Filed December 5, 2018
In re Raymond L. Prusak
Supreme Court No. M.R. 28736
Commission No. 2017PR00042
Synopsis of Hearing Board Report and Recommendation
This matter came before the Hearing Board on Petitioner's petition for reinstatement. The Administrator objected to the petition. The Hearing Board found Petitioner met his burden of proving by clear and convincing evidence that he is fully rehabilitated and possesses good character and knowledge of the law. Petitioner has maintained his sobriety and demonstrated full acceptance of responsibility for the conduct that led to his suspension and the revocation of probation. Through character testimony and evidence of his employment in the addiction and mental health fields, Petitioner established that his conduct since discipline was imposed has been commendable. The Hearing Board found Petitioner's overall presentation of evidence to be candid and forthright, despite a few omissions in the petition for reinstatement. Consequently, the Hearing Board recommended that Petitioner be reinstated, subject to conditions.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
RAYMOND L. PRUSAK,
Supreme Court No. 28736
Commission No. 2017PR00042
REPORT AND RECOMMENDATION OF THE HEARING BOARD
SUMMARY OF THE REPORT
Petitioner seeks reinstatement following a suspension until further order of the Court. We find Petitioner proved he is rehabilitated and meets the requirements for reinstatement. We recommend he be reinstated to the practice of law with conditions.
A hearing on the Petition for Reinstatement of Raymond L. Prusak was held on June 27 and 28, 2018 at the offices of the Attorney Registration and Disciplinary Commission before a hearing panel consisting of Carl E. Poli, Chair, Carrie A. Durkin and Cheryl M. Kneubuehl. Petitioner appeared and was represented by Stephanie L. Stewart. The Administrator was represented by Albert S. Krawczyk.
UNDERLYING DISCIPLINARY PROCEEDING
In 2006, Petitioner was charged with committing misconduct in nine criminal matters. The misconduct included engaging in a conflict of interest and providing ineffective assistance of counsel, neglect, failing to refund unearned fees, failing to supervise associates, and making misrepresentations to clients. On November 20, 2008, pursuant to a petition to impose discipline
on consent, the Court suspended Petitioner for three years and until further order of the court, with the suspension stayed after the first six months by a period of probation. Following two failed drug screens, the Court enforced a rule to show cause and revoked Petitioner's probation on July 9, 2010.
PETITION AND OBJECTIONS
On May 2, 2017, Petitioner filed a Petition for Reinstatement (Petition). The Administrator filed Objections to the Petition on April 4, 2018.
Petitioner testified on his own behalf and presented the testimony of Thomas Cicero, Lauren Hoffman, Shelby Prusak, Scott Gershan, M.D., Hon. Peter Vilkelis, Erin Borders, and Todd Bergmann. Petitioner's Exhibits 1, 2, 3, and 6 and Administrator's Exhibits 1-50 were admitted into evidence.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
An attorney seeking reinstatement to the practice of law has the burden of proving by clear and convincing evidence that he meets the requirements for reinstatement. In re Richman, 191 Ill. 2d 238, 730 N.E.2d 45 (2000). There is no presumption in favor of reinstatement, and the mere passage of time is not a sufficient basis for granting the petition. Richman, 191 Ill. 2d at 247-48.
Supreme Court Rule 767(f) sets forth the following factors to be considered in determining whether reinstatement is warranted:
the nature of the misconduct for which the petitioner was disciplined;
the maturity and experience of the petitioner at the time discipline was imposed;
whether the petitioner recognizes the nature and seriousness of the misconduct;
when applicable, whether petitioner has made restitution;
the petitioner's conduct since discipline was imposed; and
the petitioner's candor and forthrightness in presenting evidence in support of the petition.
Keeping these factors in mind, we consider the evidence to determine whether Petitioner has established rehabilitation, present good character and current knowledge of the law.
Petitioner was licensed to practice law in Illinois in 1980. He started his own firm in 1982 and practiced exclusively in the area of criminal defense. (Tr. 84-86). At the time discipline was imposed in 2008, he was fifty-two years of age and had been practicing law for 28 years.
Petitioner used cannabis every day from the time he was in college until 2006. He began using alcohol at age sixteen. Between 1999 and 2006, he had five to seven drinks per day. He did not use cannabis or alcohol during the work day while practicing law. (Tr. 396-98). During the time period leading up to his suspension, Petitioner's alcohol use escalated and he was experiencing depression and anxiety. (Tr. 98-100).
I. Nature of misconduct for which Petitioner was disciplined.
A. Evidence Considered
Between 2002 and 2006, Petitioner engaged in misconduct in nine cases in which he represented criminal defendants. In one matter, Petitioner represented co-defendants Tracy Chambers and Corian White, who were charged with armed robbery and aggravated unlawful restraint. Petitioner did not disclose the conflict and did not obtain waivers of the conflict from either co-defendant. At trial, Petitioner cross-examined a witness in such a way as to cast doubt on the identification of Chambers and solidify the identification of White. Chambers was found
not guilty, and White was found guilty and sentenced to six years in prison. The appellate court reversed White's conviction on the ground that Petitioner provided ineffective assistance of counsel because he engaged in an actual conflict of interest.
