Filed November 6, 2013
In re John Frank Harris
Commission No. 2012PR00026
Synopsis of Review Board Report and Recommendation
This matter arises out of Respondent's guilty plea and federal criminal conviction on one count of conspiracy to commit solicitation. 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.
After a hearing, the Hearing Board found Respondent committed a criminal act that reflects adversely on his honesty and fitness as a lawyer, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, assisted another lawyer in committing ethical violations, and engaged in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The Hearing Board recommended that Respondent be suspended for three years. The Hearing Board rejected the Respondent's request that the suspension be imposed retroactively to the date of his interim suspension.
Upon review, the Administrator asked that the Review Board recommend that Respondent be disbarred. After taking into account Respondent's extensive cooperation in the criminal matter as well as additional evidence in mitigation, the Review Board recommended that Respondent be suspended for three years. The Review Board also rejected Respondent's request that the suspension be imposed retroactively to the date of his interim suspension.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
JOHN FRANK HARRIS,
Commission No. 2012PR00026
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter arises out of Respondent's actions as chief operating officer and chief of staff for former Illinois Governor Rod Blagojevich ("Blagojevich") in conspiring with and assisting Blagojevich in engaging in corruption by soliciting and demanding things of value for the benefit of Blagojevich and his wife in exchange for the promise of an appointment of a United States Senator. As a result of Respondent's conduct in conspiring to solicit a bribe, he was charged and convicted of felony conspiracy to commit solicitation.
The only issue before this Board is the appropriate sanction recommendation. The Hearing Board recommended that Respondent be suspended for three years. The Administrator filed exceptions and seeks a recommendation of disbarment. Respondent asks that this Board recommend a sanction of no more than three years and that the suspension run retroactive to April 6, 2010, the date of Respondent's interim suspension. For the reasons set forth below, we agree with the Hearing Board's assessment of the mitigating evidence and conclude that a three year suspension is warranted.
In December 2005, then Illinois Governor Rod Blagojevich hired Respondent as chief operating officer for Blagojevich. In January 2006, after the departure of Lon Monk from the position, Blagojevich appointed Respondent chief of staff.
At first, Blagojevich was running for his second term as Governor and Respondent had little interaction with him. As chief of staff, Respondent was responsible for overseeing the day-to-day operation of the State government. Over time, following Blagojevich's re-election in 2006, Respondent became one of Blagojevich's more trusted advisors. He answered questions and collected information for Blagojevich and assisted Blagojevich in formulating the State budget. Because Blagojevich's priorities sometimes conflicted with the priorities of members of the General Assembly and other officials, Blagojevich often asked Respondent to handle negotiations with other elected officials and influential leaders. As a result, Respondent's duties and responsibilities expanded and Respondent began spending much of his time talking on the phone with Blagojevich.
In 2008, Blagojevich began to tire of his job as Governor and began to discuss his political and economic future with Respondent. Blagojevich's campaign chest was dwindling and his ability to raise additional campaign funds, which also covered his legal expenses in what he knew to be a federal probe of his administration, was limited by the passage of new ethics laws. Blagojevich became interested in securing a job that would offer financial security and would not hurt his chances at a political future.
Blagojevich's criminal acts have been well documented in his criminal proceedings. While Respondent was not involved in most of the allegations of the criminal complaint, he was intimately involved in what was arguably the most notable charge?the
attempt by Blagojevich to obtain something of value in exchange for the appointment to the Senate seat vacated by Barack Obama. In the summer of 2008, Obama became the clear choice as the Democratic nominee for President. Blagojevich knew if Obama were elected President, Blagojevich would appoint someone to fill Obama's U.S. Senate seat. At first, during the summer 2008, Blagojevich considered appointing himself or Illinois State Senator Emil Jones to the seat. Blagojevich considered exchanging with Jones the Senate seat for Jones' campaign fund, as Jones had a substantial campaign fund. After Jones blocked Blagojevich's efforts to stop the ethics legislation, Blagojevich withdrew his support of Jones for the Senate seat.
In October 2008, Blagojevich asked Respondent what he could get for the Senate seat. Respondent replied that he could make an ally or reward an ally but that Blagojevich could not trade the Senate seat for something for himself. Respondent testified that in October 2008, he and William Quinlan, Jr., general counsel for Blagojevich, had another discussion with Blagojevich about receiving a substantial donation in exchange for the appointment. According to Respondent, Quinlan told Blagojevich that he could not exchange the appointment for money and advised him not to even joke about the matter.
Nevertheless, in the fall of 2008, Blagojevich became obsessed about the Senate seat matter. At about this time, the federal government received authorization to record Blagojevich's phone calls as part of their criminal investigation. In the first of the recorded calls, Respondent and Blagojevich discussed the Senate seat. Blagojevich indicated that it was good that Obama had a preference for someone to fill the seat and asked Respondent, "Now, we should get something for that, couldn't I?" Respondent replied, "Yes."
