Filed August 18, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
CHRISTOPHER ANTHONY MILLET,
Commission No. 2006PR00047
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on July 1, 2011 at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Panel of the Hearing Board consisting of Lawrence S. Beaumont, Chair, William M. Dickson, and Fran D. McConnell Williams. Alicia E. Duncan appeared on behalf of the Administrator. Respondent was not represented and did not appear at the hearing. He participated in prehearing proceedings pro se.
PLEADINGS AND PREHEARING PROCEEDINGS
On August 14, 2006, the Administrator filed a one-count Complaint under Supreme Court Rule 761. The Complaint was based on Respondent's conviction for participation in a conspiracy involving the distribution of cocaine and failure to notify the Administrator of his conviction. Respondent was served with the Complaint and accompanying documents on August 25, 2006, while in prison. Respondent has been in prison throughout these proceedings. He participated in telephonic prehearing conferences.
On August 31, 2006, the Supreme Court granted a Petition by the Administrator seeking to convert the interim suspension, on which Respondent had been placed in August 2005 under Rule 774, to a suspension until further order of the Court under Supreme Court Rule 761(b).
On December 11, 2006, within the time the Chair allowed to respond to the Complaint, Respondent filed a Motion to Dismiss. Because Respondent was in the process of appealing his conviction, proceedings before the Hearing Board were stayed consistent with Supreme Court Rule 761(d). The remaining portions of Respondent's Motion were entered and continued.
On December 14, 2007, Respondent's conviction was affirmed, but his case was remanded for resentencing.
After the conviction was affirmed, the Chair granted, over Respondent's objection, a motion the Administrator had previously filed seeking amend the Complaint and file a First Amended Complaint ("Motion to Amend"). The Motion to Amend sought to add additional counts to the Complaint because the Inquiry Board had considered allegations of additional, unrelated misconduct and determined Respondent should be charged with misconduct arising out of the additional incidents.
On April 7, 2008, Respondent filed a Motion to Dismiss Administrator's First Amended Complaint and Petition to Convert Interim Suspension Pursuant to Supreme Court Rule 774 to Suspension Pursuant to Supreme Court Rule 761(b) And Alternatively An Answer To The "First Amended Complaint" ("Motion to Dismiss"). Ultimately, Respondent's Motion to Dismiss was denied, but the Answer included in that pleading was treated as Respondent's Answer.
In his Answer, Respondent admitted some of the factual allegations of Count I of the Amended Complaint, asserted it was the responsibility of the attorney representing him in the criminal proceedings to notify the ARDC of the conviction, and denied misconduct. Respondent
neither admitted nor denied most of the factual allegations of Counts II through IX. He denied other factual allegations of those Counts and denied misconduct.
In the meantime, on January 7, 2008, Respondent filed a motion seeking disbarment on consent. While this motion was pending, proceedings before the Hearing Board were stayed. The Supreme Court denied the motion for disbarment on consent on April 23, 2008, given the differing positions of the parties as to the conduct for which disbarment should be imposed. The Administrator sought to have Respondent disbarred based on the conviction and the additional matters charged in the proposed First Amended Complaint. Respondent sought to limit the conduct for which disbarment was imposed to the conduct leading to his conviction.
As Respondent had moved for rehearing in the criminal case, proceedings were further stayed pending final resolution of Respondent's criminal appeal. By March 9, 2010, the stay was lifted, as Respondent's appeal had been dismissed.
In answering discovery requests by the Administrator, Respondent admitted all the requests concerning Count I, which involved the criminal conviction, but asserted his Fifth Amendment rights as to all requests concerning Counts II through IX. At a prehearing conference on January 24, 2011, Respondent confirmed he would assert the Fifth Amendment in relation to issues involving Counts II through IX.
At the March 16, 2011 prehearing conference, the hearing was scheduled for June 6, 2011. During that prehearing conference, Respondent suggested he would waive his appearance at the hearing, as his participation would be minimal. The Chair stated, if Respondent changed his mind and decided he wanted to participate in the hearing, Respondent could file something and a prehearing could be scheduled.
