testimony that he insisted that Antonina move out before he would sign the Affidavit of Support. Based on Respondent's observations and Tanya's representations, Respondent believed at the time he signed the Affidavit of Support that Antonina had moved out of his home and into Beaudion's apartment. Respondent's testimony that Antonina was not living at 1703 W. Wrightwood during the fall of 2003 was corroborated by Francis Shaw, Chris Shaw, Christine Shaw, Nigel Morgan, George Mueller, and Edward Pennington. Francis Shaw and Pennington saw the bedroom that Antonina had occupied and testified they did not see any of Antonina's belongings in the room. The Administrator did not establish by clear and convincing evidence that Antonina still lived at 1703 W. Wrightwood at the time Respondent signed the Affidavit of Support or that, to Respondent's knowledge, she lived anywhere other than 501 N. Clinton at the time. Although Respondent later learned that Antonina did not move to 501 N. Clinton, we must consider his knowledge at the time he signed the Affidavit of Support. In so doing, we find the Administrator did not prove that Respondent made a false statement or committed any other misconduct with respect to the Affidavit of Support.

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Letter and Affidavit to Department of Homeland Security

A. Admitted Facts and Evidence Considered

We consider the following evidence in addition to the evidence previously summarized.

Respondent testified that Antonina resumed living in his home in mid-March 2004. Shortly thereafter, in May 2004, Respondent learned of Tanya's extramarital affair. When Respondent confronted Tanya he also learned that Antonina never lived with Beaudion. (Tr. 640-41, 647-51).

Respondent wanted Antonina to move out of his home because he believed she was contributing to the problems with his marriage. He was willing to purchase a home for Antonina so she could move out. Respondent then learned that Antonina had a boyfriend, Mark Zdunek, who wanted to purchase a home with her. However, Antonina and Zdunek were unable to get financing. On May 21, 2004, Respondent spoke with attorney Elizabeth Corey about structuring a real estate purchase so that Antonina could have her own home and Respondent would not lose any investment he made on Antonina's behalf. Ultimately, Respondent's relationships with Tanya and Antonina deteriorated, and Respondent did not purchase any property for Antonina. (Tr. 530-34, 652-59).

On June 10, 2004, Respondent filed a petition for an order of protection to have Antonina removed from 1703 W. Wrightwood. He filed for divorce from Tanya on June 11, 2004. Tanya, in turn, filed an emergency petition for an order of protection against Respondent. In her testimony in connection with her emergency petition, Tanya testified that Antonina had always resided at 1703 W. Wrightwood. This caused Respondent to be concerned that someone might think he was involved in Antonina's fraudulent marriage. (Tr. 97-98, 662-64, 667; Adm. Exs. 7, 8).

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Because of his concern, Respondent drafted a letter, dated July 7, 2004, to DHS, indicating that he wished to revoke his Affidavit of Support. Respondent discussed the letter with Chris Shaw after he sent it. Chris did not think the letter was sufficient and advised Respondent to report the marriage fraud to the government. Chris testified that Respondent was not keen on reporting Antonina to DHS because he was hoping to reconcile with Tanya. (Tr. 323, 325-26, 329, 334-35, 667-70; Adm. Ex. 11; Resp. Ex. 22).

Respondent took Chris's advice and met with attorney Justin Burton to discuss whether he should come forward with his knowledge about Antonina's marriage fraud. Burton advised Respondent that the marriage fraud was an ongoing crime that Respondent was obligated to report. After speaking with a contact at DHS, Burton prepared a letter and affidavit to submit to DHS. Respondent signed the affidavit on July 14, 2004. The affidavit stated as follows, in pertinent part:

That on or about April 25, 2001, my mother-in-law indicated that she had married an elderly man who lived next door. As I was not home much of the time due to work commitments, I was not aware of their true relationship at that time. I thought, of course, that they would move in together as husband and wife. This never happened. My wife and mother-in-law then asked if I would execute an affidavit of support in order to assist in her immigration to the United States. I did.

That my mother-in-law never moved in with her husband. My belief became that they had entered into this marriage in order to circumvent the Immigration laws of this country. She would invite him over occasionally for family affairs and holidays for the sole purpose of obtaining pictures to show to the Immigration officer at the time of her upcoming interview. This marriage was entered into only to receive her lawful permanent resident status.

(Adm. Ex. 12; Resp. Ex. 23). Respondent believed the statements in the affidavit to be true based on what Tanya had told him. He did not indicate that Antonina had moved out for a period of time in the fall of 2003. (Tr. 103-104, 673-77; Adm. Ex. 12; Resp. Ex. 23).