As noted by the Hearing Board, it is clear from the audiotapes that Respondent was a willing participant in the discussions with Blagojevich. As opposed to his conversations
before he was being recorded, Respondent did not voice any real concerns during the recorded discussions as to Blagojevich's suggestions that he exchange the Senate appointment for something of personal value to him. Indeed, at times, Respondent offered suggestions and proposals to further the plan by suggesting additional means by which Blagojevich could obtain personal benefits for himself.
The telephone conversations are discussed in the Hearing Board's Report with greater specification. In summary, by early October 2008, Respondent participated in regular and lengthy conversations with Blagojevich about what personal benefits Blagojevich and his wife could obtain in exchange for naming someone to the U.S. Senate seat should Obama win the Presidency. Prior to the election, Respondent routinely discussed with Blagojevich what Blagojevich could get for himself in exchange for the Senate seat appointment. At the time of the election, the conversations became more detailed and increased in frequency. Blagojevich and Respondent discussed Blagojevich obtaining a Cabinet post, an ambassadorship, and a position with a private foundation in exchange for appointing various individuals to the Senate seat. They discussed not making their "asks" look like a quid pro quo. They discussed making their "asks" look as if Blagojevich was seeking a position to further his governing agenda. They discussed possible salaries of the various positions.
Immediately following Obama's election, Respondent prepared talking points for Blagojevich that were incorporated into a public statement. The public statement provided that Blagojevich would follow a "thoughtful and deliberate process" in making the appointment, and that he had formed a "senate search team" made up of key members of his administration to identify suitable candidates. The statement listed criteria the search team would be using to select a person with the requisite skills and integrity to serve the people of Illinois. While Respondent
claimed at hearing that he did not know that the public statement was false when he assisted in preparing it, he clearly knew that Blagojevich was not following the process outlined to the public.
On November 6, 2008, Respondent suggested that Blagojevich become the national coordinator for the Service Employee International Union (SEIU) Change to Win campaign. Blagojevich could seek the position through supporters of President-Elect Obama in exchange for naming someone favorable to Obama to the Senate seat. Respondent explained to Blagojevich that the Change to Win position would keep Blagojevich politically viable, provide him with union support should Blagojevich seek another elected office, and would provide him with a salary. In further discussions, Respondent and Blagojevich discussed that the Change to Win idea would result in no obvious quid pro quo for the Senate seat. They then arranged a meeting with selected union officials. Blagojevich became less excited about this option when he learned the position paid only $125,000 to $150,000 annually.
On or about November 12, 2008, the media reported that one of the Senate candidates was going to work in the White House. Respondent participated in a number of conversations with Blagojevich about this development. Blagojevich became anxious about losing leverage to obtain something in exchange for the Senate seat. Eventually, Blagojevich asked Respondent to have an "off campus" discussion with another Senate candidate, which Respondent took as a reference to ask the candidate for his remaining campaign funds in exchange for the appointment. Respondent met the candidate. Although he did not directly ask him for the funds, after the meeting, Respondent believed that the candidate was on notice that, in relation to the Senate seat, Blagojevich was going to talk with the candidate about the campaign funds.
On December 4, 2008, Blagojevich told Respondent that another Senate candidate, had offered, through a third party, to raise $1.5 million in campaign funds for Blagojevich in exchange for the Senate appointment. Although Respondent told Blagojevich that the campaign funds should not be a factor in his decision, he knew that Blagojevich would then seriously consider the candidate because of the offer of campaign funds.
At no time following any of these conversations did Respondent go to the authorities, quit his job, or tell Blagojevich that he would not assist him. Although Blagojevich sometimes referred to Respondent as the "Prince of Darkness" because Respondent usually dissented from what Blagojevich suggested, during the recorded phone conversations in November and December regarding the Senate appointment, Respondent rarely dissented and instead actively engaged in the scheme.
Also in November, Respondent learned from lobbyists and other interested parties that Blagojevich was holding up the signing of a racetrack bill passed by the legislature. After making some e-mail inquiries, Respondent concluded that Blagojevich had no legitimate reason to hold up the bill. He became 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. On December 2, 2008, he confirmed his suspicions but did not report what he had learned to the authorities.
Finally, in November and December 2008, Blagojevich directed Respondent to tell someone at the Chicago Tribune that the state would hold up financial support to the Tribune Company and the sale of Wrigley Field if the Tribune failed to fire people on the editorial board at the paper. Blagojevich was angry with the Tribune because of a number of critical editorials. Although Respondent did have a conversation with someone at the Tribune about the negative
editorials, he refused to relay the threats as directed by Blagojevich. He did not tell Blagojevich that he did not relay the threats.