In addition, Petitioner neglected the criminal appeals of Tyrone McHatten, Juan Aceves and Herman Smith. Petitioner assigned associates to work on the appeals but failed to supervise them. The associates did not pursue the appeals in a timely manner. Petitioner failed to refund the $7,000 fee he received from Aceves and the $6,000 fee he received from Smith's mother. He also made false statements to Aceves's sister, Smith's mother, and the ARDC in connection with both the Aceves and Smith investigations.
Petitioner neglected the criminal matters of Emmanuel Reyes, Patrick Hamilton, Jerry Stadeker, Marcus Anthony, and Larry Lisek. He made misrepresentations to Stadeker and Anthony when they inquired about the status of their cases and to the ARDC during the course of the disciplinary investigations. He failed to refund $1,250 of the attorney's fee he received from Hamilton. Petitioner also used inappropriate language toward clients and their families.
After the Administrator began investigating his conduct, Petitioner sought a chemical dependency evaluation and treatment at Rush Behavioral Health Center. He was admitted into an intensive outpatient program under the care of Dr. Roueen Rafeyan. Dr. Rafeyan diagnosed Petitioner with alcohol dependence, cannabis dependence, attention deficit hyperactivity disorder and anxiety disorder. Dr. Rafeyan opined that Petitioner's misconduct was causally related to these conditions. Petitioner was discharged from the outpatient program, having successfully completed the treatment goals. He continued with an aftercare program, individual therapy, and group therapy. (Tr. 104).
On November 18, 2008, pursuant to a joint petition to impose discipline on consent, the Court suspended Petitioner for three years and until further order of the Court, with the suspension stayed after six months by probation subject to numerous conditions.
Petitioner relapsed with cannabis in December 2009. At the time of the relapse he was undergoing individual therapy. He did not report the relapse to the Administrator, but it was discovered after a failed drug screen. (Tr. 107-108). Petitioner had another failed drug screen in April 2010, after a second relapse with cannabis. (Tr. 111).
On July 9, 2010, the Court entered an order enforcing a rule to show cause against Petitioner for violating the conditions of his probation by using cannabis and failing to report that he did so. The Court revoked Petitioner's probation, vacated the stay of his suspension, and suspended Petitioner for the remaining two and one-half years of his suspension and until further order of the Court.
B. Analysis and Conclusions
The seriousness of a petitioner's misconduct is an important consideration which cannot be minimized by subsequent exemplary conduct. Richman, 198 Ill. 2d at 245. Petitioner engaged in extensive misconduct by neglecting client matters and otherwise failing to provide appropriate representation in nine criminal cases. Because neglecting a criminal case puts a client's liberty and constitutional rights in jeopardy, the Court considers such misconduct to be more serious than neglect of civil cases. See In re Hall, 95 Ill. 2d 371, 447 N.E.2d 805 (1983). Petitioner's misrepresentations to clients and the Administrator also constitute serious misconduct.
We consider that attorneys who have committed even more egregious misconduct than Petitioner, including fraud and criminal activities, have been reinstated. See, e.g., In re Martinez-Fraticelli, 221 Ill. 2d 255, 850 N.E.2d 155 (2006) (attorney convicted of theft related to
his participation in ghost payrolling scheme); In re Neppl, 09 RT 3002, M.R. 22990 (Sept. 20, 2011) (attorney convicted of conspiracy to distribute cocaine and distribution and possession with the intent to distribute cocaine). Likewise, attorneys who have overcome addictions have been reinstated. See Neppl, 09 RT 3002; In re Reese, 2010PR00092, M.R. 24012 (Mar. 19, 2012); In re Stepter, 2007 RT 3008, M.R. 21968 (Sept. 22, 2009).
While Petitioner's misconduct was quite serious, we do not find it to be so egregious as to bar reinstatement. The evidence established that the misconduct and the relapses that led to the revocation of probation were causally related to Petitioner's mental health issues and addictions to alcohol and cannabis. Having considered these factors in conjunction with the evidence of Petitioner's recovery and the fact that seven years have passed since the Court imposed the suspension of two and one-half years and until further order of the court, we conclude that the nature of Petitioner's misconduct does not preclude reinstatement.
II. Petitioner's maturity and experience at the time discipline was imposed.
A. Evidence Considered
Petitioner had been licensed to practice law for approximately 28 years and was 52 years of age at the time discipline was imposed. As noted above, the Petitioner's misconduct was causally related to his ADHD, substance abuse, and psychiatric problems. (Adm. Ex. 2 at 1, 12).
