Filed October 14, 2008

In re Benjamin Edward Harrison
Respondent-Appellant

Commission No. 06 CH 36

Synopsis of Review Board Report and Recommendation
(October 2008)

The Administrator charged Harrison with making false statements about a circuit court judge and the Cook County State's Attorney's Office and behaving disruptively in court. Harrison denied all allegations of misconduct.

The Hearing Board recommended that Harrison be censured after finding that he made a statement that he knew was false or with reckless disregard as to its truth or falsity concerning the integrity of a judge and adjudicative officer, engaged in conduct that is prejudicial to the administration of justice, and engaged in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

Harrison argued before the Review Board that his statements were protected by the First Amendment, the Hearing Board applied an incorrect standard when considering whether he committed misconduct, the Hearing Board erroneously restricted his examination of a witness, the Administrator's closing argument was unfair and inflammatory, and the recommended sanction should be less than a censure.

The Review Board rejected all of Harrison's arguments and affirmed the Hearing Board's factual findings and findings of misconduct. The Review Board recommended that Harrison receive a censure.

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

In the Matter of:

BENJAMIN EDWARD HARRISON,

Respondent-Appellant,

No. 6231531.

Commission No. 06 CH 36

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

The Administrator-Appellee filed a one-count complaint against Respondent-Appellant, Benjamin Edward Harrison, alleging that he engaged in misconduct when he filed motions containing false statements about a circuit court judge and the Cook County State's Attorney's Office and behaved disruptively in court. Specifically, the Administrator alleged that Harrison made a statement that he knew was false or with reckless disregard as to its truth or falsity concerning the integrity of a judge and adjudicative officer, in violation of Rule of Professional Conduct 8.2(a); engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and engaged in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. Harrison denied all of the factual allegations as well as the allegations of misconduct.

The Hearing Board found that Harrison committed the charged misconduct and recommended that he receive a censure. This matter comes before the Review Board on Harrison's exceptions. He argues that 1) the Administrator made an unfair and inflammatory closing argument, 2) the Hearing Board failed to consider whether his statements were protected by the First Amendment, 3) the Hearing Board applied an incorrect standard when considering

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whether he committed misconduct, 4) the Hearing Board erroneously restricted his examination of a witness, and 5) the Hearing Board's sanction recommendation is inconsistent with applicable precedent and does not account for mitigating factors. Harrison contends that the findings of misconduct should be reversed or, in the alternative, his sanction should be "less than a censure."

The following evidence was adduced at the hearing. Harrison represented Pedro Rey in a criminal matter. Rey's case was assigned to Cook County Circuit Court Judge John J. Fleming. When Harrison filed his appearance, he also filed a motion to continue the trial date of November 3, 2003. Judge Fleming continued the trial until January 12, 2004, and informed Harrison that he would not grant another continuance because the case was a year old.

On January 24, 2004, Harrison filed another motion to continue the trial. He did not appear personally to present the motion. An investigator hired by Harrison presented it and told the court that Harrison was involved in another trial. In relevant part, Harrison asserted in the motion that the proceedings in his client's case were a "criminal court fiasco" and "may also necessitate criminal charges for obstruction of justice, malicious prosecution, and/or prosecutorial misconduct as well as conspiracy to do same by the Circuit Court of Cook County, Criminal Division, located at 2600 S. California, in Chicago, IL, in room 102." Harrison signed the motion "Indignantly Submitted."

Harrison admitted that at the time he filed his motions for continuance he had no information as to whether the statements about the court were true or false. Harrison went on to explain that the statements were not direct allegations, but "allusions" to a "possible need to pursue this or that avenue of criminal proceedings."

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When Harrison next appeared before Judge Fleming on January 21, 2004, he filed an amended motion to continue the trial date. The amended motion contained the allegations regarding obstruction of justice, malicious prosecution and prosecutorial misconduct. Harrison told Judge Fleming that he could not be ready for trial until September 2004. Judge Fleming set the trial for March 2004. According to Judge Fleming, Harrison then began raising his voice, raised the motion over his head and said loudly that he would "jam these pleadings down the throat of the record as much as I feel I need to."

Harrison testified that he is a demonstrative person and has a loud voice. He denied that he yelled and posited that his behavior was due to his lack of experience in the criminal court and his perception that his client was being treated unfairly.

Judge Fleming held Harrison in direct contempt of court and had the sheriff remove him from the courtroom. After one hour, Harrison was returned to the courtroom, where he apologized. Judge Fleming purged the contempt and dismissed the contempt proceedings. Harrison withdrew from the Rey case on March 24, 2004.

