Filed June 23, 2009
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
HOWARD JOEL TATAR,
|Supreme Court No. M.R. 21375
Commission No. 06 RT 3007
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on September 9, 2008, and January 27 and 28, 2009, at the Chicago, Illinois offices of the Attorney Registration and Disciplinary Commission ("ARDC") before the Panel of John A. Guzzardo, Chair, Wendell D. Hayes, and Joseph J Calvanico. Tracy L. Kepler represented the Administrator of the ARDC. The Petitioner appeared and was represented by Frederic A. Mendelsohn and Daniel S. Klapman.
Petitioner was licensed to practice law in the State of Illinois in 1972. On September 19, 2003, the Illinois Supreme Court granted his motion to strike his name from the Roll of Attorneys pursuant to Supreme Court Rule 762(a). Prior to filing this motion, Petitioner had been convicted in Wisconsin state court of one count of child enticement. He was sentenced to ten years imprisonment, which was stayed pending a period of five years probation and five years extended supervision, including a one-year work release program (stayed after six months), 200 hours of community service, no supervised contact with minors, computer use limited for work purposes, and registration as a sex offender.
This matter came before the Hearing Board on Petitioner's petition for reinstatement that was filed on December 28, 2006, pursuant to Supreme Court Rule 767. In his petition, Petitioner acknowledged his misconduct and stated he is currently fit to resume the practice of law.
The Administrator filed objections to the petition.
At the hearing Petitioner presented his own testimony, and the testimony of six witnesses. Petitioner tendered exhibits 1-17, which were admitted into evidence. The Administrator presented the testimony of two witnesses, and tendered exhibits 1-6 which were admitted into evidence.
Petitioner is 62 years old. He has been married to Lynn Tatar for 35 years, and has two adult children. (Tr. 47-49).
Petitioner was licensed to practice law in 1972. He worked for Continental Illinois National Bank in the personal trust administration department for 28 years, until September 2000. He did not practice law, but his legal training helped him perform his job. (Tr. 64). During that period of time, the bank went through several mergers, acquisitions and reorganizations (ultimately becoming Bank of America) and Petitioner held various positions in the trust department. (Tr. 56-62). During the last acquisition, the trust department was restructured and significant changes were made to Petitioner's position and the way the department conducted business. Petitioner had been working at that bank for 25 years, and the changes significantly reduced his opportunities for advancement and created a difficult and frustrating work environment. (Tr. 62-64). In March 2000, Petitioner took a leave of absence
because of his arrest. In September 2000, he lost his job after the Bank laid off 10,000 employees nationwide. (Tr. 65).
In January 2001, Petitioner began working for the Bank of Waukegan as a manager, vice president and senior trust officer. (Tr. 66-67). He currently works for that bank, which is now named Norstates Bank, as senior vice president, chief investment officer and senior trust officer. (Tr. 67-68).
Petitioner was arrested on February 9, 2000, in Milwaukee Wisconsin, and charged with child enticement. (Tr. 68). On February 8, 2000, Petitioner engaged in a conversation on the internet with a person he thought was a 13 year old girl. He traveled to Milwaukee the following day to engage in oral sex with the girl. After his arrest, he learned that he was actually conversing with an undercover Milwaukee police officer. (Tr. 69-70). Petitioner's arrest was covered by the Chicago newspapers, and radio and television stations. (Tr. 71, 93). His children, who were at college, refused to talk to him after his arrest. (Tr. 94).
Petitioner hired Steven Kohn, a Wisconsin attorney, to defend him. Petitioner agreed to a stipulated bench trial, and in September 2000, he was convicted of child enticement. (Tr. 96). In December 2000, he was sentenced to ten years incarceration, which was stayed by five years of probation and five years of supervision. (Tr. 97). Additionally, Petitioner was required to perform 200 hours of community service, complete therapy, register as a sex offender, and perform six months of work release from the Lake County Jail. He could use a computer only for work, and he could only have supervised visitation with children. (Tr. 98-99). Petitioner appealed his conviction, but it was upheld by the appellate court. (Tr. 100).