On December 9, 2008, Respondent and Blagojevich were arrested at their respective homes. Respondent was taken to the Chicago office of the FBI. After signing a waiver, Respondent was interviewed by two FBI agents. The agents initially asked Respondent about the Chicago Tribune matter. Respondent answered those questions, but when the questioning turned to the appointment of the Senate seat, he declined to answer. Respondent told the agents the conversations were privileged because Respondent's general counsel had been present in some of the conversations. When told that the privilege did not apply, Respondent asked to stop the interview.
Respondent thereafter agreed to cooperate with the federal government and was extremely forthcoming. He testified he had over 30 meetings with the federal government and took his cooperation very seriously. His cooperation was instrumental in obtaining the conviction of Governor Blagojevich. After the U.S. Attorney's Office filed a superseding indictment, Respondent pled guilty to conspiring to corruptly solicit and demand things of value for the benefit of Blagojevich in connection with the appointment of a U.S. Senator. On May 24, 2010, Respondent entered into another plea agreement, in which he pled guilty of conspiracy to commit solicitation. Respondent became one the primary witnesses against Blagojevich at Blagojevich's two criminal trials. In exchange for his testimony, the U.S. Attorney's Office agreed to recommend a lenient sentence.
At his sentencing hearing before Judge Zagel, Respondent offered more than forty letters from co-workers, friends and family members attesting to his character. Several people noted the difficulty of working for Governor Blagojevich. Judge Zagel acknowledged that
Respondent had a difficult, and perhaps unstable, boss in Blagojevich. Judge Zagel noted that many of the day-to-day details of governing the state fell to Respondent and that Respondent had performed those duties. Judge Zagel, who had also served as a top advisor to elected officials, stated, "So the truth is, I can't sit here and say to you that if I had been in your position, the results would have been any different except in one respect, I would have left sooner, much sooner." Judge Zagel noted that Respondent's responsibilities for handling daily details of operating the government were regarded by Respondent as worthwhile and so he understood why Respondent might have wanted to remain in his position.
Judge Zagel noted Respondent's significant cooperation with the federal government. Judge Zagel also noted Respondent's recent attempts at repairing his life by finding a job as an electrician. Respondent took a night job as an apprentice electrician to support his family and to allow for his almost daily meetings with U.S. Attorney's Office. Given his significant and important cooperation, Judge Zagel sentenced Respondent to only ten days in prison, two years supervised release, a $100 special assessment and a $1,000 fine.
Respondent's felony conviction is conclusive evidence of his guilt of the crime. See, Supreme Court Rule 761(f); In re Ciardelli, 118 Ill.2d 233, 514 N.E.2d 1006 (1987); In re Rolley, 121 Ill.2d 222, 520 .E. 2d 302 (1988). The Hearing Board concluded, and the parties do not dispute, that Respondent committed a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in violation of Rule 8.4(a)(3). The Hearing Board found that Respondent's crime was essentially a conspiracy to solicit bribes and was an intentional crime. The Hearing Board also concluded that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) and assisted another to violate the Rules of Professional Conduct in violation of Rule 8.4(a)(2). The
Hearing Board concluded that Respondent's conduct brought the legal profession into disrepute and caused the public to doubt the integrity of the bar.
The Hearing Board's recommendation as to a sanction is advisory. In re Ingersoll, 186 Ill.2d 163,178, 710 N.E.2d 390 (1999). However, the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Chandler, 161 Ill.2d 459, 472, 641 N.E. 2d 473 (1994). 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). The purpose of the attorney disciplinary system is not to punish the attorney for his or her 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).
Unquestionably, Respondent's misconduct in knowingly and actively participating in a criminal conspiracy with the sitting governor of Illinois is serious and warrants a severe sanction. Given that Respondent was an attorney at the time of his participation in public corruption, his conduct is "particularly reprehensible." See, e.g., 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).
In aggravation of the misconduct, the Hearing Board found that Respondent's wrongdoing did not involve a momentary lapse of judgment. He had ample time to contemplate the implications of his conduct and the conduct of others. He did not voluntarily withdraw from the conspiracy or report the conduct to the authorities. Cf., In re Goodman, 93 CH 492 (Review
Bd., May 18, 1995), Administrator's leave to file petition for leave to file exceptions denied, No. M.R. 11497 (Sept. 29, 1995). In addition, Respondent was a high-ranking public official at the time at the time of his misconduct. Accordingly, he not only violated the law but he breached the public's trust as well. See, e.g., In re Armentrout, 99 Ill.2d 242, 457 N.E.2d 1262 (1983).