The Hearing Board found that Harrison made false and unfounded statements about the circuit court and State's Attorney in his two motions for continuance, thereby violating Rules 8.2(a), 8.4(a)(5), and Supreme Court Rule 770. It further found that Harrison's statements and behavior in court constituted misconduct. The Hearing Board determined that none of Harrison's statements were protected by the First Amendment. Based on the nature of Harrison's misconduct, the factors in aggravation and mitigation, and the relevant precedent, the Hearing Board recommended that Harrison be censured.

We begin by noting that the Administrator bears the burden of proving the charged misconduct by clear and convincing evidence. In re Timpone, 208 Ill.2d 371, 380, 804

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N.E.2d 560 (2004). We defer to the Hearing Board's factual findings and will not disturb them unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961 (2006) A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill.2d at 542, 848 N.E.2d 961. We apply de novo review to the Hearing Board's legal conclusions, including whether the facts found constitute the charged misconduct. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E.2d 906 (1994). Harrison does not contend that any of the Hearing Board's findings are against the manifest weight of the evidence.

Harrison argues first, without citation to authority, that the Administrator's closing argument was unfair and inflammatory because the attorneys in some of the cases cited by the Administrator were disbarred (People v. Metzen, 291 Ill.55, 125 N.E.734 (1920); In re Jafree, 93 Ill.2d 450, 444 N.E.2d 143 (1983); In re Palmisano, No. 92 CH 109, petition for leave to file exceptions denied, No. M.R. 10116 (May 19, 1994)). The Administrator notes that, in both civil and criminal cases, improper closing remarks are not grounds for reversal unless they were so prejudicial that they denied the other party a fair trial. Se People v. Montgomery, 373 Ill. App. 3d 1104, 1114, 872 N.E.2d 403 (4th Dist. 2007); LID Associates v. Dolan, 324 Ill. App. 3d 1047, 1065, 756 N.E.2d 866 (1st Dist. 2001). In the case before us, the Administrator's closing argument was neither improper nor prejudicial.

Contrary to Harrison's contention, counsel for the Administrator did not seek disbarment in this case or rely on the cited cases with respect to her sanction argument. Rather, she cited the cases to refute Harrison's contention that his statements were protected by the First Amendment. Counsel for the Administrator plainly stated that Harrison's misconduct did not rise to the level of that for which attorneys have been disbarred and cited three different cases in

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support of her request for a censure. The Hearing Board did not cite any of the cases to which Harrison objects in its discussion of the sanction, so there is no basis for his contention that the Hearing Board unfairly compared his misconduct to that of disbarred attorneys.

Moreover, Harrison's disagreement with the cases cited by the Administrator does not, without more, constitute prejudice. The Administrator was presenting argument, and Harrison was free to refute the argument with other legal authority. The Hearing Board Chair specifically asked Harrison at the end of his closing argument if he had any legal citations to submit to the Hearing Board, and Harrison answered that he did not. Nor did he object to any portion of the Administrator's closing argument. For all of the foregoing reasons, Harrison has failed to establish any reversible error with respect to the Administrator's closing argument.

Next, we address Harrison's argument that the Hearing Board failed to consider whether his statements about Judge Fleming were protected by the First Amendment to the United States Constitution. Harrison is simply incorrect that the Hearing Board did not consider the issue. On the contrary, the Hearing Board specifically addressed Harrison's First Amendment argument, noting the cases cited by the Administrator and Harrison's failure to cite any legal authority, and decided the issue against Harrison based on settled law. Harrison presented no legal authority to the Hearing Board or to this Board that refutes the established law that the First Amendment does not protect false statements or those made with reckless disregard for the truth. See Palmisano, No. 92 CH 109, Review Board Report and Recommendation at 5-6; In the Matter of Palmisano, 70 F.3d 483, 487 (7th. Cir. 1995); and In re Betts, No. 90 SH 49 (Review Board, June 16, 1993), approved and confirmed, No. M.R. 9296 (Sept. 27, 1993). It is equally well-established that, when it comes to ethical obligations, lawyers do not enjoy the same First Amendment freedoms as private citizens. See Betts, No. 90 SH 49, Review Board Report

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and Recommendation at 15, and cases cited therein. Harrison makes no effort to address the relevant case law, much less persuade us that it should not apply to him. Consequently, he has not established that the Hearing Board failed to consider his First Amendment argument, or that its rejection of his First Amendment argument was erroneous.