On February 24, 2000, Petitioner began seeing Dr. Arnold Goldberg, a psychiatrist. (Tr. 71-73). Petitioner wanted to see Dr. Goldberg to deal with the "confluence of events" that lead
to his arrest. (Tr. 74). Petitioner's claimed that his problems began in 1989 when his wife became ill from Lyme disease. She was misdiagnosed until 1994. (Tr. 74, 103-105). Also in 1989, Petitioner's father had a stroke, was paralyzed, and confined to a nursing home, until he died in 1994. He had a falling out with his brother-in-law after his father's death. (Tr. 74, 105-106). In 1996, Petitioner's son developed transmandibular joint disorder (TMJ), which threatened his son's music career. The condition was not successfully treated until 1998. (Tr. 75, 106-109). Additionally, between 1994 and 1998, Petitioner was under increased stress at work, and there were significant changes to his position. (Tr. 75, 109-112). Also in the mid-1990's Petitioner also developed high blood pressure which caused recurrent headaches and impotence. (Tr. 76, 112). He did not discuss any of these problems with his wife, or anyone else, and he and his wife were not physically intimate for an extended period of time. (Tr. 76-77, 87-88, 114). Petitioner became withdrawn and he noticed changes in his personality. (Tr. 77-78).
In the fall of 1996, Petitioner began using his computer to research TMJ, and first entered a chat room for TMJ patients. (Tr. 116-17). He began going into chat rooms to discuss sports, and progressed to sex-related chat rooms. (Tr. 117-18). He went into these chat rooms four to five nights per week. (Tr. 118). He would use the chat rooms to create a persona and build up his self-esteem. (Tr. 119). Petitioner testified that he went into a chat room involving under-aged girls on only one occasion, February 8, 2000. (Tr. 121-22).
Petitioner saw Dr. Goldberg twice per week from February 24, 2000, through December 2002, for a total of 175 to 200 visits. Dr. Goldberg diagnosed Petitioner as having clinical reactive depression. (Tr. 82). Additionally, from mid-2001 and late 2002, Petitioner and his
wife saw a marriage counselor. (Tr. 83). As part of the criminal matter, Petitioner was required to and received sex offender treatment from March 2001 to December 2002. (Tr. 84).
After receiving all of the treatment, Petitioner believes that the various stressors in his life resulted in his depression, and coupled with his inability to communicate caused him to make the bad decisions which lead to his arrest. (Tr. 86, 89, 115-16). It also led him to create a situation where he was could control how other viewed him. (Tr. 86). Petitioner has learned a great deal about himself from his therapy, and would not engage in such conduct in the future. He has learned how to deal with stress, recognize triggering events, and developed the judgment necessary to do what is right. (Tr. 90-92).
In December 2000, Petitioner applied for a position at the Bank of Waukegan. (Tr. 126-27; Pet. Ex. 1). Petitioner's resume did not include two jobs he had as a waiter in 2000, and falsely stated that he still worked at Bank of America. (Tr. 128-29, 355). Petitioner claimed that he did not intend to mislead the prospective employer, but because the police had confiscated his computer he could not make changes to his resume. (Tr. 129-31, 355-56). At the interview with Bank of Waukegan, Petitioner informed them that he was no longer working at Bank of America, and generally stated that he had some legal problems in Wisconsin, without giving any details. (Tr. 131-32, 356-57). At the end of the interview, Petitioner was offered the job as head of the trust department. (Tr. 132).
On January 26, 2001, Petitioner completed a job application for Bank of Waukegan, but failed to answer the question regarding whether he was convicted of a felony. (Tr. 132-37, 357-58; Pet. Ex. 2). He testified that he told representatives of the Bank that he was convicted of a crime, but did not explain anything about it. (Tr. 138-39). Petitioner later learned that a bank must obtain the written consent of state bank regulators when employing a convicted felon. (Tr.
142-43). Because officers at his bank had to answer the regulator's inquiry about Petitioner's conviction, on February 22, 2001, Petitioner drafted a memo explaining his conviction. (Tr. 143-45; Pet. Ex. 3 at 6). Petitioner admitted that the majority of the first paragraph of the memo was inaccurate, but the remaining paragraphs are accurate. (Tr. 147-49). Specifically, Petitioner inaccurately stated that he was "stopped by police while I was traveling on business" and that the case "was built on a foundation of a charge unsupported by facts." (Tr. 149; Pet. Ex. 3 at 6). Petitioner misstated the facts because he hoped by doing so he could retain his job. (Tr. 150).