B. Analysis and Conclusions
Petitioner was a mature and experienced attorney who should have appreciated the impropriety of his actions and used better judgment. Nevertheless, it is appropriate for us to give some weight to Petitioner's addiction and mental health issues as circumstances that influenced his judgment and actions. See In re Cirignani, 2015PR00029, M.R. 027370 (Sept. 22, 2017) (Hearing Bd. at 7); In re Lange, 2012PR00063, M.R. 25388 (Sept. 25, 2013) (Hearing Bd. at 10-11). We also consider that attorneys have been reinstated to the practice of law despite the fact
that they were mature and experienced when they committed misconduct. See Martinez-Fraticelli, 221 Ill. 2d 255. Accordingly, we find that Petitioner's maturity and experience do not preclude his reinstatement.
III. Petitioner's recognition of the nature and seriousness of the misconduct.
A. Evidence Considered
Petitioner admits he committed the misconduct with which he was charged and admits his impairments negatively impacted every aspect of his life. (Tr. 394). He expressed feelings of embarrassment and shame with respect to his prior conduct. He regrets he did not always treat clients in a respectful and professional manner. (Tr. 96). Petitioner described his decision to use marijuana in 2010 while on probation as "the biggest mistake I ever made in my life." (Tr. 416). He realizes he let down everyone in his life and brought the legal profession into disrepute. (Tr. 97-98).
B. Analysis and Conclusions
"Expressions of remorse and acknowledgements of wrongdoing are indications that an attorney recognizes his misconduct." In re Gonzales, 2013PR00003, M.R. 25825 (Mar. 12, 2015) (Hearing Bd. at 15). We found Petitioner to be sincerely remorseful. Based on his words and his actions, it is clear he recognizes and appreciates why his conduct was harmful to his clients, the legal profession, his family, and himself. He takes full responsibility for his past behavior. Accordingly, we find this factor weighs in favor of reinstatement.
IV. When applicable, whether petitioner has made restitution.
A. Evidence Considered
The Court ordered Petitioner to pay restitution to three former clients in the amounts of $7,000.00, $6,500.00, and $1,250.00. Petitioner made the required restitution payments prior to
the end of his six-month suspension. (Tr. 106-107). He also reimbursed the Commission's Client Protection Program in the amount of $5,850.00 for four claims made by former clients.
Petitioner owes the Internal Revenue Service (IRS) $38,840.00 for back taxes, penalties, and interest in connection with an IRA distribution Petitioner took in 2012, in the amount of $132,601.90. Petitioner did not report the distribution income to the IRS until 2016. When asked why he did not report the IRA distribution, Petitioner answered that his life was "a wreck" at the time. (Tr. 424).
Petitioner filed an amended tax return after the issue of the IRA distribution was raised at his deposition in this proceeding. (Tr. 342). He has agreed for the IRS to deduct $530.00 per month from his bank account until he has satisfied his tax obligation. (Tr. 343-44).
B. Analysis and Conclusions
It is undisputed that Petitioner made all required restitution to his former clients and has reimbursed the Client Protection Program. Nonetheless, the Administrator asserts he still owes restitution in the form of unpaid taxes and penalties on the IRA distribution income he received in 2012 and reported in 2016. We disagree. Petitioner paid all amounts the Court required him to pay. The unpaid taxes are not related to Petitioner's disciplinary proceeding, so we do not consider them to be part of his restitution obligation. However, we will further address the tax obligation below as it relates to other reinstatement factors.
V. Petitioner's conduct since discipline was imposed.
A. Evidence Considered
Mental Health and Substance Abuse
Petitioner became very depressed after his second failed drug screen. He had a plan to commit suicide but changed his mind and admitted himself to Chicago Lakeshore Hospital on April 2010. (Tr. 419). After being discharged from the hospital, Petitioner began an intensive
outpatient program with psychiatrist Dr. Martin Paisner. Following the completion of the intensive outpatient program, Petitioner followed an outpatient treatment program that included medication management sessions with Dr. Paisner, weekly therapy sessions, almost daily 12-step meetings, weekly drug screening, and active work with his sponsor. He continued to see Dr. Paisner until March 2014. Petitioner did not follow the conditions of his probation after probation was revoked. (Tr. 400).
Regarding his risk of relapse, Petitioner testified he is at a stage where he has no desire to use alcohol or marijuana. In addition, he now knows how to deal with stressors that might have led him to relapse in the past. To avoid relapse, he relies on his work, exercise, going to meetings, talking with sober friends, and mindfulness. (Tr. 385-86).
Marriage and Family
Petitioner is legally separated from Shelby Prusak. Ms. Prusak and Petitioner have two adult children. Petitioner has a daughter from his previous marriage to Melinda Malecki, who is also an attorney. (Tr. 80-81).