On May 24, 2011, the Administrator filed a Motion to Strike Respondent's Answer to Counts II - IX of the First Amended Complaint ("Motion to Strike"). The Motion to Strike was based on the nature of Respondent's Answer to those Counts, his waiver of appearance at the hearing, and the fact that his only response to discovery requests concerning those Counts was to assert the Fifth Amendment. On the Chair's own motion, the June 6, 2011 hearing date was vacated, and a prehearing conference was set for June 10, 2011.
Respondent participated in the June 10, 2011 prehearing conference, at which the Administrator's Motion to Strike was addressed. Respondent objected to the relief requested by the Administrator. However, Respondent became extremely argumentative. As the Chair observed, Respondent's behavior during the conference and refusal to listen or speak in turn interfered with the orderly and effective conduct of the prehearing conference. Ultimately, Respondent stated "I don't want the license" and that he waived all further appearances. Respondent then hung up the telephone, voluntarily discontinuing his participation in the prehearing conference before the conference was concluded.
The written Order entered after the June 10, 2011 prehearing conference granted the Administrator's Motion to Strike, denied Respondent's oral motion for leave to answer further, and re-scheduled the hearing for July 1, 2011. Based on this Order, Respondent's Answer to Counts II through IX was stricken and the allegations of those Counts were deemed admitted, with no further proof of those allegations required.
A copy of the Order was mailed to Respondent. The Order provided a means by which Respondent could arrange to participate in the July 1, 2011 hearing if he wished to do so. Respondent did not make such arrangements and did not participate in the hearing.
The Administrator did not call any witnesses. Administrator's Exhibits 1 through 43 were admitted into evidence. The evidence and admitted facts demonstrate the following:
Following a jury trial, Respondent was found guilty of two federal felonies. Specifically, Respondent was found guilty of conspiracy to knowingly distribute and possess with intent to distribute a controlled substance, specifically 500 grams or more of mixtures containing cocaine, and knowingly attempt to possess with intent to deliver a controlled substance, specifically 500 grams or more of mixtures containing cocaine. (Adm. Exs. 3, 5). Respondent did not inform the Administrator of his conviction.
On June 7, 2006, United States District Court Judge James B. Moran sentenced Respondent to 97 months imprisonment, followed by four years supervised release. (Adm. Ex. 5). Respondent's conviction was affirmed on appeal, but the case was remanded for resentencing, as the amount of drugs involved needed to be determined for sentencing purposes. (Adm. Ex. 6). On remand, Respondent was sentenced to 121 months imprisonment, with four years supervised release. (Adm. Ex. 8).
As shown by the Administrator's exhibits, Respondent had a history of drug addiction. He maintained sobriety for about ten years, during which time he obtained a law degree. In 2003, Respondent relapsed, becoming addicted once again to heroin. At that time, Respondent began buying drugs from Harvey Gooden ("Gooden"). Later, Gooden was arrested and agreed to cooperate with law enforcement officials. (Adm. Ex. 6 at 2-3).
Gooden and Respondent planned to rob a person whom Respondent believed to be a drug dealer. In fact, this individual was working as part of a law enforcement sting operation.
Respondent and Gooden timed the robbery to coincide with the end of the purported dealer's stay in the area, so he would have sold most of his "drugs" and have the most cash, roughly $20,000.00. Under the plan, Gooden, who was a drug dealer himself, would take any remaining narcotics as he would be readily able to sell them. Respondent suggested police officers should participate, to facilitate the planned robbery. Respondent arranged for corrupt officers to do so. Respondent's statements indicated he had worked with officers before in similar robberies, and he described to Gooden why their presence would be helpful. Under the plan, the officers would have their weapons. Respondent also provided a gun to Gooden. (Adm. Exs. 1, 4, 6).
Counts II through VIII
These Counts involve conversion, particularly as Respondent's client trust account was significantly overdrawn as of November 23, 2004. Counts II through VI relate to individual clients or clients injured in a single accident. Counts VII and VIII charge aggregate matters.