On March 16, 2001, Petitioner drafted a second memo further explaining his conviction. (Tr. 145-46; Pet. Ex. 3 at 7-8). In that memo, Petitioner also made some inaccurate statements. Specifically, Petitioner stated that he was "in Wisconsin in connection with preparing for a training seminar I was conducting for Bank of America and to meet a business contact." (Tr. 151-52; Pet. Ex. 3 at 7). He also inaccurately stated that "it was a charge for which I was not guilty at all and under which I had committed no offense whatsoever." (Tr. 152; Pet. Ex. 3 at 7). He also incorrectly stated that "I never had any intention or objective to meet anyone as was alleged." (Tr. 153). Petitioner made numerous other inaccurate statements in the memo, denied several facts regarding the conviction, and admitted that the majority of the memo was false. He made the false statements in an effort to keep his job. (Tr. 154-57). When Petitioner wrote the memos, he did not know they would be submitted to state regulators. (Tr. 161). Ultimately, the state regulators allowed Petitioner's continued employment with the Bank. (Tr. 161-62; Pet. Ex. 3 at 9).
Petitioner's duties at the Bank include overseeing the management of trust, estate, and retirement accounts, and the Bank's investments. He also is responsible for the Bank's business development and coordinates outside audits. (Tr. 203-206). Although legal issues sometimes
come up during the course of Petitioner's job, he does not give legal advice and refers the questions to attorneys. (Tr. 211-15).
Part of Petitioner's sentence included five years of probation. (Tr. 162-62; Pet. Ex. 4). He complied with all terms of the probation, including performing 200 hours of community service, completing sex offender treatment, and receiving therapy from Dr. Goldberg, and it was terminated early. (Tr. 162-173; Pet. Exs. 5, 6, 7). Petitioner also registered as a sex offender, and he must remain registered until the end of 2010. (Tr. 173-74, 680). Petitioner was required to be in the work-release program for six months, but it was terminated after three months for good behavior. On weekdays, he slept at a facility in Waukegan, went to work, had dinner with his wife at their home, and went back to the facility. On weekends, he stayed at the facility, but was allowed to spend five hours with his wife. (Tr. 176-77).
Petitioner was active in his synagogue before his arrest, and continued to be active after his arrest. He was the head of the budget committee for the synagogue's fiftieth anniversary, is involved in a couple's club, and is active in the funeral committee. (Tr. 179-80, 374-75). The funeral committee plans funerals for members of the congregation, and performs services in congregants' homes. He was on the funeral committee before and after his conviction. (Tr. 181-82, 375). Petitioner also sings in the synagogue's choir, and takes classes at the Chicago Botanic Gardens. (Tr. 179, 182-83). Petitioner donates unused season tickets to the Chicago White Sox games to various charitable organizations. (Tr. 184-85, 375-76). In 1999, he and his wife started a scholarship fund at Highland Park High School to send students to summer camp programs for music and to provide music lessons. (Tr. 186-87, 377; Pet. Exs. 8, 9).
Petitioner has learned to communicate his feelings and reach out for help when he needs it, and has developed a network of individuals who he can talk to about problems. (Tr. 188-91).
He has faced several stressful situations in his personal and professional life since his conviction, and has been able to constructively deal with those situations. (Tr. 193-99). He has repaired his relationships with his wife and children. (Tr. 200-201). Petitioner takes full responsibility for the crime he committed and he is remorseful. (Tr. 230-31). He would not repeat his misconduct because he has developed the tools and communication skills to deal with the stressors that lead him to commit the crime. (Tr. 231-32). He would be willing to comply with Dr. Stafford Henry's recommendations. (Tr. 232-33).
Petitioner has taken seminars offered by the Illinois Institute for Continuing Legal Education, the Lake County Bar Association, and the Lake County Estate Planning Counsel. He has also attended a two day wealth management course at the Notre Dame University. He also reads numerous publications related to wealth management, trust law and estate planning. He is a member of the Illinois State Bar Association, and receives publications from that organization. (Tr. 221-25; Pet. Exs. 12, 13).
Petitioner stated that it is important to him to regain his law license because it is another step in restoring himself, it would help his employer develop new business, and it would make him more marketable to prospective employers. (Tr. 228-29). Petitioner does not intend to practice law if he is reinstated, but if he did, he would practice in the areas of estates and trusts, estate planning, and elder care. (Tr. 229-30).