Ms. Prusak is a criminal defense attorney. She occasionally worked on cases with Petitioner prior to his suspension. She never observed that Petitioner was under the influence of drugs or alcohol while representing a client. (Tr. 153). Petitioner drank alcohol after work as a way to relax. (Tr. 152). Ms. Prusak and Petitioner had many conversations about his disciplinary case. He expressed that he felt ashamed, remorseful and had broken his clients' trust. (Tr. 155). Ms. Prusak took over Petitioner's practice while he was serving his six-month suspension. (Tr. 157).
When Petitioner told Ms. Prusak of his failed drug screen, he expressed that he was suicidal and had feelings of despair, regret, guilt, remorse, and shame. (Tr. 160). When Petitioner was notified that his probation was revoked, he was "completely broken." (Tr. 164).
Ms. Prusak and Petitioner were experiencing difficulties in their marriage at the time of the failed drug screens. Petitioner moved out of the marital residence in April 2011. Ms. Prusak had minimal contact with Petitioner during the first couple of years after he moved out. (Tr. 166). They became more involved in each other's lives after a couple of years. Ms. Prusak feels Petitioner changed as a result of everything he has been through. He has become more humble, realistic and grateful for what he has. (Tr. 168).
Ms. Prusak and Petitioner have discussed the possibility of him practicing law with her if he should be reinstated. Ms. Prusak has been running Petitioner's former practice, now called Prusak Law Group, for nine years. (Tr. 169). She believes Petitioner is worthy of another chance to practice law. (Tr. 173). If Petitioner were to come to her practice, he would be her associate and would work under her supervision. (Tr. 170, 195). He would not be involved with the firm finances. Ms. Prusak would continue to be in charge of talking to the clients and their families until a rapport developed with Petitioner. (Tr. 197).
Petitioner's father passed away in January 2011. Petitioner lived with his mother from 2013 until her death in April 2017. He cared for her after she had a stroke in February 2016. He also helped care for his sister, who had ovarian cancer and passed away in 2015. (Tr. 138-141). Petitioner did not relapse with alcohol or marijuana during the time of his family members' illnesses and deaths. (Tr. 142).
Scott Gershan, M.D., a psychiatrist at Rush University Medical Center, was retained by the Administrator to evaluate Petitioner and provide an opinion whether he is fit to practice law. (Tr. 204). Dr. Gershan interviewed Petitioner on January 12, 2018, and issued a written report on January 26, 2018. (Adm. Ex. 14).
Dr. Gershan felt Petitioner was forthcoming and honest in response to questions. (Tr. 207-208). Dr. Gershan diagnosed Petitioner with cannabis use disorder in sustained remission, alcohol use disorder in sustained remission, unspecified anxiety disorder in sustained remission, unspecified depressive disorder in sustained remission, and unspecified personality disorder. (Tr. 214-220).
In Dr. Gershan's opinion, Petitioner is not suffering from depression or anxiety symptoms that require medication management at this time. (Tr. 222). He does not exhibit any psychiatric symptoms or behavioral impairment that would render him unable or unfit to practice law. (Tr. 223). Petitioner's misconduct was causally related to multiple factors including substance use, personality traits, and suboptimal practice standards.
Petitioner's current risk of relapse is low. (Tr. 228). Consistent attendance at Marijuana Anonymous and Alcoholics Anonymous would significantly mitigate any risk of relapse. (Tr. 230-31). Other factors that mitigate the risk are the length of Petitioner's sobriety, his motivation to remain sober, his lack of severe psychiatric symptoms, the structure and stability provided by his job, his work with the addiction community, and his advanced understanding of relapse prevention. (Tr. 232).
Dr. Gershan believes the following conditions should be imposed if Petitioner is allowed to be reinstated to the practice of law: attending individual therapy on a weekly basis, cooperating in random drug screens, working with a mentor through a law practice management program, abstaining from alcohol and other illicit substances, and regularly attending Alcoholics Anonymous and Marijuana Anonymous meetings with sponsorship. Dr. Gershan believes Petitioner should attend 12-step meetings at least weekly, initially. In Dr. Gershan's opinion, it
would be necessary for Petitioner to have someone other than Ms. Prusak as a mentor. (Tr. 224-228).
Petitioner is willing to comply with all of Dr. Gershan's conditions. He currently attends a 12-step program about once a week. (Tr. 383-84). He has not used alcohol since 2006 has not used cannabis since 2010. He no longer has the urge to use either substance. (Tr. 119-20).
After his probation was revoked, Petitioner tried to earn a living in the roofing business and as a day trader. (Tr. 351). While day trading he lost all of the funds he had. In 2014, he went to work for Riveredge Hospital, which is a behavioral health or psychiatric hospital. (Tr. 352-53).
The Riveredge job application asked whether Petitioner had a professional license suspended or revoked. Petitioner answered, "NA." (Tr. 309). Petitioner listed Prusak Law Group as prior employment experience and indicated he was "retired from the practice of law." (Tr. 313). Petitioner testified he wrote "NA" on the application because he believed his law license was not applicable to the position. He stated he was retired from the practice of law because in his mind he had "retired and given up." In hindsight he realizes he should have written that he was suspended from the practice of law. (Tr. 356).