However, Respondent has offered impressive mitigation evidence. Respondent has not been previously disciplined and has had a distinguished career as a public servant. He presented extensive evidence of his exemplary military background and his prior involvement in public service. He is active in his church. Many, many witnesses testified to Respondent's charitable work and to his good character and reputation. Since his conviction, he has been employed as a linesman's apprentice electrician and has been active in his sons' lives. As found by the Hearing Board, he has taken genuine and positive steps to rebuild his life since his conviction.
The Hearing Board also found in mitigation that Respondent was not the initial instigator or the primary intended beneficiary of the scheme. This was evidenced by the fact that the federal government characterized Respondent as a minor participant in the criminal activity for purposes of sentencing. The Hearing Board noted, however, "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."
Most importantly, in mitigation, Respondent has acknowledged his misconduct. As noted by the Assistant United States Attorney who testified at hearing, Respondent was always forthcoming and helpful. His cooperation was extensive and unquestionably valuable to the government. Respondent was a primary witness against Blagojevich at both of his criminal trials. His cooperation extended over a period of three years and involved several hundred hours
of his time. Respondent's cooperation resulted in a downward departure from the sentencing guidelines and a lenient sentence by Judge Zagel.
Several similar cases present precedent for the imposition of a significant sanction. In In re Cetwinski, 143 Ill.2d 396, 574 N.E.2d 645 (1991), the respondent paid fees to his former supervisor, Eugene Armentrout, in exchange for the referral of business from the Village of Streamwood. At the time, Armentrout was suspended from the practice of law. Cetwinski also made payments to the manager of the Village of Streamwood, Edward Emond, whose approval he needed in order to submit certain documents to the Village Board. Cetwinski obtained the money to pay Emond by billing the Village of Streamwood for monthly meetings with Emond that did not actually take place. Cetwinski ceased making the payments to Emond. Some time later, the IRS initiated an investigation of the payments. Initially, he lied to the federal authorities, but he subsequently cooperated with the government and testified against Emond. Cetwinski was convicted of conspiring to make an unlawful payment to Emond and claiming the unlawful payment as a business deduction on his tax return. In mitigation, the Court noted Cetwinski's extensive cooperation in the federal case, his unilateral decision to cease engaging in the criminal conduct, his remorse, and his "flawless" reputation. The Court suspended Cetwinski for three years.
The respondent in In re Falcon, 08 CH 82, petition to impose discipline on consent allowed, No. M.R.23255 (Sept. 22, 2009), was suspended for three years on consent for participating in a 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. She had not been previously disciplined.
In a recent case, also arising out of the Operation Board Games federal investigation, In re Glennon, 2009PR000137 (Review Bd., June 21, 2013), Administrator's petition for leave to file exceptions denied, (Sept. 25, 2013), the Court suspended an attorney for three years following his conviction for one count of misprision of a felony. Glennon owned a company that provided extensive financing and consulting services to the Chicago Medical School (CMS) related to the possible construction of a new campus, Glennon was retained at the request of Stuart Levine, who was a trustee for CMS along with Jacob Kieferbaum. Glennon was not paid for his services. CMS obtained bond funding to proceed with development of the project and entered into a construction contract with a company owned by Kieferbaum. Kieferbaum suggested that he inflate his contract price by $1 million in order to compensate Glennon for his unpaid work. Glennon entered into the contract with Kieferbaum, even though he knew the payment to him was a misapplication of the proceeds of the tax exempt bonds. He subsequently accepted about $700,000 in monthly payments from Kieferbaum's company. After the federal authorities contacted him he cooperated fully and pled guilty to misprision of a felony for failing to report Levine and Kieferbaum to the federal authorities. He was sentenced to probation, a fine of $20,000 and community service.
Like the attorneys noted above and like the attorneys cited in other cases by the Administrator, Respondent engaged in serious misconduct. However, we are particularly moved by Judge Zagel's comments at Respondent's sentencing hearing and by the mitigation offered by the Respondent. Accordingly, while Respondent's misconduct warrants a significant sanction,
we believe that Respondent's actions were a blemish in an otherwise commendable career and we believe that, after serving a period of suspension, Respondent will not again be before this Board. Accordingly, we agree with the Hearing Board that Respondent should be suspended for a period of three years. Such a recommendation recognizes the seriousness of the misconduct and adequately serves the purposes of discipline.
Respondent asks that if this Board recommends a suspension, that the suspension be retroactive to the date of his interim suspension. The Court recently refused a similar request in the Glennon matter. We do not believe that this is an appropriate matter in which to impose a retroactive sanction, given the seriousness of the misconduct.
For the above reasons, we recommend to the Court that the Respondent, John Frank Harris, be suspended from the practice of law for three years.
Robert M. Henderson
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 onNovember 6, 2013.
Kenneth G. Jablonski, Clerk of the