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Burton testified that he first met with Respondent in July 2004. Respondent told Burton that he had learned Antonina was involved in a fictitious marriage and was concerned about his involvement based on the Affidavit of Support he had filed. Respondent wanted to withdraw the Affidavit of Support and distance himself from Antonina's immigration case because he was concerned that it could adversely affect his law license. Burton's belief was that Respondent had recently found out that Antonina's marriage was fraudulent. Burton did not know specifically when Respondent learned this. (Tr. 480-82, 486-87, 503).

B. Analysis and Conclusions

The Administrator alleges that the following statement contained in Respondent's affidavit of July 14, 2004, was false:

I thought, of course, that they would move in together as husband and wife. This never happened?My mother-in-law never moved in with her husband.

We find that the Administrator did not prove any misconduct by clear and convincing evidence with respect to this statement. We find credible Respondent's testimony that the statement was accurate based on information he learned from Tanya in May 2004. Respondent did not say that Antonina never moved out of 1703 W. Wrightwood. Rather, he said that Antonina never moved in with her husband. Having considered all of the relevant evidence, the Administrator has not proven that any part of Respondent's July 14, 2004 statement was false.

Immigration Court Testimony

A. Admitted Facts and Evidence Considered

We consider the following evidence in addition to the evidence previously summarized.

On June 19, 2006, Respondent testified as a witness for the government in Antonina's removal proceedings and gave the following testimony:

Q.    And who resided at the Wrightwood address between July and the present as you mentioned earlier?

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A.    From July 2000 until June 2004, myself, Tanya, her mother, Antonina Surganova, her son, Anthony Surganova, and Emily.

?

Q.    At any time to the best of your knowledge and based on your own living experience with Miss Surganova, did she ever live elsewhere?

A.    No.

?

Q.    You testified that Mr. Beaudion never lived in your house. Is it possible that Antonina lived with Beaudion somewhere else?

A.    No, it's not possible.

Q.    And why not?

A.    Because with the exception of the occasional times when I may have been out of town on business, or may have been gone on vacation, I was always living in the house. Miss Beaudion was always living in the house.

(Adm. Ex. 17 at 8, 9, 49). Respondent testified that his Immigration Court testimony was truthful because he had different knowledge at different points in time. He admitted that he did not tell the Immigration Court that Antonina moved out for a period of time during fall 2003, but he was not trying to mislead the Court. Respondent stated that his testimony was focused on Antonina's legal residence. (Tr. 686-87, 689, 695-96; Adm. Ex. 17).

B. Analysis and Conclusions

We find that the Administrator proved some but not all of the charged misconduct related to Respondent's testimony before the Immigration Court.

We do not find any misconduct with respect to Respondent's testimony that he, Tanya, Antonina, Anthony, and Emily lived at 1703 W. Wrightwood between July 2000 and June 2004. Respondent was asked generally who lived at the Wrightwood address, and Antonina did reside there for much of the time period in question. Accordingly, the Administrator did not prove that this testimony was false or dishonest.

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However, we find that Respondent testified falsely when he stated that, between July 2000 and June 2004, Antonina always lived at 1703 W. Wrightwood and it was not possible that she lived elsewhere for any period of time. This testimony cannot be reconciled with Respondent's position here that Antonina moved out of his home for a period of time in the fall of 2003. There is no question that Respondent was aware that Antonina moved out, as he was the one who insisted she do so before he would sign the Affidavit of Support. Although Antonina apparently did not move in with Beaudion, she did move out of 1703 W. Wrightwood for a period of time, according to Respondent and the many witnesses who testified in this matter. Accordingly, Respondent's Immigration Court testimony was false.

We are not persuaded by Respondent's assertion that the questioning in the removal proceeding focused on Antonina's legal residence. Respondent was asked where Antonina lived, not where her legal residence was. He testified unequivocally that at all times Antonina lived at 1703 W. Wrightwood.

By testifying falsely, Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4). Respondent's false testimony also undermined the integrity of the legal system and jeopardized the achievement of a just result in Antonina's removal proceeding, thereby causing prejudice to the administration of justice in violation of Rule 8.4(a)(5).

Although we find that Respondent's testimony was false, we conclude that the Administrator did not prove a violation of Rule 3.3(a)(1). The 1990 version of Rule 3.3(a)(1), which applies here, prohibits lawyers from making a false statement of material fact or law when appearing in a professional capacity before a tribunal. Respondent appeared before the

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Immigration Court in a personal capacity, rather than professional one. Consequently, Rule 3.3(a)(1) does not apply.1

Additionally, based on In re Thomas, 2012 IL 113035, ? 92, we decline to find that Respondent engaged in conduct that tends to bring the courts or the legal profession into disrepute. This decision does not affect our sanction recommendation. In re Gerard, 132 Ill. 2d 507, 532, 548 N.E.2d 1051 (1989).

II.    Respondent is charged with knowingly making a false statement of material fact in connection with a disciplinary matter in violation of Rule 8.1(a), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c), engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(d), and engaging in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute (2010 Rules).