Todd Bergmann, Coordinator of Therapeutic Services at Riveredge Hospital, hired Petitioner as a mental health associate. (Tr. 304). Bergmann testified that the fact Respondent had his law license suspended was not directly relevant to the position of mental health associate. (Tr. 310). Bergmann became aware of Petitioner's suspension before hiring him, and that knowledge did not cause Bergmann to change his decision. (Tr. 311). Bergmann did not consider Petitioner's statement that he was retired from the practice of law to be the type of misrepresentation that would preclude him from hiring Petitioner. (Tr. 331).
As a mental health associate, Petitioner was responsible for observing patients, talking with patients individually, assisting with basic needs such as meals and hygiene, and teaching life skills and coping skills to groups of patients. (Tr. 360-362). There were occasions when patients physically attacked Petitioner. The job was stressful but Petitioner loved it because he felt he was making a difference in people's lives. (Tr. 363). Petitioner's salary as a mental health associate was $15 to $16 an hour. (Tr. 358).
Bergmann was Petitioner's direct supervisor until mid-2017. (Tr. 312). Within the first two years of his employment, Petitioner became one of the stronger staff members on his unit and was selected to participate in advanced training in verbal de-escalation. (Tr. 306-308). Bergmann never saw Petitioner exhibit problems with anger management, even though his job was highly stressful. (Tr. 326).
With respect to interpersonal issues with coworkers, Petitioner testified that when he felt a coworker was neglectful of a patient or was treating a patient in a non-therapeutic way, Petitioner would bring it up to the coworker. Petitioner learned to lead by example rather than trying to supervise his coworkers. (Tr. 364).
Registered nurse Lauren Hoffman worked closely with Petitioner in the chemical dependency unit at Riveredge Hospital. The chemical dependency unit is a challenging environment, with patients who are violent at times. Hoffman described Petitioner's demeanor with patients as kind, calm and therapeutic. When dealing with coworkers he was friendly, professional and open in his communication. As an employee, he was reliable and responsible. (Tr. 48-60).
Petitioner became a certified addiction and drug counselor in February 2017. He chose to obtain the certification because, with his history with addiction, he felt he could be of service to
others in that role. (Tr. 366). In order for Petitioner to become certified, he attended night school for six months then completed 180 hours of unpaid internship at Riveredge Hospital. (Tr. 74-75).
Erin Borders, Director of Outpatient Services and Physician Liaison at Loretto Hospital, hired Petitioner in March 2017 as a patient resource specialist. In this position, Petitioner talked with patients about services they might need, such as dental or mental health services, and would help patients get referrals for those services. (Tr. 369).
During his interview, Petitioner told Borders why he was suspended from the practice of law. (Tr. 283-85). On his application, Petitioner listed the law school he attended. He did not disclose his law license in the section that asked for licenses, certifications and registrations. That was not a concern to Borders because Petitioner's law license would not have been relevant to the position for which he was applying. (Tr. 287). Petitioner did not disclose his law license in his application for this job because he did not think it was relevant. (Tr. 370).
Petitioner was recently promoted to Coordinator of the Addictions Department at Loretto Hospital. In this position, he supervises approximately 30 people. He is in charge of marketing and networking, scheduling and assignments of workers, programming, overseeing the intake department and counselors, and dealing with employee relations. (Tr. 374-75). He oversees the Addictions Unit, which includes patients who are in medical detoxification as well as those who have completed the detoxification program. (Tr. 70-71). He continues to work part-time at Riveredge Hospital, leading drug education groups for adolescents and performing substance abuse assessments. (Tr. 71-72).
Petitioner has given lectures on a volunteer basis to schools and organizations on mental health and substance abuse issues. (Tr. 377-80). Although his current career is rewarding,
Petitioner wants to be reinstated to the practice of law because he believes he would be a better lawyer now and wants to make a difference in people's lives. (Tr. 381).
Coworkers described Petitioner as dependable, trustworthy and honest. Todd Bergmann testified Petitioner was one of his strongest staff members due to his consistency, high quality of care, thoroughness, and connection with patients. (Tr. 315). Initially, Bergmann had some conversations with Petitioner about how to connect with his teammates. He saw Petitioner improve in that area and ultimately become a leader in his work at the hospital. (Tr. 318).
Lauren Hoffman testified Petitioner is responsible and reliable and interacts well with coworkers and patients. When asked about Petitioner's character, Hoffman answered, "I believe he genuinely tries to add value to people; and has worked on himself a lot to the point that he can actually give his life towards something that actually matters, and he's someone who I would rely on." (Tr. 61).
Erin Borders testified Petitioner does excellent work at Loretto Hospital. He is reliable and his interactions with all patients is positive, despite having to work with some challenging patients. (Tr. 290). He has a collegial relationship with his coworkers, is a team player, and is passionate about his work. (Tr. 291-92). Borders has found him to be honest and truthful, with a high level of integrity. (Tr. 293-94).