We also reject Harrison's contention that the Hearing Board applied "a slander and libel standard" when determining whether the Administrator met his burden of proof. It is unclear exactly what Harrison means by a "slander and libel standard," but, nonetheless, it is apparent from its Report and Recommendation that the Hearing Board correctly applied the clear and convincing standard of proof to all of the charges.

Harrison further argues that he was denied the opportunity to question Judge Fleming about possible bias against him. We will not reverse the Hearing Board's rulings on evidentiary issues unless the Hearing Board abused its discretion. In re Petrulis, 96 CH 546 (Review Board, Dec. 9, 1999) at 14, approved and confirmed, No. M.R. 16556 (June 30, 2000). There was no abuse of discretion in this case.

Harrison's argument on this issue is less than clear. He appears to refer to two instances when the Hearing Board sustained relevance objections during his questioning of Judge Fleming. First, the Chair sustained the Administrator's objection when Harrison asked Judge Fleming, "What is the difference between Mr. Harrison's request to continue the trial for a further length of time and the time under which the subsequent attorney finally was allowed to dispose of the matter?" Later, the Chair sustained the Administrator's objection when Harrison asked Judge Fleming if the Assistant State's Attorney who was handling the Rey case was running for judge at the time of the events at issue. Harrison asserts that he should have been allowed to put forth evidence that Judge Fleming was biased toward him or had a motive for

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wanting to rush Rey's trial. Harrison does not explain how his questions would have elicited evidence of bias or improper motive, nor did he make an offer of proof below.

The failure to make an offer of proof of excluded testimony results in a waiver of that issue for purposes of review. Malanowski v. Jabamoni, 332 Ill. App. 3d 8, 14, 772 N.E.2d 967 (1st Dist. 2002). There is no support in the record for Harrison's assertion that Judge Fleming's testimony, had it been allowed, would have demonstrated bias or improper motive. Therefore, Harrison has failed to preserve this issue for review.

Having found no merit to any of Harrison's contentions of error, we recommend that the Hearing Board's findings of fact and findings of misconduct be affirmed in their entirety.

Last, we address the recommended sanction. The Hearing Board's recommendation is advisory. In re Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900 (1981). When making our own recommendation, we bear in mind that the purpose of the disciplinary system is not to punish attorneys but to safeguard the public, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). We strive for consistency when recommending sanctions, but must evaluate each case on its own circumstances. See In re Bell, 147 Ill.2d 15, 37, 588 N.E.2d 1093 (1992). Those circumstances include the nature of the misconduct and any aggravating or mitigating factors. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526 (1991).

Harrison contends, without any citation to authority, that he should receive discipline that is "less than censure." The only form of discipline less than censure is a reprimand. Supreme Court Rule 770(g),(h). We do not believe that a reprimand is appropriate in this case.

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The applicable precedent supports a censure. Our research has not revealed a case in which an attorney who was found to have violated Rule 8.2(a) received only a reprimand. The instant case is most similar to In re Barringer, No. 00 SH 80, petition to impose discipline on consent allowed, No. M.R. 17621 (Sept. 21, 2001). Like Harrison, Barringer made false statements about a judge in a motion filed with the court. Barringer falsely stated, in a motion for substitution of judge, that his client's employer had rejected the judge's loan application due to excessively high credit limits and outstanding obligations. In addition, Barringer falsely alleged that the judge had held an ex parte interview with his client's minor child. Barringer was censured for his misconduct. In light of the similarity between Harrison's misconduct and Barringer's, we agree with the Hearing Board that Barringer supports a censure in the instant case.

Our consideration of the factors in mitigation and aggravation does not alter our recommendation. The only mitigating factors were Harrison's lack of prior discipline and the fact that his misconduct was an isolated incident. In aggravation, the Hearing Board found that Harrison did not express remorse for his actions or recognize the seriousness of his misconduct. These factors are not so significant that they would justify either a downward or upward departure from censure.

Consequently, having considered Harrison's misconduct and all of the relevant circumstances, we recommend that he be censured.

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CONCLUSION

We recommend that the Hearing Board's findings of fact and findings of misconduct be affirmed, and that Respondent, Benjamin Edward Harrison, be censured.

Date Entered: 14 October 2008

Respectfully Submitted,

Stuart R. Lefstein
Gordon B. Nash, Jr.
William R. Quinlan