Respondent agreed to represent Lawrence Buchanan ("Buchanan") in a claim for damages as a result of injuries Buchanan sustained in a motor vehicle accident on March 18, 2003. On November 21, 2003, Muhammad Alvi, M.D. ("Dr. Alvi") issued a physician's lien, which Respondent received. (Adm. Ex. 9).
Respondent and Buchanan agreed to settle Buchanan's claim for $3,765.00. On or about September 17, 2004, Respondent received a check for that amount from the other driver's insurer, payable to his firm and Buchanan. Respondent or someone acting at his direction endorsed the check and deposited it into his client trust account. (Adm. Ex. 10). Given his contingent fee agreement with Buchanan, Respondent would have been entitled to one-third of the settlement, i.e., $1,255.00.
Respondent should have been holding the remainder, i.e., $2,510.00, to pay Buchanan and Dr. Alvi. Neither of them authorized Respondent to use these funds for his own purposes. On November 23, 2004, before any payment to Buchanan or Dr. Alvi, Respondent's trust account was overdrawn by $1,641.22. (Adm. Ex. 11).
Respondent agreed to represent Antree Fox ("Fox") in a claim for injuries Fox sustained in a motor vehicle accident on August 1, 2003. On December 3, 2003, Dr. James T. Elias issued a physician's lien. (Adm. Ex. 12). A copy was sent to Respondent.
Respondent and Fox agreed to settle the claim for $5,800.00. Respondent received a check for $5,800.00 on or about January 9, 2004 from the other driver's insurer payable to Respondent, Fox, and Elias Chiropractic Clinic. Respondent or someone acting at his direction endorsed the check in his own name, Fox's name, and Elias Chiropractic Clinic and deposited it into his client trust account. (Adm. Ex. 13). Respondent did not have authority to endorse the check on behalf of Elias or to use funds belonging to Elias or Fox for his own purposes.
Given his contingent fee agreement with Fox, Respondent would have been entitled to one-third of the settlement, i.e., $1,933.33. Respondent issued a check to Fox for $1,933.34 on January 30, 2004. (Adm. Ex. 14). Respondent should have been holding the remaining $1,933.33 to pay Elias with any balance to Fox. Neither of them authorized Respondent to use their funds for his purposes. On November 23, 2004, before any payment to Dr. Elias or further payment to Fox, Respondent's trust account was overdrawn by $1,641.22. (Adm. Ex. 11).
Respondent agreed to represent Johnny Johnson ("Johnson"), Shenquella Moore ("Moore") and Fatima Allah ("Allah") in a claim for injuries they sustained in an automobile
accident on November 6, 2003.1 Each client agreed Respondent would receive a contingent fee of one-third of any amount recovered. Each client received treatment at Regen Spinal Institute ("Regen") and signed forms permitting direct payment to Regen of amounts due for its medical services to the client. Respondent received copies of those forms. Regen billed $2,234.00 for its services to Allah, $2,367.00 for its services to Johnson, and, after an apparent correction, $2,187.00 for its services to Moore. As to each client, there were additional charges for treatment from other care providers. (Adm. Exs. 16, 17, 18).
Each claim settled. Pursuant to the settlement, in July 2004, Respondent received checks from the other driver's insurer payable to his firm and the client to whose settlement the check related. Specifically, Respondent received a check for $5,700.00 in settlement of Allah's claim, a check for $5,900.00 in settlement of Johnson's claim, and a check for $6,000.00 in settlement of Moore's claim. (Adm. Exs. 19, 20, 21, 22). Respondent deposited these checks in his client trust account on or about the day he received them. (Adm. Ex. 23).
On July 21, 2004, Respondent issued a check on his trust account to Allah for $1,900.00. On July 22, 2004, he issued a trust account check to Moore for $2,000.00. (Adm. Exs. 24, 25).
As of November 23, 2004, considering the fees due Respondent and the distributions to Allah and Moore, Respondent should have been holding at least $7,834.00 of the aggregate settlement funds. At the time, Respondent had not made any distribution to Johnson or to Regen.
Although no one authorized Respondent to use these funds for his own purposes, on November 23, 2004, Respondent's trust account was overdrawn by $1,641.22. (Adm. Ex. 11).
Al Hardy ("Hardy") and Larry Bady ("Bady") were injured in an automobile accident on September 19, 2003. They retained Respondent to represent them in a claim for their injuries.
Dr. Alvi treated Hardy and Bady. On or about October 29, 2003, Dr. Alvi sent Respondent a physician's lien relating to his treatment of Hardy and Bady. (Adm. Ex. 26).
Each claim settled. Pursuant to the settlement, Geico Insurance Company ("Geico"), which insured the other driver, issued settlement checks payable to Respondent, Dr. Alvi, and the respective client. On or about May 6, 2004, Respondent received a check from Geico for $9,200.00 for Bady's settlement. On or about May 28, 2004, Respondent received a check from Geico for $7,200.00 for Hardy's settlement.
Shortly after Respondent received them, these checks were endorsed and deposited into Respondent's client trust account. Respondent, or someone acting at his direction, endorsed the checks for Dr. Alvi, but Respondent did not have authority to do so. (Adm. Exs. 28, 30, 31).
On May 10, 2004, Respondent issued a check on the trust account to Bady for $3,066.67. He issued a trust account check to Hardy on June 3, 2004 for $2,400.00. (Adm. Exs. 29, 32).
After these distributions, and considering his agreements with Bady and Hardy for a one-third contingent fee, Respondent should have been holding at least $5,466.66 from the aggregate settlement amounts in these two cases. Bady, Hardy, and Dr. Alvi never authorized Respondent to use these funds for his own purposes. However, on November 23, 2004, before any payments to Dr. Alvi or any further payments to Bady or Hardy, Respondent's trust account was overdrawn by $1,641.22. (Adm. Ex. 11).
Nicole Boyd retained Respondent to represent her in a claim for injuries she sustained in an automobile accident on August 15, 2003. Boyd received treatment from Regen, which sent Respondent a notice of physician's lien. (Adm. Ex. 33). Boyd incurred medical expenses of $2,210.00. (Adm. Ex. 36).
Boyd's claim settled. Pursuant to the settlement, on or about June 15, 2004, Respondent received a check, payable to his office and Boyd, for $7,000.00. Respondent deposited the check into his trust account and, from that account issued a check to Boyd for $2,456.67 on June 22, 2004. (Adm. Exs. 34, 35, 37).
Under his agreement with Boyd for a one-third contingent fee, Respondent was entitled to $2,333.33 of the settlement. Taking into consideration that amount, as well as the payment to Boyd, Respondent should have been holding $2,210.00 from the Boyd settlement. Neither Boyd nor Regen authorized Respondent to use these funds for his own purposes.
On November 23, 2004, before any payment to Regen or any further payment to Boyd, Respondent's client trust account was overdrawn by $1,641.22. (Adm. Ex. 11).
Between February 9 and October 25, 2004, Respondent received checks for settlements in 24 separate matters. These checks totaled more than $175,000.00. These checks were payable to Respondent's office, the respective clients, and the clients' medical providers. Respondent endorsed the checks with the names of all the payees and deposited the checks into his trust account. None of the medical providers authorized Respondent to endorse the settlement checks on their behalf. On November 23, 2004, before the medical providers were paid the amounts due to them, Respondent's client trust account was overdrawn by $1,641.22. (Adm. Exs. 11, 38). Respondent did not have authority, from the clients or the medical providers, to use any of the settlement funds for his own purposes.
Respondent received settlement funds totaling $22,189.92 in relation to five separate client matters. He received one check on February 17, 2004, one on May 6, 2004, and three on
August 18, 2004. Respondent, or someone acting at his direction, endorsed the checks with the names of the clients and deposited them in his trust account. None of these clients authorized Respondent to endorse the settlement checks on their behalf or to use the funds to which the clients were entitled. On November 23, 2004, before payment to any of these clients, Respondent's client trust account was overdrawn by $1,641.22. (Adm. Ex. 43).
In October 2003, Carolyn Owusu ("Owusu") retained Respondent to represent her in a claim for personal injuries she had sustained in September 2003 when her car was struck by a Chicago Transit Authority ("CTA") bus.