The Honorable Peter Vilkelis, associate judge in the Circuit Court of Cook County, has known Petitioner since high school and also attended law school with him. (Tr. 270). He is aware that Petitioner lost his law license because he tested positive for cannabis while on probation. Judge Vilkelis kept in touch with Petitioner after he was suspended because he knew Petitioner was going through a hard time. (Tr. 272-73). He would have no concerns about
Petitioner resuming the practice of law. (Tr. 274). He has a very high opinion of Petitioner's character, believes he has atoned for his mistakes and is truthful and honest. (Tr. 275-76).
Thomas Cicero met Petitioner through a substance abuse prevention program he was required to attend after testing positive for cannabis in a drug test administered by his employer. Petitioner led the group therapy Cicero attended at Loretto Hospital, which began in January 2018. (Tr. 30-31). Petitioner shared with the group that he lost his law license because of his cannabis use. (Tr. 38). Cicero felt Petitioner was open and honest about the effects cannabis had on his life. He was a good role model and was supportive of the group members. (Tr. 40-42).
Notice to Clients Pursuant to Supreme Court Rule 764
In Petitioner's letters to his clients following the revocation of his suspension, instead of stating that he was suspended for two and one-half years and until further order of the court, he stated, "the Illinois Supreme Court has suspended me from the practice of law for at least the next 30 months." (Tr. 126). Petitioner testified he was not attempting to minimize his discipline by describing the length of his suspension in this way. (Tr. 127).
Administrator's Requests for Information
Petitioner acknowledges he received letters from Counsel for the Administrator in March 2011 inquiring about additional client matters. He was suffering from extreme depression at the time and was helping to care for his father who had suffered a stroke. He requested more time to respond to the letters but never did so. (Tr. 132-33). He acknowledges his failure to respond was a mistake. (Tr. 134-35).
Efforts to Keep Abreast of the Law
Petitioner completed thirty hours of continuing legal education in 2018. Most of the courses were completed in the weeks leading up to his hearing. (Tr. 409).
B. Analysis and Conclusions
When evaluating conduct since discipline was imposed, the Supreme Court has looked favorably upon evidence that a petitioner was involved in community, religious, charitable or other volunteer activities, held a position of trust or responsibility, and has behaved in an exemplary manner. Martinez-Fraticelli, 221 Ill. 2d at 277 We find Petitioner has established these factors. His conduct since discipline was imposed has been commendable and supports reinstatement.
It took Petitioner some time to find a new career path, but since 2014 he has been steadily employed in the mental health field. He has become certified as an addiction counselor, and worked his way up to his current position of Coordination of the Addictions Department at Loretto Hospital. His supervisors praise the quality of his work and his relationships with patients and coworkers. He is passionate about helping others who are struggling with substance abuse as well as educating young people about the dangers of substance abuse. There is no question his conduct is beneficial to the community. It is also clear from the evidence that he has held and continues to hold positions of trust and responsibility and his behavior with colleagues and patients has been professional and caring.
We also commend Petitioner for maintaining his sobriety for more than eight years. He has demonstrated a strong commitment to abstinence. While he must always remain vigilant, he has successfully addressed his problems with substance abuse and possesses the tools necessary for preventing relapse.
The Administrator contends reinstatement is not warranted because Petitioner remains at risk for relapse, did not report and pay taxes on his IRA distribution, made misrepresentations on employment applications, failed to cooperate in disciplinary investigations, and did not make
sufficient efforts to keep up on the law. For the following reasons, the Administrator's objections are not persuasive.
Regarding the Administrator's concern about relapse, the undisputed evidence shows Petitioner has not used alcohol in twelve years and has not used cannabis in eight years. Dr. Gershan characterized Petitioner's risk of relapse as low--the lowest possible level-- and stated that the risk of relapse never disappears for a person who has been dependent on drugs or alcohol. There is no evidence before us that causes us concern about relapse. Moreover, as cited above, the Court has reinstated numerous attorneys who have overcome drug or alcohol dependence, despite the fact that a risk of relapse is always present. In those cases, The Court imposed certain conditions to mitigate the risk of relapse and could impose similar conditions in this case.
With respect to Petitioner's tax obligation, we accept his explanation that he was at a low point in his life when he took the IRA distribution and did not intentionally seek to conceal it from the IRS. Petitioner has made the necessary arrangements to pay his debt, and there was no evidence he is in financial distress such that he would not be able to honor his obligation. Consequently, while Petitioner made an error in judgment, it is not sufficiently serious to bar reinstatement.