Dr. Arnold Goldberg
Dr. Arnold Goldberg has been a board certified psychiatrist and psychoanalyst for 50 years. (Tr. 247, 253-55; Pet. Ex. 14). He has been teaching classes at the Institute of Psychoanalysis since 1966. (Tr. 258). Dr. Goldberg has been an attending psychiatrist at Michael Reese Hospital and Rush-Presbyterian-St. Luke's Hospital, and for more than 20 years
has been a professor at Rush Medical School. He has been the editor and on the editorial staff of the Annals of Psychoanalysis, and the president of the Chicago Analytic Society. (Tr. 261-65; Pet. Ex. 14). Dr. Goldberg is engaged in numerous other professional activities, written more than 80 books and articles, and received honors for teaching and professional excellence. He also maintains a private practice. (Tr. 266- 74; Pet. Ex. 14).
Dr. Goldberg has been Petitioner's therapist since early 2000, and between March 1, 2000, and December 30, 2002, he saw Petitioner twice per week. (Tr. 248, 282-86; Pet. Ex. 15). Dr. Goldberg concluded that Petitioner was suffering from reactive clinical depression. The depression was caused by an extended period of family and work related problems, and his inability to communicate with his wife. (Tr. 283-84, 292-93, 300-301). Petitioner turned to the Internet as way to relieve his depression by developing relationships and having someone to talk to. (Tr. 297-98, 301-307). His subsequent criminal conduct was the result of his depression. (Tr. 347).
Dr. Goldberg was aware of the general facts that led to Petitioner's arrest, and only learned the specific facts after his treatment of Petitioner was completed. Knowing the specific facts did not change Dr. Goldberg's opinions. (Tr. 286-87, 293-96, 337, 346-47). Petitioner was ashamed of his criminal conduct, recognized its seriousness, and was remorseful. (Tr. 287-88, 315-17, 348). Dr. Goldberg believes that if Petitioner had met with a 13 year old girl he would not have gone through with his plan to have sexual relation with her. (Tr. 289-91).
Dr. Goldberg has conducted recent follow-up interviews with Petitioner, and concluded that Petitioner no longer suffers from clinical depression, has been successfully treated, and has an excellent prognosis. (Tr. 249-50, 310-11, 320-21, 330-33; Pet. Exs. 7, 15, 17). Dr. Goldberg opined that although it is theoretically possible that he could become depressed in the future "it is
close to impossible that he would commit that kind of offense that he committed again." (Tr. 250, 320-22). If Petitioner becomes depressed in the future, he has constructive ways to deal with it, including contacting Dr. Goldberg or other doctors. He is also involved in numerous activities that would make subsequent depressions less likely. (Tr. 322-23). He is of the opinion that Petitioner is not a sexual predator, a sexual pervert, or a pedophile, and has no sexual disorder. (Tr. 250-51, 324-26). In Dr. Goldberg's opinion, there is no psychiatric reason that would preclude Petitioner from practicing law. However, Dr. Goldberg has never evaluated an attorney's competency to practice law for a court or disciplinary proceeding. (Tr. 339-40, 343).
Dr. Goldberg disagrees with Dr. Stafford Henry's opinion that Petitioner has "a sexual disorder not otherwise specified" because he believes that Petitioner has no sexual disorder. (Tr. 334-35). Dr. Goldberg also disagrees with Dr. Henry's conclusion that Petitioner is a "minimal risk" to engage in predatorial and criminal conduct, and believes that Petitioner is at no risk to engage in such conduct. (Tr. 335-36). Dr. Goldberg based his opinions essentially on his therapy sessions with Petitioner, and did not review outside materials. (Tr. 345-46, 349).
Lynn Tatar has been married to Petitioner for 35 years. (Tr. 380-81). Mrs. Tatar described her initial shock after Petitioner's arrest, Petitioner's reaction, the media coverage, and other events that occurred in the days following the arrest. (Tr. 382-94). Shortly after his arrest, Petitioner began seeing Dr. Goldberg, and after Petitioner finished the work-release and community service, he and Mrs. Tatar began marriage counseling. (Tr. 394-96, 399). Mrs. Tatar also went to individual therapy. (Tr. 397). She also reiterated the stressful events in Petitioner's life that occurred prior to his arrest, and the lack of communication between them. (Tr. 400-408).
Mrs. Tatar believes that Petitioner has accepted responsibility for is conduct, received effective treatment, and is a different person than he was when he was arrested. (Tr. 410-12). Mrs. Tatar and Petitioner's relationship has also dramatically improved and they communicate well. (Tr. 412-13). Petitioner's relationship with their children is also excellent. (Tr. 416). Mrs. Tatar has seen Petitioner work very hard to restore his life after the arrest, and she is very proud of him. She believes reinstating his law license would be good for his recovery, self-esteem, and career. (Tr. 420-21).
William J. Stawicki
William J. Stawicki is a detective with the Milwaukee Police Department. Between 1996 and 2001, he was assigned to the Internet Crimes Against Children Task Force. (Tr. 518). On February 8, 2000, as part of his duties with the task force, he went on-line and played the role of a 13 year old girl. He entered a chat room titled "I Love Older Men" and had a conversation with an individual who he later identified as Petitioner. During the conversation, Petitioner agreed to meet the girl in Milwaukee the following day for the purpose of engaging in oral sex. The conversation was explicit and detailed. (Tr. 519-22; Adm. Exs. 1, 2, 3, 4).
On February 9, 2000, police officers stopped Petitioner's car at one of the locations where Petitioner agreed to meet the girl, and arrested him. (Tr. 534-35; Adm. Exs. 1, 2). Petitioner identified himself and stated that he was in Milwaukee for a business meeting, but he was unable to name the person he was supposed to meet. (Tr. 536). Detective Stawicki asked Petitioner about his on-line account and screen name, and arrested him. (Tr. 536-37; Adm. Exs. 1, 2). Detective Stawicki had no contact with Petitioner after the arrest, and knew nothing about Petitioner after he was sentenced. (Tr. 543-45).
After a stipulated bench trial, Petitioner was found guilty of a child enticement, a felony. (Adm. Ex. 2, 3). He was sentenced to ten years imprisonment, which was stayed pending a period of five years probation and five years extended supervision, including a one-year work release program (stayed after six months), 200 hours of community service, no supervised contact with minors, computer use limited for work purposes, and registration as a sex offender. (Adm. Ex. 3).
Dr. Stafford Henry
Dr. Stafford Henry is a psychiatrist board certified in internal medicine and forensic psychiatry. Forensic psychiatry involves the interplay between psychiatry and the law. Dr. Henry has performed court-ordered evaluations regarding fitness to stand trial, and has a private practice where he evaluates and treats patients. His private practice consists of general adult, addiction and forensic psychiatry. Evaluations account for 85 to 90 per cent of his practice and treatment of clients the remaining percentage. His clients consist of high-functioning professionals, including doctors, lawyers, and airline pilots. Dr. Henry has received numerous professional honors and awards, and is a frequent lecturer. He has performed at least 1500 fitness to practice evaluations of doctors and lawyers. Dr. Henry has been certified as an expert witness by courts and other tribunals on more than 300 occasions. He was certified as an expert witness in the field of forensic psychiatry in this disciplinary hearing. (Tr. 564-74, 609-20; Adm. Ex. 5).
In June 2007, Dr. Henry conducted an evaluation of Petitioner at the request of the ARDC. In addition to interviewing Petitioner, Dr. Henry reviewed numerous documents including Petitioner's disciplinary complaint, his petition for reinstatement, transcripts of his criminal and sentencing proceedings, correspondence from his probation officer, other written
evidence from the criminal proceeding, a psychiatric report from the Wisconsin probation department, and a letter from Petitioner's marriage counselor. (Tr. 574-81, 623-34). Dr. Henry also reviewed the e-mail chat between Petitioner and the purported 13 year old girl. (Tr. 579).
Petitioner told Dr. Henry that on February 9, 2000, he left his home to meet with a 13 year old girl in Milwaukee for the purposes of having sex. Petitioner explained the circumstances that lead him to arrange that meeting, including his father's stroke and death, his work-related stress, his wife's health issues, and his lack of communication with her. (Tr. 583-85, 655-60). Petitioner felt that these circumstances lead to his feelings of loss of control and to entering chat rooms where he could find someone he could control. (Tr. 586-88).
Dr. Henry diagnosed Petitioner as having a "sexual disorder not otherwise specified/rule out pedophilia." This diagnosis was based on Petitioner's attempt to create an inferior/superior relationship with a 13 year old girl. Petitioner also told Dr. Henry that he had a latent sexual attraction to underage girls. (Tr. 589-92). The portion of the diagnosis "rule out pedophilia" means that there is a possibility Petitioner suffers from pedophilia, and a future treater should be aware of that issue. (Tr. 592, 641-47). Dr. Henry concluded that Petitioner's actions demonstrated predatorial behavior because it was intended to take advantage of someone. (Tr. 592-93). He also opined that depression was one component of Petitioner's misconduct. (Tr. 605).
Dr. Henry is of the opinion that Petitioner does not currently suffer active symptoms of a major psychiatric illness, and has a minimal risk of repeating his criminal conduct. (Tr. 594-96; Adm. Ex. 6). He could never say Petitioner has no risk of repeating his behavior because the disorder will always be there, but the symptoms can be in remission. (Tr. 663, 674-77). After completing his therapy with Dr. Goldberg, and gaining other insights into his conduct, Petitioner
is well equipped to avoid a recurrence. (Tr. 660-64, 672). Dr. Henry recommended that Petitioner maintain a treatment relationship with Dr. Goldberg, with the frequency of that contact within Dr. Goldberg's discretion. Dr. Henry also recommended that that Petitioner always be chaperoned in the presence of underage children. He also should maintain a treatment relationship with a primary care physician. (Tr. 597-98, 668-69; Adm. Ex. 6).
Lawrence Templar is an attorney with the law firm of Jolivette & Templar. (Tr. 423). Mr. Templar has been a member and chairman of the Illinois Bar Association Professional Conduct Committee for 25 years. He is also a commissioner of the Illinois Supreme Court's Commission on Professionalism, and has served on the Illinois Supreme Court's Professional Responsibility Committee, and a committee for Ethics 2000. (Tr. 424-25).
Mr. Templar has known Petitioner since 1995, and they and their families are close friends. (Tr. 426-29). Mr. Templar is aware of the facts relating to Petitioner's conviction. (Tr. 429-32). Mr. Templar and Petitioner have remained in close contact since the arrest, and Mr. Templar sent a letter to the judge who sentenced Petitioner. (Tr. 432). Petitioner has taken responsibility for his actions, and Mr. Templar has a great amount of respect for how Petitioner has put his life back together after the conviction. (Tr. 432-33). Mr. Templar believes Petitioner has an excellent reputation for honesty, integrity and trustworthiness. (Tr. 436-37).
Scott Lazar is an attorney currently working for the law firm of Sidley and Austin. (Tr. 489-90). Prior to working for that firm, Mr. Lazar was the United States Attorney for the Northern District of Illinois from 1997 to 2001. (Tr. 490). He has known Petitioner for 25 years,
and they are members of the same synagogue. They are also members of a small group of congregation families that meet socially. (Tr. 491). Mr. Lazar is familiar with the facts surrounding Petitioner's conviction. (Tr. 493-94). While a U.S. Attorney, he testified at Petitioner's sentencing hearing. (Tr. 494). Mr. Lazar opined that Petitioner is "of the highest integrity." (Tr. 496-97).
Rabbi Dov Taylor
Rabbi Dov Taylor has been the rabbi of the Congregation Solel in Highland Park since 1984. (Tr. 471). He has known Petitioner, who is a member of the congregation, for 23 years. Petitioner serves as co-chair of the funeral committee, and has served on the board of directors and the executive committee. He and his wife are also social friends with Petitioner and his wife. (Tr. 472-74). On occasion, when Rabbi Taylor is unavailable to lead services, he will ask Petitioner to fill in for him. (Tr. 475). Petitioner has worked on the funeral committee for 15 years and it is a time-consuming and emotionally demanding position. (Tr. 475-80). Rabbi Taylor is familiar with the facts surrounding Petitioner's conviction. He opined that Petitioner has an excellent character. (Tr. 480-82).
Guy Brennan is a retail stockbroker who met Petitioner in 2001 when Petitioner started working at the Waukegan Bank. (Tr. 447-50). Petitioner purchases financial instruments from Mr. Brennan for the Bank's clients, and they talk on the telephone daily. (Tr. 451). Mr. Brennan is familiar with the facts surrounding Petitioner's conviction. (Tr. 453-55). He described Petitioner as knowledgeable and honest, and a person who is concerned for the best interests of his clients. (Tr. 456-60).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A petitioner seeking reinstatement to the practice of law has the burden of proving by clear and convincing evidence that he should be reinstated. In re Martinez-Fraticelli, 221 Ill. 2d 255, 270, 850 N.E.2d 155 (2006); In re Alexander, 128 Ill. 2d 524, 533, 539 N.E.2d 1260 (1989). Illinois Supreme Court Rule 767 sets forth the factors we are required to consider in determining whether the petitioner "has been rehabilitated, is presently of good character, and is currently knowledgeable as to the law." In re Parker, 149 Ill. 2d 222, 233, 595 N.E.2d 549 (1992). "The focus is on the petitioning attorney's rehabilitation and character [citations omitted] with rehabilitation being the most important consideration [citations omitted]. Rehabilitation is a matter of Petitioner's return to a beneficial, constructive and trustworthy role." Martinez-Fraticelli, 221 Ill. 2d at 270. These factors are as follows:
the nature of the misconduct for which the petitioner was disciplined;
the maturity and experience of the petitioner at the time the discipline was imposed;
whether the petitioner recognizes the nature and seriousness of the misconduct;
when applicable, whether the petitioner has made restitution;
the petitioner's conduct since the discipline was imposed; and
the petitioner's candor and forthrightness in presenting evidence in support of the petition.
Supreme Court Rule 767(f). We may also consider any other factors that we deem appropriate.
In the present case, after considering the petition for reinstatement, the evidence presented and the relevant case law, we find that Petitioner has proven that he should be reinstated, with certain conditions.
1. The Nature of Petitioner's Misconduct.
We find the nature of Petitioner's misconduct is extremely serious. On February 8, 2000, Petitioner engaged in an internet chat with a person who was purportedly a 13 year old girl. Petitioner had a sexually explicit conversation with her, and arranged to meet her the following day to engage in oral sex. When Petitioner had this conversation and arranged the meeting, he believed he was talking to a 13 year old girl. In reality, it was a Milwaukee police detective posing as a girl. On February 9, 2009, Petitioner drove from his home in Highland Park, Illinois, to the arranged location in Milwaukee, Wisconsin. He was arrested and convicted of child enticement, a felony.
Although the seriousness of Petitioner's crime cannot be understated, we find that it does not, by itself, preclude reinstatement. There have been other cases where an attorney has been reinstated after he was convicted of serious crimes. See In re Parker, 149 Ill 2d 222, 595 N.E.2d 549 (1992) (attorney reinstated after being convicted of conspiracy to distribute marijuana and other misconduct); In re Fleishman, 135 Ill. 2d 488, 553 N.E.2d 352 (1990) (attorney reinstated after being convicted of bribing a public official); In re Wood, 07 RT 3004, M.R. 21816 (Sept. 19, 2008) (attorney reinstated after being convicted of four counts of distributing cocaine); In re Alexander, 97 RT 3002, M.R. 13340 (March 23, 1999) (attorney reinstated after being convicted for mail fraud in connection with a conspiracy). After considering the serious nature of Petitioner's crime, we find that this factor does not preclude reinstatement.
Moreover, we view Petitioner's misconduct as a one-time mistake with minimal chance that he will repeat that misconduct. There is absolutely no evidence that Petitioner has done anything of this nature before or since his arrest. In fact, all of the evidence clearly establishes that, at most, he is at minimal risk to engage in similar conduct in the future. Dr. Goldberg,
Petitioner's treating psychiatrist, saw Petitioner between 175 and 200 times over the course of nearly three years, and has conducted recent follow-up interviews with him. Dr. Goldberg concluded that "it is close to impossible that he [Petitioner] would commit that kind of offense that he committed again." He stated that even if Petitioner becomes depressed in the future, he has developed constructive ways to deal with a recurrence of depression.
Dr Henry, the Administrator's expert witness, concluded that Petitioner does not currently suffer active symptoms of a major psychiatric illness, and has a "minimal risk" of repeating his criminal conduct. Dr. Henry could never say Petitioner has no risk, because Petitioner's disorder will always be there, but the symptoms can be in remission. Dr. Henry agreed that after completing therapy with Dr. Goldberg and gaining other insights into his conduct, Petitioner is well equipped to avoid a recurrence. Accordingly, although Petitioner's misconduct was very serious, he is, at most, at minimal risk of repeating that misconduct.
2. The Maturity and Experience of Petitioner at the Time Discipline was Imposed.
Petitioner was 53 years old and was licensed to practice law for 27 years when he was arrested for arranging to meet a 13 year old girl for sexual relations. Accordingly, Petitioner was of sufficient maturity and had adequate experience at the time of his misconduct. Moreover, understanding that it is wrong to engage is such actions is not the type of misconduct that requires maturity and experience. Rather, it is the type of misconduct that any reasonable person, let alone a licensed attorney, would know is wrong.