A. Admitted Facts and Evidence Considered

In addition to the following evidence, we consider the evidence previously summarized.

Respondent gave a sworn statement to the ARDC on January 26, 2011, in which he testified as follows:

Q:    So for what period of time had [Antonina] moved out of your house and into the Clinton Street address?

A:    Probably four to six weeks, maybe.

Q:    So from when to when?

A:    I would say from the end of September, beginning of October or maybe November.

?

Q:    So it's your testimony here today that from the end of September 2003 until the end of November 2003 your mother-in-law resided full time at 501 North Clinton?

A:    That was my understanding.

Q:    Mr. Fleming, you lived at the house?

A:    No, I understand that . . . But she was not in my house. She was out of my house, moved out of my house, that is correct?

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A:    ? I saw that she had taken all her clothes and her personal belongings.

(Adm. Ex. 33 at 27, 28). Respondent gave a deposition at the ARDC on December 14, 2011, in which he clarified that Antonina had possibly moved out for longer than four to six weeks. (Tr. 122, 138, 698-99; Adm. Ex. 34 at 9-11).

 

We find that the Administrator did not prove by clear and convincing evidence that Respondent committed misconduct with respect to his sworn statement to the ARDC. Respondent's testimony that it "was" his understanding that Antonina lived full time at 501 N. Clinton between September and November 2003 leads us to conclude that he was testifying to what he understood in 2003, not what he understood at the time of his sworn statement. In the fall of 2003, Tanya told him, and he believed, that Antonina moved in with Beaudion. We find his testimony credible in this regard. Accordingly, the Administrator has not demonstrated that any part of Respondent's sworn statement testimony was false.

EVIDENCE IN MITIGATION AND AGGRAVATION

Mitigation

Respondent is a member of the Order of Malta, a service organization affiliated with the Catholic Church. He volunteers regularly in a soup kitchen, helps package medical supplies for those in need, and performs other charitable services. Thomas Mulligan and Thaddeus Makarewicz know Respondent through the Order of Malta and testified that he has a very good reputation for integrity and honesty. (Tr. 239-51, 553-57, 559).

Retired Circuit Court Judge Stuart Nudelman and current Circuit Court Judge Kathleen Pantle also testified that Respondent has a reputation for being honest and truthful. Judge Nudelman has known Respondent on a professional basis since 2002. Respondent appeared before Judge Nudelman and has had mediations with him after he left the bench. Respondent has

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a pending case before Judge Pantle and handled a previous case before her. (Tr. 141-43, 544, 547-48, 550).

Attorneys Ronald Boorstein and Thomas Karassik further testified that Respondent has an excellent reputation in the legal community. Boorstein was opposing counsel in a case that Respondent handled. He was impressed with Respondent and later referred three or four clients to him. Karassik hired Respondent to represent him in a complex commercial litigation matter. In Karassik's opinion, Respondent's character and truthfulness are excellent. (Tr. 514, 518-19).

Allison Renner, the CEO of an insurance brokerage division of a private equity firm, holds Respondent in the highest regard with respect to his truthfulness and honesty. She has known Respondent socially since 1996 or 1997. Respondent has performed some legal work for her and she has referred clients to Respondent. (Tr. 523, 525-26).

Respondent testified that he has performed "a lot" of pro bono work over the years. He is active in his church and became involved in the Order of Malta in 2006. Every four to six weeks he helps package medical supplies that are sent to other countries in need. He has joint custody of his daughter and has volunteered at her school. (Tr. 706-11).

Between the fall of 2003 and the spring of 2004, Respondent's mother was seriously ill. Respondent spent a significant amount of time talking with family members and his mother's physicians. Respondent's mother passed away on June 30, 2004, shortly after Respondent filed for divorce from Tanya. (Tr. 635, 666).

Aggravation

The Administrator presented evidence that, on April 24, 2006, Respondent filed a lawsuit against Antonina for alienation of Tanya's affections for Respondent. Respondent filed a similar lawsuit against two of Tanya's dance instructors, Yildirim Aksoy and Nelson Jones, with whom

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Tanya allegedly had extramarital affairs. The complaints included details about Tanya's sexual relationships with Aksoy and Jones and included as exhibits "sexually provocative" photographs. Respondent voluntarily dismissed his complaint against Antonina on June 6, 2007, and voluntarily dismissed his complaint against Aksoy and Jones on May 11, 2011. (Tr. 76, 77; Adm. Exs. 7, 14, 15, 22, 29).

Prior Discipline

Respondent has no prior discipline. (Tr. 592).

RECOMMENDATION

The purpose of disciplinary proceedings is not to punish an attorney but to protect the public, maintain the integrity of the profession, and safeguard the administration of justice from reproach. In re Gorecki, 208 Ill. 2d 350, 360, 802 N.E.2d 1194 (2003). When making our sanction recommendation, we consider the nature of the misconduct as well as the factors in mitigation and aggravation. Gorecki, 208 Ill. 2d at 360-61. We seek consistency in recommending sanctions for similar misconduct, but must evaluate each case on its unique facts and circumstances. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993).