Respondent filed a lawsuit for Owusu against the CTA on September 24, 2004. The case was dismissed, on the CTA's motion, due to Respondent's failure to file a notice of the claim within six months of the injury, as required by statute. 70 ILCS 3605/41. (Adm. Exs. 39, 40).
Respondent never told Owusu her claim had been dismissed. When Owusu telephoned Respondent's office, numerous times, to inquire about her case, Respondent's staff told Owusu her matter was progressing. Respondent's staff made those statements at Respondent's direction. Respondent knew or should have known those statements were false.
Evidence in Aggravation and Mitigation
Respondent was a leader in the conspiracy, and he was the one who arranged for police officers to be involved. (Adm. Ex. 4 at 10, Adm. Ex. 6 at 2).
Both Judge Moran and Judge Ronald A. Guzman, who presided at the resentencing hearing, commented on the difference between the lawyer-like behavior of which Respondent was clearly capable and his "gang banger" demeanor apparent from taped conversations in evidence in the criminal case. (Adm. Ex. 4 at 12; Adm. Ex. 7 at 43).
The $2,210.00 which Respondent did not remit to Regen for Boyd was the subject of action against Boyd by a collection agency in July 1, 2005. (Adm. Ex. 42).
Respondent was placed on notice, before he filed suit for Owusu, of the requirement that a notice of claim be filed with the CTA. He was sent a copy of a letter dated December 8, 2003, from a CTA Claims Analyst to Owusu, enclosing a copy of Section 41 of the Metropolitan Transit Authority Act. (Adm. Ex. 41). This section includes the notice of claim requirement. (Adm. Ex. 39 at 13-14).
Respondent refused to participate in the hearing. His refusal was voluntary and his behavior during several of the prehearing conferences was extremely disruptive.
Respondent did not present any mitigating evidence. Some potentially mitigating factors appear in the Administrator's exhibits. Specifically, despite a history of drug addiction, Respondent achieved and maintained sobriety for about ten years before relapsing. (Adm. Ex. 6 at 3). At his sentencing hearings, Respondent stated he had been physically and mentally debilitated by the treatment he had been receiving, prior to the misconduct charged, for hepatitis C. Before his relapse into drug use, Respondent had experienced a number of personal problems. (Adm. Ex. 4 at 31, Adm. Ex. 7 at 37-39). Respondent also stated his use of heroin had a devastating impact on him and on his law practice. (Adm. Ex. 7 at 40).
Respondent has no prior discipline.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator has the burden of proving the misconduct charged by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). While less stringent than the criminal standard of proof beyond a reasonable doubt, clear and convincing
evidence requires more than the usual civil standard of a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); People v. Williams, 143 Ill. 2d 477, 484, 577 N.E.2d 762 (1990). There must be a high level of certainty to meet this burden. In re Stephenson, 67 Ill. 2d 544, 556, 367 N.E.2d 1273 (1977). Clear and convincing evidence means a degree of proof which, considering all the evidence, produces a firm and abiding belief it is highly probable the proposition at issue is true. Cleary & Graham, Handbook of Illinois Evidence, sec.301.6 (9th ed. 2009).
The Administrator met his burden and established Respondent engaged in all the misconduct charged in the First Amended Complaint.
Respondent was convicted of two very serious federal felonies. Respondent masterminded a scheme whereby he partnered with a known drug dealer to steal cash and drugs from another individual Respondent believed to be a drug dealer. Respondent arranged for police participation in the robbery, an element that would facilitate the robbery, limit resistance by the intended target, and provide a means for avoiding apprehension if legitimate authorities became aware of the incident while it was in progress. There is a significant risk of violence inherent in any robbery of a drug dealer, particularly given the amount of cash anticipated here. That risk was increased here, as Respondent's behavior insured weapons would be present. Respondent's conduct in enlisting assistance from corrupt police officers is an obvious perversion of the legal system which, as an attorney, Respondent had sworn to uphold.
Under Supreme Court Rule 761(a), an attorney convicted of a crime is required to notify the Administrator of his or her conviction. Respondent did not comply with this obligation.2
Therefore, as to Count I, we find Respondent:
committed a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct of 1990 ("Rules");
engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4);
engaged in conduct which is prejudicial to the administration of justice in violation of Rule 8.4(a)(5);
failed to notify the Administrator of his conviction in writing within 30 days after entry of the judgment of conviction in violation of Supreme Court Rule 761(a); and
engaged in conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.
Counts II through VIII
As to each of these Counts, the admitted allegations and Exhibits demonstrate Respondent received settlement funds on behalf of his clients and deposited those funds in his client trust account. That account was overdrawn before Respondent had properly disbursed all the settlement funds to which others were entitled. Conversion occurs whenever the balance in an account into which funds belonging to another have been deposited falls below the amount due to the other person. In re Elias, 114 Ill. 2d 321, 333, 499 N.E.2d 1327 (1986).
In addition, some Counts, i.e., Counts II, VII, and VIII, expressly charged Respondent, without authority, used for his own purposes funds to which his clients and/or their medical providers were entitled. Those allegations were deemed admitted when the Administrator's Motion to Strike was granted. These facts further establish conversion; which involves taking funds or other property belonging to another, without authority, permanently or for an indefinite time. In re Thebus, 108 Ill. 2d 255, 259, 483 N.E.2d 1258 (1985).
Respondent was also charged in these Counts with failing to promptly deliver funds a client was entitled to receive. As to Count II, Count IV as it relates to Johnson, and Count VIII, Respondent had not released funds to clients before his account became overdrawn. Thus, this charge is clearly established as to these Counts.
The charge under Rule 1.15(b) is also established as to the remaining Counts. As to those Counts, Respondent failed to pay his clients' medical providers before his account became overdrawn. Given all the circumstances, including the fact that the allegations of these Counts have been deemed admitted, it is reasonable to infer Respondent's conduct violated Rule 1.15(b). Respondent's clients would have been entitled to any amount remaining after their medical providers' bills were paid. In the event medical providers were not paid, the clients would have been ultimately liable and subject to collection efforts, as occurred with Boyd.
Counts II through VIII also charge Respondent with engaging in conduct involving dishonesty and conduct that tends to bring the legal profession into disrepute. Both charges are proven here. Conversion of funds clearly brings the legal profession into disrepute, particularly where, as here, there is a pattern of conversion. In re Lewis, 118 Ill. 2d 357, 362-63, 515 N.E.2d 96 (1987). We also find Respondent engaged in conduct involving dishonesty given the significant pattern of conversion and misuse of funds Respondent should have paid to his clients and their medical providers present in this case. In addition, on multiple occasions, Respondent endorsed, or directed someone else to endorse, a check in the name of another person even though Respondent did not have authority to do so. This constitutes dishonest conduct in and of itself. It also supports the inference, which we draw, that there was a dishonest element present in the manner in which Respondent dealt with funds belonging to others in general, encompassing all of the matters charged in Counts II through VIII.
Therefore, as to Counts II through VIII, we find Respondent:
engaged in conversion;
failed to promptly deliver to a client funds the client was entitled to receive in
violation of Rule 1.15(b);
engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in
violation of Rule 8.4(a)(4); and
engaged in conduct which tends to defeat the administration of justice or bring the
courts or legal profession into disrepute in violation of Supreme Court Rule 770.
Respondent was retained to represent Owusu in an action against the CTA before the time for filing the requisite notice of claim expired. He did not file the notice of claim, even though there was evidence suggesting he was placed on actual notice a notice of claim was required. Because Respondent failed to file the notice of claim, Owusu's case was dismissed, with prejudice. Despite this fact, Respondent never notified Owusu her case had been dismissed, and, acting upon Respondent's instructions, his staff falsely told Owusu her claim was "progressing" when she called for a status.
Not every error by an attorney constitutes professional misconduct. In re Mason, 122 Ill. 2d 163, 169-70, 522 N.E.2d 1233 (1988). Here, however, Count IX stands unanswered and has been deemed admitted. The evidence the Administrator presented does not contradict the allegations of this Count. Given these circumstances, we do not analyze the sufficiency of the evidence to prove those allegations. In re Maros, 94 CH 430, M.R. 12639 (Sept. 24, 1996) (Review Bd. at 13). Therefore, we find as to Count IX Respondent:
failed to provide competent representation to a client in violation of Rule 1.1(a);
failed to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3;
failed to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information in violation of Rule 1.4(a);
failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation in violation of Rule 1.4(b);
failed to make reasonable efforts to expedite litigation consistent with the interests of the client in violation of Rule 3.2;
engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4);
engaged in conduct which is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and
engaged in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.
Certain principles guide us in determining the discipline to recommend. The sanction must serve the purposes of the disciplinary system, which are to safeguard the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994). The nature of the misconduct is an important consideration. In re Bell, 147 Ill. 2d 15, 37, 588 N.E.2d 1093 (1992). Aggravating and mitigating factors are also relevant. In re Ring, 141 Ill. 2d 128, 145, 565 N.E.2d 983 (1990). Consideration also may be given to whether the sanction will help preserve public confidence in the legal profession. In re Gorecki, 208 Ill. 2d 350, 361, 802 N.E.2d 1194 (2003).
Respondent's crimes are extremely serious and represent the most egregious professional misconduct the members of this panel have encountered. As Judge Guzman commented in
sentencing Respondent on remand, it is quite frightening to have an attorney, a person involved in the legal system, engage in serious criminal activity, use a police officer to "help him rip off drug dealers," and act and sound like a gang banger or drug dealer while doing so. (Adm. Ex. 7 at 43). Judge Guzman observed:
I don't frankly know of a series of actions that would more tend to undermine the safety of our community…than those; drugs, violence, the perversion of our system of law enforcement, the betrayal of his professional duties and responsibilities as an officer of the court ….
(Adm. Ex. 7 at 43-44).
We fully concur in these observations. The conduct that led to Respondent's conviction alone warrants disbarment. See In re Harper, 91 CH 569, M.R. 9645 (Jan. 25, 1994); In re Schroeder, 91 CH 487, M.R. 8891 (Mar. 13, 1993).
In addition to his flagrant criminal misconduct, Respondent engaged in multiple acts of conversion. While the exact amount converted is not clear, it is clear Respondent converted a very sizable sum. Count VIII alone involves conversion of over $22,000.00 from five separate clients. Conversion of client funds is a gross violation of an attorney's responsibilities to his or her clients, warranting disbarment when no mitigating factors are present. In re Rotman, 136 Ill. 2d 401, 423, 556 N.E.2d 243 (1990).
But for the lack of prior discipline, there are no mitigating factors here. By failing to participate in the hearing, Respondent forfeited the opportunity to present any additional evidence in mitigation. Under these circumstances, disbarment would be warranted, for the misconduct in Counts II through IX alone, even though Respondent has not been disciplined in the past. In re Triplett, 05 CH 67, M.R. 21016 (Sept. 20, 2006); In re Roytenberg, 04 CH 48, M.R. 20155 (May 20, 2005).
Respondent's behavior during these proceedings also has demonstrated a distain for the disciplinary system. This represents a serious aggravating factor. In re Maye, 2010PR00057, M.R. 24389 (Mar. 21, 2011). Respondent, of his own free will, opted not to participate in the hearing. His behavior during the final prehearing conference was disruptive and contumacious. A respondent's disregard for the disciplinary process casts serious doubt upon his or her ability to represent clients. In re Levinson, 71 Ill. 2d 486, 492-93, 376 N.E.2d 998 (1978).
We recommend Respondent be disbarred.
Date Entered: August 18, 2011
|Lawrence S. Beaumont, Chair, with William M. Dickson, and Fran D. McConnell Williams, Hearing Board Members.|
1 The Amended Complaint refers to the client as Johnny Johnston. This Report uses Johnson, consistent with the Exhibits. (Adm. Ex. 18).
2 Respondent asserts the attorney who represented him in the criminal case may have notified the Administrator of Respondent's conviction. However, there is no evidence this occurred. Therefore, we express no opinion as to whether an attorney can delegate to another person the attorney's responsibility to notify the Administrator of a conviction.