Similarly, Petitioner's statements or alleged omissions on his employment applications do not alter our overall evaluation of his conduct. Petitioner should have disclosed his law license and his suspension. However, his disclosure of his prior employment as a lawyer in his Riveredge application and his law school attendance in his Loretto Hospital application indicates he was not trying to conceal the fact that he had previously been a lawyer. In addition, he told Erin Borders during his interview that his law license was suspended. Neither Borders nor Todd
Bergmann, who also learned of the suspension before hiring Petitioner, believed it was relevant to the positions for which Petitioner applied.
We are somewhat troubled by Petitioner's failure to respond to the Administrator's requests for information in 2011. However, we consider that Petitioner was suffering from serious depression at the time of the requests. This does not excuse the failure to comply, but we believe Petitioner understands his obligation to cooperate and would not make the same mistake in the future.
The Administrator further contends that Petitioner's efforts to keep abreast of the law were insufficient. Rule 767(f) requires us to determine Petitioner's current knowledge of the law, in addition to his rehabilitation and good character. Evidence that a petitioner has completed continuing legal education courses, earned MCLE credits, reviewed case law, and read journals and other publications is often submitted to establish this requirement. In re Sosman, 2012PR00150, M.R. 25693 (May 23, 2014) (Hearing Bd. at 43). Petitioner recently completed 30 hours of continuing legal education. The Administrator takes issue with these efforts because of their timing -- two weeks prior to the hearing.
We do not find the Administrator's argument persuasive. We are not aware of a requirement as to when a petitioner must earn CLE credits or attend legal education courses relative to the date of the reinstatement hearing. Moreover, given that Petitioner must demonstrate current knowledge of the law, it would seem that recent coursework would be preferable to more distant coursework.
While Petitioner has made some mistakes, the overall evidence shows he has made significant positive changes in his life. He has achieved and maintained sobriety and addressed his mental health issues, has held positions of trust and responsibility and performed well in
those positions, and is committed to practicing law in an ethical and professional manner. Therefore, we conclude that Petitioner's conduct since discipline was imposed supports his reinstatement.
VI. Candor and forthrightness in presenting evidence in support of the petition.
A. Evidence Considered
Petitioner did not disclose in his Petition an $8,000.00 loan he received from his ex-wife, Malinda Malecki, in 2012 or 2013. (Tr. 337). He used the funds to pay his living expenses and has since repaid them. His failure to disclose the loan was an oversight. (Tr. 338).
In addition, Petitioner did not disclose the $132,000.00 IRA disbursement he received in 2012. (Tr. 338-39). He took the early distribution because he did not have a source of income at the time. (Tr. 340). He acknowledges it was a mistake not to disclose the distribution but he was not trying to hide it. (Tr. 342).
Petitioner further acknowledged he failed to disclose a bank account he opened after his mother passed away. (Tr. 348). He opened the account after the Petition was initially prepared and did not think to add it to the Petition. (Tr. 349).
When the Petition was first filed, it was rejected because Petitioner owed funds to reimburse the Client Protection Fund. He had not been aware of this obligation prior to filing the Petition and paid it as soon as he learned of it. (Tr. 350).
B. Analysis and Conclusions
We found Petitioner to be honest and sincere in his testimony. He did not try to hide or avoid responsibility for the conduct that led to his discipline or any of the difficulties he experienced as a result of his suspension.
The Administrator asserts Petitioner was not completely candid because of the three omissions related to his finances. Petitioner admittedly did not disclose in his Petition a loan
from his ex-wife, the income he received from an IRA distribution, or a bank account he opened in 2017.
"In assessing petitions for reinstatement, we fully expect a high level of care, candor, and judgment commensurate with the gravity of the request." In re Howard, 2010PR00067, M.R. 23910 (Sept. 25, 2013) (Hearing Bd. at 15). However, not all omissions or discrepancies present a bar to reinstatement. See In re Parker, 149 Ill. 2d 222, 240, 595 N.E.2d 549 (1992).
The omitted information should have been disclosed but we do not find the omissions were intentional or reflect negatively on Petitioner's overall candor and forthrightness in this matter. But for the three omissions, the Petition was presented in a thorough and forthright manner. We do not consider the omitted information particularly material because Petitioner's financial status was not an issue in his underlying disciplinary proceeding nor is there evidence that he is currently experiencing financial difficulties. We find Petitioner to be an open and honest person and accept his testimony that the omissions were oversights.
In a reinstatement proceeding, the focus is on the petitioner's rehabilitation and character, with rehabilitation being the most important consideration. In re Martinez-Fraticelli, 221 Ill. 2d 255, 850 N.E.2d 155 (2006).
Rehabilitation is demonstrated by the petitioner's return to a beneficial, constructive and trustworthy role. In re Wigoda, 77 Ill. 2d 154, 159, 395 N.E.2d 571 (1979).
We find Petitioner has met his burden of establishing his rehabilitation. He obtained treatment for the mental health issues and addictions that led to his misconduct and the revocation of his probation. He has abstained from using alcohol since 2006 and from using marijuana since 2010. Dr. Gershan considers Petitioner to be in sustained remission with a low
risk of relapse and opines that he is fit to practice law with conditions. We believe Petitioner understands the importance of remaining sober and will comply with the conditions recommended by Dr. Gershan.