The Administrator requests that Respondent's license be suspended for at least six months and up to two years depending on the number of misrepresentations found. Respondent asserts that, if we find misconduct, a censure would be an appropriate sanction.

The Administrator cites numerous cases in which attorneys received lengthy suspensions or were disbarred for engaging in dishonest conduct. In re Alschuler, 388 Ill. 492, 58 N.E.2d 563 (1944); In re Bell, 147 Ill. 2d 15, 588 N.E.2d 1093 (1992); In re Chandler, 161 Ill. 2d 459, 641 N.E.2d 473 (1994); In re Groezinger, 04 SH 143, M.R. 20606 (Mar. 20, 2006); In re Krakowski, 96 CH 823, M.R. 14228 (Jan. 29, 1998); In re Lewis, 138 Ill. 2d 310, 562 N.E.2d

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198 (1990); In re Montalvo, 98 SH 11, M.R. 16865 (Sept. 22, 2000); In re Niew, 98 CH 113, M.R. 17491 (May 25, 2001); In re Olivero, 98 SH 54, M.R. 17228 (Mar. 22, 2001); In re Passman, 93 CH 573, M.R. 12249 (Mar. 26, 1996); In re Reynolds, 32 Ill. 2d 331, 205 N.E.2d 429 (1965); In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978); and In re Zanayed, 08 CH 124, M.R. 23509 (Jan. 21, 2010).

Having found that Respondent engaged in only one instance of misrepresentation when he gave false testimony in the Immigration Court, we do not find the Administrator's cited cases applicable. We do not disregard the seriousness of giving false testimony, but conclude that the cases upon which the Administrator relies involve more extensive dishonesty than Respondent's or additional misconduct that was not present in this case. Moreover, we do not find aggravating circumstances that outweigh the mitigation in this matter. We do not consider Respondent's conduct with respect to the alienation of affection lawsuits to be aggravating. For these reasons, we decline to recommend a suspension in this case.

Censure may be appropriate when an attorney's false statement is an isolated occurrence and the attorney presents significant mitigating evidence. Respondent cites the following cases in support of a censure recommendation: In re Toohill, 99 SH 11, M.R. 16952 (Nov. 22, 2000); In re Grammer, 04 SH 119 M.R. 17766 (Jan. 18, 2002); and In re Myers 99 SH 88, M.R. 20521 (Jan. 13, 2006). The mitigating factors in these cases included impressive character testimony, evidence of community and charitable involvement, and otherwise distinguished legal careers without prior discipline. Similar mitigating factors are present in this case.

We find Myers particularly applicable. Myers received a censure for making false statements to the court in connection with the guardianship of two of his minor family members. Myers represented that he lived in a home with his wife when in fact they were separated and

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Myers lived elsewhere. Myers also falsely represented to the court that the boyfriend of one of the minors had an extensive history of violence and drug offenses. Myers' false representations affected the court's decisions on the guardianship matters. Nonetheless, the Hearing and Review Boards recommended that Myers receive a censure due to his evidence of good character and extensive mitigation, including significant community service and 25 years of practice without discipline. The Supreme Court ordered that Myers be censured. In re Myers 99 SH 88.

This matter resembles Myers in several respects. The misconduct in both cases arose from poor judgment in connection with personal matters. We believe that Respondent's judgment was clouded by the circumstances surrounding his divorce. While this does not excuse his misconduct, it leads us to conclude that, as in Myers, it was an isolated incident that is unlikely to recur. Also similar to Myers, Respondent has had an otherwise distinguished career for many years and presented impressive evidence of his character, reputation in the legal community, and involvement in charitable endeavors. See Myers, 99 SH 88, Hearing Board at 38-39.

We find that Respondent does not pose a threat to the public or the integrity of the legal profession, so a suspension would not serve the goals of the disciplinary system. A censure will adequately convey to Respondent that his conduct was unethical and will deter him and others from committing similar misconduct.

Therefore, we recommend that Respondent, Patrick Andrew Fleming, receive a censure.

Respectfully Submitted,

Henry T. Kelly
Andrienne D. Mebane

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1 See also Comment [1] to 2010 Rule 3.3(a)(1), "This rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal."

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Cheryl Kneubuehl, concurring in part and dissenting in part:

I dissent only as to the majority's findings related to the charge of engaging in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. I would consider this charge and find that Respondent's misrepresentations to the Immigration Court tended to defeat the administration of justice and to bring the legal profession into disrepute. I concur with the majority's remaining findings and recommended sanction.

Respectfully Submitted,

Cheryl M. Kneubuehl

CERTIFICATION

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 October 30, 2013.

Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois