Filed January 19, 2007
In re Scott Robert Erwin
Commission No. 04 CH 114
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) representing a client where the representation may be materially limited by the lawyer's own interest; 2) failing to withdraw when the lawyer knew or reasonably should have known that continued employment will result in a violation of the Rules; 3) overreaching the attorney-client relationship; 4) breaching the fiduciary duties owed to his client; 5) committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer; 6) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 7) engaging in conduct prejudicial to the administration of justice; and 8) engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute
RULES DISCUSSED: Rules 1.7(b), 1.16(a)(2), 8.4(a)(3), 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 771
RECOMMENDATION: Suspension from the practice of law for fifteen months
DATE OF OPINION: January 19, 2007
HEARING PANEL: Michael C. Greenfield, Michael L. Bolos and Cheryl M. Kneubuehl
RESPONDENT'S COUNSEL: Ronald F. Neville
ADMINISTRATOR'S COUNSEL: Christine P. Anderson and Wendy J. Muchman
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
SCOTT ROBERT ERWIN,
Commission No. 04 CH 114
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on June 28, 29, 2006, at the DeKalb City Municipal Building, before the Panel of Michael C. Greenfield, Chair, Michael L. Bolos and Cheryl M. Kneubuehl. Christine P. Anderson and Wendy J. Muchman represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent was present in person and was represented by Ronald F. Neville.
On September 7, 2004, the Administrator filed a Complaint against Respondent pursuant to Supreme Court Rule 753(b). On January 20, 2005, the Administrator filed a two-count First Amended Complaint alleging that Respondent engaged in misconduct when he allowed a client to perform striptease dances for him in his office in exchange for credits against his fees for legal services he rendered to her, improperly touched her in a sexual manner, kissed her mouth and breasts, and patted her buttocks during the dances and at other times, and lied to law enforcement authorities about that conduct. Respondent filed an Answer to the First Amended Complaint, admitting some factual allegations, denying some factual allegations, and denying all allegations of misconduct.
The Administrator presented the testimony of two witnesses, and presented Exhibits 1-9 and 11-14, which were admitted into evidence. Included in those exhibits were two Compact Disks of recorded conversations between Respondent and Quitno, and transcripts of those recordings, referred to at length later in this Report. Respondent testified on his own behalf, presented the testimony of four witnesses and presented Exhibits 3-4, 7-12, 14-15, 18, and 21, which were admitted into evidence.
Beginning in approximately January 2002 and continuing until March 2003, Respondent represented Amber Quitno ("Quitno") and some of her family members in various legal matters, including Quitno's personal injury claim alleging sexual assault by a doctor. He also represented her and her husband Robert's minor children in various paternity, custody and support matters, and a matter involving the Illinois Department of Children and Family Services ("DCFS"). Quitno agreed to pay Respondent a one-third contingent fee on the personal injury claim and an hourly fee of $135 for work performed on all other legal matters. At all times during his representation of Quitno, Respondent had a fiduciary duty to her requiring that he not abuse his position of authority and trust, and that he not place his own interests above the interests of his client.
In or about June or July 2001, Respondent had gone to a so-called "gentlemen's club" owned by a client, called "Heartbreakers" (sometimes referred to herein as the "Club"), at which women danced in the presence of male patrons, the dances being performed in various degrees of nudity, including complete nudity, depending on the fee paid by the patron. The performers were referred to as "exotic dancers." The rules of the Club prohibited any sexual or other
physical contact between patron and dancer. Quitno was employed as an exotic dancer at Heartbreakers and, on one instance when Respondent was a patron at the Club, he and Quitno became aware they had previously discussed a legal matter over the telephone, as a result of which his law firm had then performed pro bono legal services for her. During their initial discussion at the Club, Quitno told Respondent she was in need of additional legal assistance and Respondent suggested she call to make an appointment to see him at his office. Subsequently, Quitno retained Respondent to perform, and he did perform, various legal services for her.
In February 2002, after Respondent sent Quitno several billing invoices for his ongoing legal services, she expressed concern over her ability to pay his bill. While each attributes to the other the proposal that they do so, Respondent and Quitno agreed that in exchange for credit on Respondent's legal billings, Quitno would perform striptease dances for him in his office, but they did not discuss the amount of the credit Quitno would receive in return for such dancing. On several occasions between February and June 2002, and as part of that arrangement, Quitno performed striptease dances for Respondent in his office. The dances typically lasted for approximately one-half hour, during which Quitno removed her clothing. On one of those occasions, instead of dancing she modeled clothes she wore while performing her job as an exotic dancer. In July 2002, Respondent gave Quitno a $500 credit toward the amount due for his legal services, in return for the dances she performed, which credit was described on the invoice as a payment.
Amber Quitno testified that she is 31 years old, is married and has three children. (Tr. 33-34, 141-42). She received her real estate agent's license in October 2004, and is currently working as a real estate agent. (Tr. 35-36). Between 1996 and 1998, and May 2001 and January
2003, Respondent worked as an exotic dancer. (Tr. 37-40, 142-43). She worked at Heartbreakers during the most recent period, where she danced either topless or totally nude. (Tr. 41, 49). She said she stopped working at Heartbreakers because of the events involving Respondent and because she was having panic attacks. (Tr. 41-42).
Quitno's first contact with Respondent was in the winter of 2000. She had a legal issue with her landlord and, upon searching for an attorney, found Respondent's name in the telephone book. She initially spoke with Respondent by phone, who told her his law clerk would look into the matter. The law clerk resolved the matter within one week. Because Quitno was unemployed and living in government subsidized housing, Respondent did not charge her for his services. Quitno did not meet Respondent at that time. (Tr. 40-46).
In June or July 2001, Quitno was performing a dance for Respondent in a private area at Heartbreakers. When he told her his name and that he was an attorney, she realized he was the same attorney who had previously helped her with her landlord problem. (Tr. 46-48). She performed numerous private dances for him that night, totaling 60 to 75 minutes. (Tr. 47-51). The Club rules prohibit customers from touching the dancers, and Respondent did not touch her at that time. (Tr. 51-52). That night Quitno also told Respondent about some visitation and custody issues her husband Robert was having with his children's grandparents. (Tr. 56).
In December 2001 or January 2002, Quitno and her husband met Respondent at the DeKalb County courthouse and discussed Robert's case with him. They retained Respondent to represent Robert in that matter. (Tr. 62-64; Adm. Ex. 2).
In January 2002, Respondent agreed to represent Quitno in an action against a doctor who had allegedly sexually assaulted her in 1999. (Adm. Ex. 1). While the doctor was examining a cyst on her lower back, she said he pulled down her pants, touched her in her groin
area, and attempted to insert his finger into her vagina. Quitno was initially "dumbfounded" and did nothing to stop the doctor, but left the office after he had attempted to insert his finger in her vagina. (Tr. 64-66, 179-80). She told her husband about the incident that day and reported it to the police the next day. (Tr. 180-81).
Quitno explained to Respondent that she did not scream or run out of the office when the doctor pulled down her pants down because, as a result of sexual abuse to which she had been subjected as a young girl, she had developed a defense mechanism of "freezing" in the event of such abuse, rather than attempting to stop it or escape from it. (Tr. 66-68, 79-80). Quitno explained to Respondent in great detail her history of sexual abuse, which began when, at the age of five, she was sexually molested by a male friend of her mother's, and continued until she was 16 years old, and which involved several different men during this period of time. (Tr. 72-79). Quitno had subsequent conversations with Respondent about her abuse, but she did not go into as much detail as in the initial conversation. (Tr. 80-81). On February 6, 2002, Respondent filed a lawsuit against the doctor on behalf of Quitno. (Tr. 70; Adm. Ex. 3). Respondent then learned the alleged molestation might have occurred one day earlier than he had been told, and settled the case for $18,500, less than he considered the value of the case, because he feared it had been filed one day after the Statute of Limitations had run. (Tr. 82-83; Adm. Ex. 6).
Respondent also represented Quitno in a paternity matter involving one of her children, and represented Quitno and Robert in a DCFS matter in which Robert's son was alleged to have molested Quitno's daughter, about which the DCFS had begun an investigation. (Tr. 100-101).
Quitno received billing statements from Respondent for the legal work he performed on her cases. (Tr. 84; Adm. Ex. 7). After several months, Quitno owed Respondent a large amount of money for fees, and Respondent told her she would have to begin making regular payments.
Quitno explained she would have difficulty paying the bill, and Respondent suggested that if she danced for him, he would make deductions from her bill. (Tr. 85-86). Quitno agreed to dance for Respondent, but they did not discuss the amount Respondent would deduct from her bill for each dance. Respondent did not inform Quitno there was a potential conflict of interest, nor did he advise her to seek the advice of another attorney regarding their arrangement. (Tr. 87-88, 227-28). Quitno went to Respondent's office a few weeks later at about 7 p.m., when the office was closed and no one else, including his secretary, was present, and danced for him for approximately 20 minutes, wearing only thong underwear. Respondent touched Quitno's buttocks during the dance, but she told him there was to be no touching. (Tr. 88-95, 166-67, 170).
Quitno was in a store a few weeks later, shopping for clothes for work, when she received a call from Respondent on her cell phone. When Quitno told Respondent where she was and what she was doing, he suggested she come to his office and model the clothes. She then went to Respondent's office and modeled two of the outfits she had just purchased. Quitno did not dance for Respondent at that time, but said she thought something would be deducted from her bill in return for the modeling. (Tr. 96-99, 170-71). After the modeling incident, Respondent touched her in an inappropriate manner almost every time she went to his office, which, during this period of time, was at least once each week to conduct legal business. For example, she said he would grab her buttocks or brush up against her breast. (Tr. 99-101, 162). She continued to go to Respondent's office alone and estimated she was in his office on 20 occasions during the course of his representation of her. (Tr. 162-63).
A few weeks later, Quitno went to Respondent's office on a Saturday to sign some documents, when no one else was present. Her mother was waiting for her in the car. After she
signed the documents, Respondent lifted up her blouse and fondled her breast, and unsnapped her pants and touched her vagina. This went on for approximately five minutes, until her mother honked the car horn, startling them, and Quitno left. (Tr. 102-105, 173-74, 181-82).
Subsequently, Respondent asked Quitno to come to his office and dance, but she no longer felt comfortable doing that, so she suggested he come to Heartbreakers, where she was still dancing. (Tr. 110-12). When he went to the Club, Quitno performed six or seven lap dances for him. Respondent had to pay the Club $15 to get into the private back room where the dances were performed, but he did not pay Quitno for the dances. Instead, they agreed he would deduct the cost of the dances from her bill for legal services. They discussed the price of the dances, which were normally $30 for topless dances and $50 for totally nude dances, but they did not discuss how much would be deducted from Quitno's bill. (Tr. 114-21, 162). Respondent did not touch Quitno during the dances. (Tr. 121-22).
In March or April 2002, Quitno went to Respondent's office to read some documents. As she was leaving, Respondent grabbed her wrist, turned her around and began kissing her and touching her breasts. He picked her up and sat her down on a counter in the office kitchen area. Quitno was wearing a short skirt which rose up when she sat down. Respondent then inserted his finger into her vagina. (Tr. 123-25, 167, 191-92). Respondent made an intimate sexual comment to Quitno, and she got off the counter and left his office. (Tr. 126). She did not report this incident to the police until December 2002. (Tr. 182).
Approximately two months after this incident, Quitno contacted a different attorney for advice regarding what to do about Respondent. Quitno thought no one would believe her story about Respondent's behavior, so she bought a small tape recorder in order to try to obtain proof of what had happened. (Tr. 128-29). In August or September 2002, Quitno went to
Respondent's office to confront him about his conduct and she surreptitiously recorded the conversation. (Tr. 129-30, 167). During that conversation, Quitno asked Respondent why he had credited her bill for only $500 after he had done more than watch her dance and had touched her. Respondent answered that he thought they had a special relationship. (Tr. 130-31).
Quitno did nothing with the tape recording of the conversation. She did not want to destroy his family and she told Respondent she did not want him to touch her anymore. She decided that if his conduct stopped, she might not need the tape, and if it did not stop, she could use it. (Tr. 132). Respondent continued to represent Quitno, her husband and her mother. (Tr. 198-200).
In December 2002, Respondent was in court with Quitno. Following the court appearance, Respondent and Quitno went into the adjacent jury room to discuss what had transpired. After discussing the case, Respondent told her he wanted her to make regular payments on his bill. On their way out of the room, Respondent grabbed Quitno's buttocks. (Tr. 136-37). Quitno did not say anything to Respondent because they were in the courthouse. However, she went to the State's Attorney's office and learned there were no cameras in the jury room. Later that day, she called Safe Passage, a local women's abuse hotline, and explained what was happening with Respondent. (Tr. 137). On their recommendation, she reported the incidents to the DeKalb Police Department. Quitno said she made the report because she realized Respondent's conduct was not going to stop, she wanted to set an example for her daughters, and she wanted to end the cycle of abuse. (Tr. 138-39, 183). Quitno gave the police the tape she had made, and agreed to record two more conversations. (Tr. 139; Adm. Exs. 13, 14). She denied that she went to the police because Respondent would not reduce his fees. She
said she had made payments on Respondent's bill, but she could not recall the total amount she paid. (Tr. 183-86; Adm. Ex. 7).
Quitno filed a civil action against Respondent, but allowed it to be dismissed for want of prosecution. (Tr. 212-17). Quitno was unsure of the exact dates of the events, and was unable, at times, to recall the specific months those events occurred. (Tr. 162-69). Quitno said she experiences anxiety and panic attacks, for which she has sought treatment, but declined to participate in an eight week anxiety treatment program offered at Northern Illinois University. She reiterated that she has "frozen" when sexually assaulted by the doctor and Respondent. (Tr. 175-79).
Robert Redel testified he is a detective with the DeKalb Police Department. On December 6, 2002, he was assigned to investigate a report by Quitno that Respondent sexually assaulted her. (Tr. 235-39). He interviewed Quitno, at which time she gave him the recording of the conversation she had with Respondent in April 2002. (Tr. 240-42). After reviewing the case with the State's Attorney's office, Redel obtained court authorization to record additional conversations between Quitno and Respondent. (Tr. 243). On January 30, 2003, Quitno called Respondent on the telephone, and that conversation was recorded. (Tr. Adm. Exs. 11, 13). Redel listened in on the conversation and gave Quitno written suggestions during the telephone call. (Tr. 245-47). On February 4, 2003, Quitno wore a recording device and recorded a conversation with Respondent at his office. Redel also listened in on this conversation. (Tr. 248-49).
On February 5, 2003, Redel and Detective Petragallo interviewed Respondent at his office. (Tr. 249-50). Redel told Respondent that Quitno had alleged she had danced for him to
reduce his bill and that Respondent sexually assaulted her by inserting his finger into her vagina. Respondent admitted she danced for him, but denied he had touched her in a sexual way. (Tr. 251-52, 278). He specifically denied inserting his fingers into her vagina, or touching her breasts or buttocks, and also denied grabbing Quitno's buttocks while in the courthouse. (Tr. 252-54). Respondent also specifically denied Quitno ever confronted him about improperly touching her. (Tr. 254, 280-81).
Redel recalled that in the taped conversations, Quitno asked Respondent about the improper touching (Tr. 255-56), and, also, that Quitno told him Respondent inserted his fingers when she was in his office, but not on one of the occasions she danced for him. At a prior deposition, Redel stated Quitno told him the incident occurred on one of the occasions she danced for him. (Tr. 269-73). Quitno was not specific about the dates of the relevant incidents, and Redel surmised from her statements the months during which they took place. Subsequently, the case was brought before the Grand Jury, seeking a charge against Respondent of criminal sexual assault. The Grand Jury did not vote an indictment. (Tr. 257, 278, 316).
Respondent has been licensed to practice law in Illinois since 1980. He has been a sole practitioner since 1986, and has a general practice. (Tr. 341-42). In September 2001, Respondent went to Heartbreakers after a client, the owner of the club, invited him to attend. (Tr. 351-52). While he was there, he had a conversation with Quitno, during which he learned he had represented her in a landlord/tenant matter. (Tr. 353-54). Quitno told Respondent she had some other legal issues she might want to discuss, and Respondent told her to call him at his office. Respondent spent approximately $60 that night, $40 of which was for two private, nude dances by Quitno. (Tr. 354-55, 406-407, 442-44).
Some time in the late fall of 2001, Quitno called Respondent' office and they discussed certain of her legal matters. (Tr. 355-56). By February 2002, Respondent agreed to represent Quitno in a case against a doctor whom she claimed had sexually assaulted her, and to represent Quitno and Robert in a grandparent's visitation matter. (Tr. 356-58). Subsequently, Respondent handled a juvenile court matter in which Robert's son was accused of abusing one of Quitno's daughters. He also represented Quitno and Robert in two separate paternity matters. (Tr. 358-59).
On February 6, 2002, Respondent filed a lawsuit against the doctor. (Tr. 413-14; Adm. Ex. 3). Quitno told Respondent the doctor had put his fingers in her vagina, and that because of his conduct, she "freezes up" when she goes to a doctor. (Tr. 413). She also told Respondent about her history of abuse. (Tr. 421-22). Respondent settled the case for $25,000, and the case was dismissed. (Tr. 415-21; Adm. Exs. 4, 5, 6).
Respondent sent monthly bills to his clients, including Quitno. (Tr. 361-62; Adm. Exs. 7, 8; Resp. Ex. 18). After receiving one of Respondent's bills, Quitno proposed she dance for Respondent in exchange for a reduction in the bill. Respondent did not agree at first, but after she suggested it again, he agreed. They did not discuss the amount that would be deducted from the bill for each dance, but Respondent assumed it would be similar to the amounts paid at the club for a private dance. (Tr. 364-66, 426-27). In February 2002, Quitno danced for Respondent in his office. He testified that on that occasion she took off all of her clothes, got down on the floor and touched herself, pretending to masturbate. (Tr. 366-67). The dance lasted 15 or 20 minutes. Quitno danced for Respondent in his office on three or four occasions. (Tr. 368-69). On one occasion she brought outfits she used while working at the Club, and on the other occasions she wore street clothes. During all of the dances, she became completely naked. (Tr.
369-70). Respondent denied he fondled or groped Quitno or inserted his finger into her vagina. The only time he touched her during the dances was on one occasion when she took his hands and put them on her waist. Quitno did not dance in Respondent's office after May 2002. (Tr. 370-74).
On June 13, 2002, Quitno called Respondent and asked him to go to the Club and watch her dance. Respondent went to the Club and Quitno performed three dances for him in one of the private cubicles. Respondent understood the dances would result in a reduction of her bill. (Tr. 374-75). Respondent did not pay Quitno for the dances, but paid the club $15. Respondent credited Quitno's bill in the amount of $135, based on $50 per dance, less the $15 he paid to the Club. (Tr. 375-78, 427-31 ; Resp. Ex. 21). In total, for all the dancing, Respondent credited Quitno's account for $534. (Tr. 431).
In November 2002, Quitno accused Respondent of having grabbed her buttocks when they were in the courthouse. Respondent denied he grabbed her, but admitted he had bumped into her. (Tr. 390).
Respondent withdrew from all of the cases involving Quitno in March 2003, the day after the police officers had questioned him at his office. (Tr. 371-72). Between June 2002 and March 2003, Quitno went to Respondent's office and met Respondent at the courthouse "very often," sometimes once or twice each week. (Tr. 372). Respondent also had regular contact with Quitno's mother and with Robert during this period of time., (Tr. 382-83).
Respondent denied he admitted sexually abusing Quitno in the taped telephone conversations, but said he was trying not to provoke her or make her angry so he had not denied her accusations that he touched her breasts or vagina. He realized he had made a mistake by having her dance for him, and was afraid that if she became angry, she would tell people about
the nude dancing. He said she owed him a significant amount of money and he was also concerned she would not pay his bill. (Tr. 385-87). Between September 2002 and January 2003, Quitno's demeanor with Respondent was "fine" and they periodically discussed his bill. (Tr. 388-89).
During the first recorded conversation, Quitno said to Respondent, "Guys at the club do not have their fingers inside of me and stuff like that. So it makes me feel like a cheap hoochie," to which Respondent stated, "I don't want to do that." (Tr. 457-58; Adm. Ex. 12 at 6). Respondent testified he was confused by what Quitno was saying and his response was intended to keep her from becoming angry. (Tr. 458-59). Later in that conversation, Quitno stated she had started dancing for him in order to take money off her legal bill, but "it keeps escalating every time I'm here." To which Respondent stated, "Well, yeah, and I didn't think I was forcing anything." (Tr. 459-60; Adm. Ex. 12 at 8). Respondent testified his reference to "forcing" Quitno alluded to forcing her to continue to dance for him, to her touching herself and to comments they each made while she was touching herself. Respondent explained he did not respond to Quitno's comments properly because he was afraid of what she might do. (Tr. 460-61). Later in that conversation, Quitno said, "But you've gone under my pants." Respondent responded "Well, if you don't want me to do that, I mean -." (Tr. 463; Adm. Ex. 12 at 8). Respondent denied his response was an admission he had touched Quitno under her pants, and claimed it meant he "saw" under her pants. (Tr. 463-65). Also during this conversation, Quitno said "if you were going to take it to a level of putting your fingers inside of me or whatever when I'm here, if you're going to take it to that level, that's more of a - a lot more than a client - or an attorney-client relationship." Respondent responded, "No question." (Tr. 469; Adm. Ex. 12
at 9). Respondent believes his responses should be take in context, and that he had said what he thought would appease Quitno. (Tr. 470-71).
In the second taped conversation, Quitno did not accuse Respondent of sexually abusing her. (Tr. 391). Respondent continued to represent Quitno's mother until October 2002, and represented Robert until he withdrew from the case. Robert remained cooperative with Respondent. (Tr. 391).
In the third taped conversation, Quitno stated their involvement had gone beyond dancing and told Respondent he had inserted his fingers into her vagina. Respondent said he thought she was referring to the fact Quitno touched herself, and testified that "any fingers that were inside her were her own, not mine." (Tr. 399). Respondent stated he disagreed with the way Quitno had characterized what had happened and apologized if they "miscommunicated" and if she "took offense to anything that has gone on between us." (Tr. 447-48; Adm. Ex. 14). Respondent testified he had apologized because of the things Quitno did that went beyond dancing, like touching herself during the dances, and "she would say things that she was doing, and I would respond to her." (Tr. 448). However, Respondent did not think she had any problem engaging in that kind of activity because she, and not he, had initiated it. He also explained that when Quitno talked about touching and groping, he thought she was talking about when she touched herself. (Tr. 448-49). Later in this conversation, Quitno was discussing Respondent inappropriately touching her, and said "What gave you the impression that it was -- that you could do that?", Respondent answered, "Your behaviors and your attitudes about it. You didn't seem to care." (Tr. 465-66; Adm. Ex. 14 at 34). Respondent again testified he thought she was talking about Quitno touching herself. (Tr. 466-67).
Respondent said he believed his answers to Detective Redel were truthful. (Tr. 397-98, 462).
Relevant Portions of the Taped Conversations
In the December 9, 2002, taped conversation, Quitno and Respondent discussed the amount of money Respondent deducted from his bill, and Quitno raised the issue of Respondent touching her.
Ms. Quitno: Well, I mean, the only problem I guess I had with the whole thing was that there's been a lot more going on than just dancing. And we're not together together. You know what I mean, like in a relationship, you're married, I'm married. But you still bill me just like a regular client, but you still have lot of other -
Mr. Erwin: I haven't been (inaudible).
Ms. Quitno: I don't (inaudible). I mean, I see a lot of stuff on there that's for, I mean everything you do. I know - I mean, you're a lawyer. You need to get paid for whatever; but there's I mean, guys at the club do not have their fingers inside of me and stuff like that, so it makes me feel like a cheap hoochie.
Mr. Erwin: I don't want to do that.
Ms. Quitno: Because that's - I feel like that's how you think of me, that I'm just somebody you can do that to and --
Mr. Erwin: No, I - not at all. I guess I feel like we were more than - we were more than just client-lawyer. We have a little bit of a friendship as well, seems to me. I mean, I could be wrong. Not that we have a relationship, but (inaudible). I mean, if you didn't (inaudible).
Ms. Quitno: Well, I thought and you said that if I did that kind of stuff you would take it off my bill.
Mr. Erwin: Well, I have been. You think $500 is -
Ms. Quitno: No, not even remotely, because that's my body, not paperwork. For me, that' a lot, and I'm not saying your career isn't. Whatever you - you went to school a long time; but my body is worth a lot more to me than that, and the only reason I'm doing it - not because I don't like you. I like you as an attorney, but that is worth a lot more for me than - I mean, I did it because I didn't have the money. That's all. I mean, for all of the -- $7,000 is a lot of money, and I know we have those kind of things - I have to have an attorney for these kind of things. You know what I'm saying?
Mr. Erwin: um-hum.
Ms. Quitno: (Inaudible) the situation but - okay. Well, this is what I have. And he says he'll take this - take money off my bill, this is what I'm going to do; but it keeps escalating every time I'm here. I mean, like the first couple of times I was here, you said, you know, it's going to be dancing. And then it's -
Mr. Erwin: Well, yeah, and I didn't think I was forcing anything.
Ms. Quitno: But did I ever unzip your pants?
Mr. Erwin: No.
Ms. Quitno: But you've gone under my pants.
Mr. Erwin: Well, if you don't want me to do that, I mean -
Ms. Quitno: It's just that kind of stuff to me is something that people do in a relationship.
* * * * *
Ms. Quitno: So that's where I'm at. That's what I'm saying is that, if you were going to take it to a level of putting your fingers inside of me or whatever when I'm here, if you're going to take it to that level, that's more of a -a lot more than a client - or an attorney-client relationship.
Mr. Erwin: No question.
* * * * *
Ms. Quitno: It's been more than that. I know it has. But every time I'm here, there's been touching and groping and stuff like that, every time.
Mr. Erwin: Not every time you've been in my office, no.
* * * * *
Ms. Quitno: If it was dancing, I have no problem with dancing. I love dancing and I love - that's my job, but you took it a lot further than that, I mean -
Mr. Erwin: Well, only because you let me. So if you don't want to, that's not a problem.
(Adm. Ex. 12 at 5-13).
In the January 30, 2003, taped conversation Quitno again discussed the dancing and touching with Respondent.
Ms. Quitno: I just - 500 bucks - I'm just trying to say that $500 is - the first time you came into the club, you spent $300 in ˝-an-hour; and that was at the club, and that was just a topless - it was a dance at my club.
Mr. Erwin: Well, that's not accurate because I've never done that, so -
Ms. Quitno: Yeah, you did. You were pretty lit that night.
Mr. Erwin: Well, I just want to get a number from you so we can just get over that.
Ms. Quitno: All right. How much do you think its worth to - for that, I mean - I mean, and keep in mind that it went beyond dancing even though I said not to.
Mr. Erwin: Well, that's why, I mean, I put a number on there what I thought was reasonable; and you don't like it. So you tell me what you think is appropriate, and we'll either compromise or continue to fight about it.
Ms. Quitno: All right. Um, well, for the dancing - you know, I only went in there to actually dance a couple of times, so the 500 for the dancing I can understand. But most of the times - when I went there, most of the times, if the secretary wasn't there, there was a lot of fondling and groping and then a couple of times you put your fingers inside of me; and that to me is worth more, you know. Do you agree?
Mr. Erwin: No, but I just want to hear you out and see what -- try and get this thing resolved.
(Adm. Ex. 13, at 20-21).
In the February 4, 2003, taped conversation, Quitno and Respondent further discussed Respondent touching her.
Ms. Quitno: And I kind of want an apology from you.
Mr. Erwin: For what?
Ms. Quitno: Going way too far.
Mr, Erwin: Okay. I'm sorry that happened……
* * * * *
Ms. Quitno: Okay. What about all the times here then? I need to know from you. I need to know this because it's driving me nuts, Scott. I need to know why you thought - why - what gave you the impression that it was that when it
was supposed to be dancing for the bill? What gave you the impression that it was - that you could do that?
Mr. Erwin: Your behaviors and you attitudes about it, that you didn't seem to care.
Ms. Quitno: Because I didn't yell or scream or say no?
Mr. Erwin: Well, no. There's a difference between that and our discussions about it and all that kind of thing, so I just - if I misinterpreted it or misunderstood, that's my mistake and I'm sorry and I just told you that. I don't want us to dwell on this every time we have a conversation.
Ms. Quitno: I don't want to dwell on it any longer either. That's why I want to get to the bottom of why it all went that way.
How many times did I ask you not to kiss me?
Mr. Erwin: I don't know. I never -
Ms. Quitno: Oh -
Mr. Erwin: I remember we had a discussion about it early on one time.
Ms. Quitno: It was quite a few times. Every time you tried to do it, I said no.
Mr. Erwin: Well -
(Adm. Ex. 14 at 29-30, 34-35)
Evidence Offered in Mitigation
James Buck is an attorney who has known Respondent professionally and socially since 1980. (Tr. 292-93). Buck stated Respondent has a good reputation for truthfulness, and would believe Respondent under oath. (Tr. 294, 300-302). He is also aware Respondent performs pro bono work. (Tr. 298-99).
Jeffrey Krasner is an attorney who has known Respondent on a professional and social basis for 25 years. Krasner stated Respondent has an excellent reputation for truth and veracity,
and would believe Respondent under oath. He is also aware of Respondent's pro bono activities. (Tr. 303-11).
Timothy Johnson is an attorney who has known Respondent for 20 years. Johnson was the State's Attorney for DeKalb County from 1996 to 2000. He stated Respondent has a very good reputation for truth and veracity, and would believe him under oath. He is also aware of Respondent's pro bono work. (Tr. 324-32).
Nancy Teboda is the curriculum director for the Children's Learning Center, a day care center. She has known Respondent on a professional and social basis for 23 years. Respondent has been on the Center's Board of Directors since 1981. In addition to attending Board meetings, Respondent volunteers in various activities, and performs legal work on a pro bono basis. Teboda stated Respondent has a very good reputation for truth and veracity. (Tr. 333-38).
Respondent is married and has two teenaged children. (Tr. 340-41). He has performed pro bono work. He is the Chair of the DeKalb County Pro Bono Committee of the DeKalb County Bar Association. He has also been extensively involved with Prairie State Legal Services, developing a plan for local attorneys to represent indigent clients. (Tr. 343-44). He was recognized by the Illinois Bar Association for developing a legal clinic through the Northern Illinois University Law School to assist attorneys with pro bono cases. (Tr. 344-45; Resp. Ex. 7). He has also served on the Prairie State Legal Services Advisory Committee and has received awards for his work with that organization. (Tr. 345, 350; Resp. Exs. 10, 11, 12).
Respondent serves on the Board of Directors for the Children's Learning Center, and has performed pro bono legal work for it since 1981. For the past five years, he has also been on the Board of Directors for the DeKalb Educational Foundation, which raises money and awards
grants to teachers to enrich classroom facilities. (Tr. 345-46). Respondent also has been the court appointed special advocate for more than 15 years, and represents clients in juvenile cases. He performs volunteer work for USA Track and Field on the national law and legislation committee, and as a member of the Illinois Association Board of Directors. He also sits on the committee that resolves grievances and has served on the Doping Appeals Board. (Tr. 346-47). In the summer of 2005, Respondent and his family worked for one week at the Head Start Day Care Center on a Black Feet Indian Reservation. Respondent has received awards for his volunteer work. (Tr. 348-49; Resp. Exs. 8, 9).
Respondent admitted that having Quitno dance for him to reduce his fees was the worst mistake he had ever made and he regrets doing it. (Tr. 387).
Respondent has received no prior discipline.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). "Clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence." Cleary and Graham, Handbook of Illinois Evidence, § 301.6 (6th ed. 1994). This standard of proof is one in which the risk of error is not equally allocated; rather, it requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. Dec. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).
In this case, based on the evidence and testimony presented at the hearing, we conclude the Administrator proved by clear and convincing evidence that Respondent engaged in the misconduct alleged in both counts of the First Amended Complaint. Specifically, we conclude RESPONDENT: 1) represented a client where the representation may be materially limited by the lawyer's own interest; 2) failed to withdraw when the lawyer knew or reasonably should have known that continued employment will result in a violation of the Rules; 3) overreached the attorney-client relationship; 4) breached the fiduciary duties owed to his client; 5) committed a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer; 6) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; 7) engaged in conduct prejudicial to the administration of justice; and 8) engaged in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute in violation of Rules 1.7(b), 1.16(a)(2), 8.4(a)(3), 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 771.
Respondent admitted Quitno performed nude dances for him in his office in exchange for a reduction of his bill. This admission alone is sufficient to support a finding of misconduct. However, because of our other findings, we need not, and do not, base our recommendation on this finding alone.
We also find Respondent touched Quitno's breasts and vagina when she was in his office. Although Respondent denied he touched Quitno, we find his testimony on this point not credible. We base our credibility determination of the testimony of Quitno, Respondent's statements made during the taped conversations, and our observation of Respondent as he testified. Quitno testified Respondent inappropriately touched her on numerous occasions. On some of these
occasions, Respondent grabbed her buttocks or brushed up against her breasts. For example, on one instance, when Quitno was leaving Respondent's office, he lifted up her shirt and fondled her breasts, and unsnapped her pants and touched her vagina, and on another Respondent grabbed Quitno's wrist, turned her around and began kissing her and touching her breast. He lifted her onto the kitchen counter in his office, put his hand up her skirt, and inserted his finger into her vagina. Quitno's testimony was unequivocal, convincing and credible. In re Smith, 168 Ill. 2d 269, 283, 659 N.E.2d 896 (1995) (the Hearing Board is in the best position to determine the credibility of the witnesses).
As previously noted, Quitno thought no one would believe her story about Respondent's behavior (Tr. 128-29), and we think her fears may well have been justified. If the evidence of what transpired between them were limited to her word against Respondent's word, the only proof would have been the word of an exotic dancer against the denial of a respected and long-standing member of the legal community, and it would have been a formidable task for the Administrator to have established by clear and convincing proof that Respondent's alleged misconduct had in fact taken place. However, the recordings of their conversations eliminated any doubt as to what words were spoken and reduces our fact finding analysis to what their words meant. We will therefore amplify in some detail the bases of our conclusions regarding those facts.
Quitno's testimony is consistent with Respondent's statements and his admissions and lack of denials during the taped conversations. We view the statements Respondent made during the December 9, 2002, conversation as clear admissions he had touched Quitno in a sexual manner. Quitno said, "Guys at the club do not have their fingers inside of me and stuff like that, so it makes me feel like a cheap hoochie." Respondent replied, "I don't want to do
that." In the context of their discussion, we understand Quitno's statement to mean Respondent's insertion of his fingers into her vagina distressed her, in contrast to the conduct of other men for whom she danced at Heartbreakers, who did not do so, and the response was intended to mean, and did mean, Respondent did not intend his putting his fingers in her vagina to cause her any distress.
Quitno continued, "But it keeps escalating every time I'm here, you said, you know, its going to be dancing. And then it's -." Respondent's next statement was "Well, yeah, and I didn't think I was forcing anything." Quitno: "But did I ever unzip your pants?" Erwin: "No." Quitno: "But you've gone under my pants." RESPONDENT: "Well, if you don't want me to do that, I mean -." In the context of their discussion, we understand Quitno's statements to mean Respondent had initially said their arrangement would involve only dancing, but as that arrangement continued, Respondent did more than merely watch Quitno dance, including touching her under her pants, and the response was intended to mean, and did mean, Respondent had not believed his actions in doing more than merely watching Quitno dance, and in touching her under her pants, had been forced, and was not contrary to what Quitno found acceptable. We think it significant that Respondent did not deny having "gone under (Quitno's) pants," but that he only reacted to the accusation by responding that if she didn't want him to touch her under her pants, he would stop doing it, the latter phrase, that he would stop, being the obvious unspoken conclusion to his answer. We further note that someone cannot stop doing something he or she had not previously been doing.
Quitno: "If it was dancing, I have no problem with dancing. I love dancing and I love - that's my job, but you took it a lot further than that, I mean -." Respondent replied, "Well, only because you let me. So if you don't want to, that's not a problem." In the context of
their discussion, we understand Quitno's statements to mean Respondent had physically pulled aside her pants and touched her genitalia, and the responses were intended to mean, and did mean, Respondent did so because Quitno had not stopped those advances in the past, and, therefore, he thought she did not object to them, but he would stop that sexually invasive conduct, i.e., touching her genitalia, if she did not want him to continue doing so.
When Quitno said, "But every time I'm here, there's been touching and groping and stuff like that, every time," Respondent answered, "Not every time you've been in my office, no." In the context of their discussion, we understand Quitno's statement to constitute an accusation that Respondent had touched her breasts and genitalia on each and every occasion she had been alone with Respondent at his office, and the response was intended to mean, and did mean, Respondent had touched her breasts and genitalia on some, but not all, of those occasions.
During the January 30, 2003, taped conversation, Quitno again stated she did more than dance, and Respondent agreed with her. She stated, "How much do you think its worth to - for that, I mean - I mean, and keep in mind that it went beyond dancing even though I said not to." Respondent replied, "well, that's why, I mean, I put a number on there what I thought was reasonable; and you don't like it." Quitno also accused Respondent of putting his fingers inside of her, and he did not deny it. Quitno stated, "But most of the times - when I went there, most of the times, if the secretary wasn't there, there was a lot of fondling and groping and then a couple of times you put your fingers inside of me; and that to me is worth more, you know. Do you agree?" Respondent responded by saying "No, but I just want to hear you out and see what - try and get this thing resolved." We interpret Respondent's answer of "no" to mean he did not agree touching her was worth more money, not that he denied touching her.
During the February 4, 2003, taped conversation, Quitno said she wanted an apology from Respondent for "going way too far," and he answered, "Okay. I'm sorry that happened." In the context of their discussion, we understand Quitno's statement to mean she wanted Respondent to express regret for having touched her breasts and genitalia, and the response was intended to mean, and did mean, Respondent was apologizing for having done so. Furthermore, we believe it is a clear admission by Respondent that he did, in fact, touch Quitno's breasts and genitalia. One can't be sorry something happened, i.e., going "way too far," without having gone "way too far."
Quitno asked Respondent, "What gave you the impression that it was - that you could do that?" Respondent replied, "Your behaviors and your attitudes about it, that you didn't seem to care." In the context of their discussion, we understand Quitno's question to be asking why Respondent felt he could touch her breasts and genitalia, and the response was intended to mean, and did mean, Respondent had thought Quitno's failure to stop him from touching her breasts and genitalia, and her demeanor when he did so, meant she did not object to that conduct. Furthermore, we believe it is a clear admission by Respondent that he did, in fact, touch Quitno's breasts and genitalia.
Quitno asked, "How many times did I ask you not to kiss me?," to which Respondent replied, "I don't know." Quitno said, "Because I didn't yell or scream or say no." Respondent stated, "Well no. There's a difference between that and our discussions about it and all that kind of thing, so I just - if I misinterpreted it or misunderstood, that's my mistake and I'm sorry and I just told you that." In the context of their discussion, we understand Quitno's words to be a rhetorical question constituting an assertion that Respondent had kissed her on numerous occasions, and she had asked him on numerous occasions not to do so, and the response was
intended to mean, and did mean, Respondent had thought Quitno's failure to prevent him from kissing her caused him to conclude she did not object to his doing so, notwithstanding her requests to the contrary. Furthermore, as in the case of the earlier colloquy regarding the touching of Quitno's breasts and genitalia, we believe it is a clear admission by Respondent he had, in fact, kissed Quitno on numerous occasions. It is apparent from this conversation that Respondent admitted and repeatedly acknowledged he touched Quitno and that she had asked him on at least several occasions not to kiss her. He thought that based on her "behaviors and attitudes," she did not mind his kissing her. He then apologized for the touching if he misinterpreted her acquiescence.
We find the emphasized responses above are clear admissions by Respondent that he had perpetrated the acts Quitno had accused him of performing, and we do not credit Respondent's explanation that he gave those answers because did not want to antagonize Quitno by contradicting her. Respondent's explanation that his statements in the first conversation were intended to prevent Quitno from getting angry are not believable, and we reject them. According to Respondent, he was concerned that if she became angry, she might publicize the fact she danced for him and refuse to pay his bill. While this might be partially true, Respondent's statements amounted to admissions of conduct involving far more than Quitno's dancing, and we do not believe a rational person, particularly one in Respondent's position, would admit to such conduct if it were not true. Respondent did not simply agree with Quitno's accusations, he made affirmative statements which we, and, we think, any reasonable person would, construe as admissions he had sexually assaulted her. In any event, at no time did Respondent affirmatively deny he touched her.
We also reject Respondent's other attempts to explain away his obvious admissions. Respondent attempted to explain some of his more damaging statements in the first and third conversations by claiming that during the dances, Quitno touched herself, and when she talked about fingers being inside her, she was referring to her own fingers. This explanation is completely unbelievable. Quitno clearly stated "you," meaning Respondent, had his fingers inside of her. She never used the words "my fingers" or said she had "her fingers" inside herself. Her statements on those tapes were clear, direct and understandable. Moreover, she made similar statements on several other occasions, and each one clearly identifies Respondent as the one inserting his fingers. Respondent also claimed that when Quitno said he went "under" her pants, he thought she meant he "saw" under her pants, and said "Well, if you don't want me to do that, I mean --." This explanation, like his previous explanation, is not believable. Overall, Respondent's obviously intentional misconstruction of the clear meaning of the words of the conversations seriously undermines his credibility.
Respondent argues Quitno's credibility is suspect because she had difficulty remembering the specific dates of the alleged incidents. We do not agree. Although Quitno was unable to identify specific dates, she had no difficulty recalling the events that occurred. She clearly and credibly recited the relevant facts and was unshakeable in that regard. She was also able to give a general timeline of the events that occurred. Given the nature of the alleged misconduct, the specific dates are not essential to our findings. Respondent has not presented a defense contingent on certain or specific dates. Moreover, we observed Quitno testify and we find her believable and credible. Smith, 168 Ill. 2d at 283.
Based on our determination that Respondent inappropriately touched Quitno, including, specifically, touching her breasts and her vagina, and kissing her, we find Respondent engaged in
all of the misconduct alleged in Count I of the First Amended Complaint. It is well-settled that when an attorney engages in a sexual relationship with his client, he violates the Rules of Professional Conduct. In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909 (1997). Here, Respondent took advantage of his superior position as Quitno's attorney to gain sexual favors from her at a time when she was vulnerable and dependent on him. Quitno had numerous legal matters which were being handled by Respondent. She had insufficient money to pay Respondent or to hire another attorney. Without Respondent, Quitno would have been without legal representation. By placing Quitno in this situation, Respondent "compromised the exercise of his professional judgment on their behalf and failed to represent them with undivided fidelity." Id. at 516. Accordingly, Respondent breached his fiduciary duty, his representation of Quitno was materially limited by his own interests, and he should have withdrawn from representing her.
Respondent also engaged in overreaching. An attorney commits overreaching when he takes undue advantage of his position of influence over his client. Rinella, 175 Ill. 2d at 516, citing In re Stillo, 68 Ill. 2d 49, 368 N.E.2d 897 (1977). "By making lewd and unsolicited sexual advances to his clients during appointments purportedly scheduled to discuss their cases, and by causing the clients to believe their interests would be harmed if they refused his advances, Respondent took undue advantage of his position and thereby committed overreaching." Rinella, 175 Ill. 2d at 516. The Court's language is applicable to the present case, and we find Respondent therefore engaged in overreaching.
We further find Respondent committed a criminal act that reflects adversely on his honesty, trustworthiness and fitness to practice as a lawyer. Respondent committed a battery. The Criminal Code provides:
Battery. (a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an
individual or (2) makes physical contact of an insulting or provoking nature with an individual. 720 ILCS 5/12-3.
Based on our findings that Respondent touched Quitno on her breasts and vagina without her consent, we find Respondent committed a battery. Respondent's conduct reflects on his trustworthiness and fitness to practice law. By taking advantage of a client and using the payment of his fees to coerce her into submitting to his sexual advances, Respondent demonstrated "a serious deficiency in his character and in his ability to interact appropriately with people who depend upon and trust him." In re Fishman, 01 CH 109, M.R. 19462 (September 24, 2004) (Hearing Board Report at 22). Although we believe, and find, Respondent engaged in a criminal act, our focus is on the underlying actions, and the fact they also constituted criminal conduct, in addition to being an independent ethical violations, adds to the seriousness of the sexual misconduct.
Respondent's actions were also prejudicial to the administration of justice, tended to defeat the administration of justice, and brought the legal profession into disrepute. Respondent's misconduct originated from his attorney-client relationship with Quitno. He abused that relationship for his own pleasure. Rinella, 175 Ill. 2d at 516-17.
We find Respondent engaged in the misconduct alleged in Count II of the First Amended Complaint. Specifically, we find Respondent made false statements to the police officers investigating Quitno's allegations of sexual misconduct. Respondent admitted that on March 5, 2003, Detectives Petragallo and Redel interviewed him at his office. During the interview, Respondent told the detectives he never touched Quitno in a sexual way and denied placing his fingers in her vagina or touching her breasts or buttocks. Based on our findings in Count I, we find Respondent's statements to the detectives were false. We found Quitno's testimony
credible, including the facts Respondent kissed her, touched her breasts, and touched and inserted his finger into her vagina. We find Respondent's denials of that conduct were false and dishonest.
We further find Respondent's conduct was prejudicial to the administration of justice, tended to defeat the administration of justice, and brought the legal profession into disrepute. As an attorney, Respondent is aware of the importance of being truthful with investigating law enforcement personnel. His false statements hindered the investigation and reflected poorly on the legal profession.
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). "The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system." In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). In determining the appropriate sanction for an attorney's misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986). Also, "it is important to recognize the deterrent value of a sanction and the need to impress upon others the seriousness of the misconduct at issue." Twohey, 191 Ill. 2d at 85.
The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during that attorney's disciplinary proceedings. See Gorecki, 208 Ill. 2d at 360-61. In the present case there are several mitigating and several aggravating factors.
Respondent's misconduct is mitigated by the fact he has not been previously disciplined. Respondent has been practicing law for 20 years without incident, and we consider this a mitigating fact. See In re Demuth, 126 Ill. 2d 1, 14, 533 N.E.2d 867 (1988).
Respondent's misconduct is also mitigated by the fact he has performed extensive charitable and pro bono activities. He is the Chair of the DeKalb County Pro Bono Committee of the DeKalb County Bar Association. He has also been extensively involved with Prairie State Legal Services developing and implementing a plan for local attorneys to represent indigent clients. Respondent has served on the Prairie State Legal Services Advisory Committee, and has received awards for his work with that organization. He was recognized by the Illinois Bar Association for developing a legal clinic through the Northern Illinois University Law School to assist attorneys with pro bono cases.
Respondent serves on the Board of Directors for the Children's Learning Center, and has performed pro bono legal work for it since 1981. For the past five years, he has also been on the Board of Directors for the DeKalb Educational Foundation, which raises money and awards grants to teachers to enrich classroom facilities. Respondent also has been the court appointed special advocate for more than 15 years, and represents clients in juvenile cases. He performs volunteer work for USA Track and Field on the national law and legislation committee, and as a member of the Illinois Association Board of Directors. Respondent has received awards for his volunteer work.
We do not find Respondent's misconduct to be mitigated by the evidence of his good character. Respondent presented four character witnesses, including the former DeKalb County State's Attorney, who testified Respondent has a good reputation for integrity and honesty. However, we have specifically found Respondent was not truthful in this matter, either with respect to his testimony or his statements to investigating police officers. He may have a good reputation for truth and veracity, and integrity and honesty, but he was not truthful in connection with this case.
Respondent aggravated his misconduct by the facts that he failed to recognize the seriousness of his misconduct and showed a lack of remorse for his misconduct. Although Respondent stated he took responsibility for some of his misconduct and he recognized having Quitno dance was the biggest mistake of his life, his statements were not entirely convincing, especially in light of the fact he failed to acknowledge he had improperly touched Quitno. Moreover, we were left with the distinct impression that Respondent was sorry for the impact his misconduct has had on his life, rather than being sorry for the misconduct itself and for its profound adverse impact on Quitno. Failing to recognize the seriousness of misconduct and a lack of remorse are aggravating factors that must be considered. In re Lewis, 138 Ill. 2d 310, 562 N.E.2d 198 (1990). While we do not believe Respondent will repeat his misconduct, we are not convinced he understands the true nature of his misconduct or is genuinely remorseful for it.
We also find Respondent aggravated his misconduct by abusing his position of authority and having a selfish motive. Respondent was Quitno's attorney and by the very nature of that relationship was in a position of authority. He was aware Quitno had been repeatedly sexually abused and molested in the past, both as a very young child and as a teenager. Not only had she explained her history to him, but he represented her in a case in which a doctor had sexually
mistreated her. Despite his superior position and his knowledge of Quitno's history, or perhaps because of them, Respondent persisted in engaging in sexual misconduct with her. The fact he exploited and victimized a vulnerable client for his own sexual satisfaction makes his conduct particularly egregious. Fishman, 01 CH 109 (Hearing Board Report at 25-26).
Respondent further aggravated his misconduct by causing harm to Quitno. Although Respondent's legal representation of Quitno was competent, his exploitation of their attorney-client relationship was emotionally damaging to her. Additionally, Quitno was subjected to the embarrassment and humiliation of testifying in public at the disciplinary proceedings. Id. at 26.
Having considered these mitigating and aggravating factors, we must now recommend the appropriate sanction. The Administrator recommends Respondent be suspended from the practice of law for two years, and cites numerous cases to support her recommendation. See In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909 (1997) (three year suspension and until further order of the Court); In re Morris, 02 CH 48, M.R. 20753 (March 21, 2006) (nine month suspension); In re Fishman, 01 CH 109, M.R. 19462 (September 24, 2004) (one year suspension); In re Clark, 97 CH 111, M.R. 17713 (November 29, 2001) (two year suspension and until further order of the Court); In re Landry, 95 CH 446, M.R. 14025 (November 25, 1997) (nine month suspension); In re Horne, 93 CH 568, M.R. 12936 (May 30, 1997) (18 month suspension); In re Bloomquist, 94 CH 695, M.R. 10693 (March 27, 1995) (18 month suspension).
Respondent believes a suspension of no more than 30 days, along with a period of probation, would be the appropriate sanction. He also cites to several cases to support his recommendation. See In re Frederick, 03 SH 117, M.R. 19520 (September 24, 2004) (90 day suspension); In re Stogsdill, 02 CH 99, M.R. 18931 (September 22, 2003) (30 day suspension); In re Picone, 02 CH 98, M.R. 18889 (September 22, 2003) (30 day suspension); In re Sylvester,
02 CH 100, M.R. 18792 (September 19, 2003) (30 day suspension). All of the cases relied upon by Respondent were petitions to impose discipline on consent and there was no evidence the clients in those cases were coerced into the sexual relationships. Moreover, in all of these cases the attorneys were cooperative and were remorseful for their misconduct.
After reviewing these cases, we find Respondent's misconduct is more analogous to the misconduct in the cases cited by the Administrator. Although this case may be distinguished on its facts from each of the cited cases, we think it is most comparable to Fishman. In that case Fishman was a named partner in his law firm. Over a period of several months, Fishman repeatedly made unsolicited and unwanted sexual contact with a newly hired associate. This contact included personal and flirtatious comments, kissing, touching of her breasts, and putting his hand up the associate's skirt. On one occasion, Fishman drove the associate home from work, locked the car doors, pushed her seat back, and began kissing her while he was masturbating. On another occasion, he went to her apartment, pushed her onto her bed, touched her breasts and tried to kiss her. On a third occasion, at the law offices, Fishman placed his hand inside the associate's pants and penetrated her with his finger. In mitigation, Fishman presented testimony of his good character, cooperated in the disciplinary proceedings, performed charitable work, and had received no prior discipline. In aggravation, he abused his superior position of authority, had a selfish motive, and caused harm to the associate and the members of his law firm. Fishman, 01 CH 109.
Fishman was suspended for one year. The Hearing Board stated that Fishman's "actions, which reek of arrogance and a sense of invincibility, have not only disgraced the profession but can lead to a negative public perception of lawyers. A one year suspension clearly demonstrates to the public and to Respondent that the legal profession has no tolerance for an attorney who has
demonstrated no regard for the sensibilities of another person." The Hearing Board imposed the suspension despite the fact that it was convinced Fishman posed no threat to harm the public in the future. Id.
In the present case, and in Fishman, the attorneys engaged in a pattern of offensive and uninvited sexual contact while abusing their positions of authority. In both cases, the attorneys engaged in sexual misconduct that involved vaginal penetration, but not sexual intercourse. Not surprisingly, the attorneys in both cases denied the inappropriate conduct, and both were found to be not credible. Respondent and Fishman presented similar mitigating evidence.
We believe the suspension imposed in this case should be longer than the suspension imposed in Fishman for two reasons. First, Respondent engaged in additional misconduct. In addition to the sexual misconduct, Respondent intentionally lied to police officers when they investigated Quitno's claims. Moreover, he lied to the Panel during the hearing. Respondent refused to acknowledge his lies even when contrary statements had been recorded by Quitno. Fishman did not involve similar misconduct.
Second, a longer suspension is necessary to deter similar misconduct in the future. It has been nearly ten years since the Illinois Supreme Court decided the Rinella case. In that case, the Court unequivocally found it is an ethical violation for an attorney to engage in any sexual relations with a client. Abusive relations are unnecessary to render the sexual conduct improper. Numerous subsequent decisions have reiterated the holding of Rinella. Some of those cases have resulted in severe sanctions, while others have resulted in lesser sanctions. Despite the obvious ethical problems implicit in an attorney having sexual relations with a client, it appears some attorneys have not gotten the message, and are not fulfilling their ethical obligations in this regard. Accordingly, we are recommending a somewhat harsher sanction in this case to send a
strong message to Respondent and to all other members of the Bar that sexual contact, of any kind, nature or description, with a client is improper and will not be tolerated.
We want to emphasize that we are not making a moral judgment about whether or not consenting adults should, or should not, participate in otherwise lawful sexual activities, including the acts engaged in here between Quitno and Respondent. It is because those activities taint the attorney-client relationship that they are unacceptable and cannot be tolerated. When an attorney and a client are involved, there can be no meaningful consent. Whether or not acquiesced in, or even initiated, by the client, the sexual activity must be deemed to have been involuntary and coerced because the client is not in a position to withhold his or her consent.
Neither are we unaware that Quitno may not have been totally innocent in behaving in a manner she knew would place Respondent in a position in which she could exert pressure on him to significantly reduce his fees, or, having unexpectedly found herself in such a position, exerting such pressure. Whether she intended to ensnare him, or serendipitously (for her) found she had him in a compromising position, is of no moment. It is clear to us that both Quitno and Respondent knew he could hardly resist her veiled threats of public disclosure without exposing himself to substantial professional and personal embarrassment, at the very least, and, as happened in part, to regulatory and criminal jeopardy, at worst. But Quitno's actions and/or her motives are not at issue here: her motives may have been innocent or she may have been calculating and deceitful, but Respondent failed to live up to his professional responsibilities, and it is that failure we are condemning.
Lastly, there is another reason why a sexual relationship between an attorney and client cannot be countenanced, as is well demonstrated by this case. Because it constitutes a per se violation of the Rules of Professional Conduct, as enunciated by the Supreme Court, it
automatically creates a situation in which a client-sex partner can, merely by reason of the existence of the relationship and nothing more, exert an undue and adverse influence over the attorney's ability to exercise independent professional judgment, entirely separate and apart from any ancillary issues such as consent or the lack thereof, coercion, or physical or mental abuse. It constitutes intolerable unprofessional behavior.
Considering all of the facts and circumstances of this case, we believe suspension of Respondent from the practice of law for a period of 15 months will best satisfy the goals of our disciplinary system, with a special emphasis on protecting the public by acting as a deterrent to other members of the Bar from engaging in similar misconduct, and we so recommend.
Date Entered: January 19, 2007
|Michael C. Greenfield, Chair, Michael L. Bolos and Cheryl M. Kneubuehl, Hearing Panel Members|