Petitioner has dedicated the past several years to working with others who suffer from addiction and mental health disorders. His supervisors and coworkers describe him as responsible, trustworthy, and a valued employee. He has worked his way up to a position of considerable responsibility at Loretto Hospital. His efforts speak to his character and demonstrate to us that he has returned to a beneficial, constructive, and trustworthy role.
Given Petitioner's history of addiction, we recommend that his return to practice be subject to oversight and other conditions, should he be reinstated. We incorporate Dr. Gershan's recommended conditions with the exception of the condition that Petitioner obtain a mentor other than Shelby Prusak. We understand Dr. Gershan's concerns regarding Petitioner's former spouse acting in a supervisory role. However, having considered all of the relevant evidence, including Ms. Prusak's testimony before us, we find that Shelby Prusak will be an appropriate supervisor. She has an established practice and will require Petitioner to work as her associate. She is willing and able to monitor Petitioner's work on a daily basis. In addition, having listened to Ms. Prusak's testimony and observed her demeanor, we find she has thoughtfully considered this arrangement and understands her responsibilities. We also consider the evidence that Petitioner has improved his interpersonal skills and he and Ms. Prusak now have an amicable relationship.
Accordingly, we recommend that Petitioner, Raymond L. Prusak, be reinstated to the practice of law subject to the following conditions, which will remain in effect for the first two (2) years following reinstatement:
Petitioner shall comply with Article VII of the Illinois Supreme Court Rules on Admission and Discipline of Attorneys and the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigations relating to his conduct;
Petitioner, upon reinstatement, shall comply with the Minimum Continuing Legal Education requirements for reinstated attorneys set out in Supreme Court Rule 791(f);
Petitioner shall attend meetings as scheduled by the Commission probation officer. He shall submit quarterly written reports to the Commission probation officer concerning the status of his practice of law and the nature and extent of his compliance with the conditions of his reinstatement;
Petitioner shall notify the Administrator within fourteen (14) days of any change of address;
Petitioner shall abstain from the usage of any unprescribed controlled substances and alcohol. He shall report to the Administrator any lapse in his sobriety or usage of any unprescribed controlled substances or alcohol within seventy-two (72) hours of that usage;
Petitioner shall, as required by the Administrator, submit to random substance testing by a qualified mental health professional or facility approved by the Administrator within eight (8) hours of receiving notice from the Administrator that he shall submit to the testing. The results of the tests shall be reported to the Administrator. Petitioner shall pay and all costs of such testing;
Petitioner shall continue to participate in Alcoholics Anonymous and Marijuana Anonymous by attending at least one meeting per week. Petitioner is to maintain a log of his attendance at the meetings and submit it to the Administrator with his quarterly reports;
Petitioner shall maintain sponsors in Alcoholics Anonymous and Marijuana Anonymous and shall provide the name, address and telephone number of the sponsors to the Administrator within fourteen (14) days of entry of the Court's final order. Petitioner shall request that the sponsors communicate with the Administrator in writing on a quarterly basis regarding Petitioner's participation and progress in the programs and report any lapses in sobriety or usage of unprescribed controlled substances or alcohol to the Administrator within seventy-two (72) hours of any knowledge of that usage;
Petitioner shall engage in a course of individual therapy with a therapist approved by the Administrator and shall comply with the therapist's treatment recommendations. Petitioner shall authorize the therapist to provide a report in writing to the Administrator no less than every three (3) months regarding Petitioner's progress and compliance with treatment recommendations;
Petitioner shall submit a copy of this Report and Recommendation to Attorney Shelby Prusak, and Ms. Prusak shall be appointed as Petitioner's supervising attorney for a period of two (2) years from the date of reinstatement. During the supervisory period, Petitioner shall report to Ms. Prusak on a weekly basis concerning his practice of law. Ms. Prusak shall communicate in writing with the Administrator on a quarterly basis regarding Petitioner's practice, the number of cases being handled by Petitioner, and her general appraisal of Petitioner's practice of law;
If Ms. Prusak is unwilling to accept the responsibilities contained in paragraph j. above, or paragraph l. below, and/or if circumstances should change such that continuing the supervisory relationship is not acceptable to Petitioner or Ms. Prusak, Petitioner shall notify the Administrator within seven (7) days and shall obtain a new supervising attorney who is acceptable to the Administrator;
Petitioner and his supervising attorney shall promptly report to the Administrator any violation by Petitioner of the conditions of reinstatement or the Illinois Rules of Professional Conduct; and
If Petitioner is found to have violated any of the conditions of reinstatement, his conditional reinstatement shall be revoked and he shall be suspended from the practice of law until further order of the Court.
Carl E. Poli
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 December 5, 2018.
Kenneth G. Jablonski, Clerk of the