3. Petitioner's Recognition of the Nature and Seriousness of His Misconduct.
We find that Petitioner fully appreciates the seriousness of his misconduct. Petitioner acknowledged that he acted improperly when committed the crime. Petitioner has expressed remorse for, and at no time did he minimize the seriousness of, his misconduct. Instead, he
repeatedly expressed sorrow and regret for his actions. Additionally, Dr. Goldberg testified that Petitioner was remorseful and recognized the seriousness of his misconduct. We find his expressions of remorse genuine 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 a witness).
4. Restitution Made by Petitioner.
Petitioner was not required to pay restitution and none would be appropriate in this case.
5. Petitioner's Conduct Since Discipline was Imposed.
Petitioner's conduct since he was disbarred favors reinstatement. It is undisputed that Petitioner had effectively addressed the psychological issues that lead to his conviction. Immediately after being arrested, Petitioner obtained psychological treatment. He sought treatment from Dr. Goldberg, an accomplished and well-respected psychiatrist. Petitioner saw Dr. Goldberg twice per week from March 1, 2000, to December 30, 2002, for a total of 175 to 200 visits. Additionally, between mid-2001 and late 2002, Petitioner and his wife saw a marriage counselor. Also, from March 2001 to December 2002, he received sex offender treatment, as required in the criminal sentence.
As a result of these therapies, Petitioner has effectively treated the causes of his misconduct, and restored the relationships in his life. Dr. Goldberg concluded that when Petitioner engaged in the misconduct, he was suffering from reactive clinical depression caused by an extended period of family and work related problems. Petitioner's criminal conduct was a result of that depression. After treating Petitioner, Dr. Goldberg concluded that Petitioner no longer suffered from depression and had an excellent prognosis. He also found that Petitioner currently has constructive ways to deal with life's problems and subsequent depression episodes are unlikely.
Even the Administrator's expert, Dr. Henry, concluded that Petitioner does not currently suffer active symptoms of major psychiatric illness and is a minimal risk of repeating his criminal conduct. Dr. Henry also testified that after completing therapy with Dr. Goldberg and gaining other insights into his conduct, Petitioner is well equipped to avoid a recurrence.
We were also impressed with Mrs. Tatar's testimony. She has observed substantial changes in Petitioner since his conviction. He worked diligently with Dr. Goldberg and their marriage counselor to addresses the problems that lead to his conviction. His relationship with her and their children has dramatically improved.
Petitioner has been a productive member of society since his disbarment. He has been gainfully employed at the Bank of Waukegan since January 2001, in a position of significant responsibility. He oversees the management of trust, estate and retirement accounts and the bank's investments. He also is responsible for the bank's business development and coordinates outside audits. One of his business associates, Mr. Brennan, convincingly testified that Petitioner is knowledgeable and concerned with the best interests of the Bank's clients.
Additionally, Petitioner is active in his synagogue. He is on the funeral committee, which assists members of the congregation plan and organize funerals. It requires a substantial time and emotional commitment. Petitioner has also served on the synagogue's board of directors and executive committee. Further, Petitioner oftentimes leads the services when Rabbi Taylor is unavailable. Petitioner also makes charitable contributions. Specifically, he donates tickets to White Sox games to various organizations, and started and maintains a scholarship fund at Highland Park High School to send students to music summer camp and pay for music lessons.
The Administrator argues that some of Petitioner's activities should not be viewed favorably, because he engaged in the same activities before and after his conviction. We reject this argument, and will not penalize Petitioner for continuing to do the same good deeds after he engaged in misconduct as he did before the misconduct. Petitioner could have stopped participating in those activities after his conviction, but he continued to do them.
Moreover, we are convinced that Petitioner is currently knowledgeable of the law. Petitioner has taken seminars offered by the Illinois Institute for Continuing Legal Education, the Lake County Bar Association, and the Lake County Estate Planning Counsel. He has also attended a two day wealth management course at Notre Dame University. He reads numerous publications related to wealth management, trust law and estate planning. He is a member of the Illinois Bar Association, and receives publication from that organization.
The Administrator argues that Petitioner's conduct since disbarment is diminished by the fact that he was dishonest about his conviction with his current employer. The undisputed facts establish that Petitioner did not fully disclose his crime to Bank of Waukegan. In January 2001, when completing the job application, he failed to answer the question regarding whether he had been convicted of a felony. He generally told bank officials that he was convicted of a crime, but did not explain any further. In February 2001, after he was given the job, he learned that the Bank needed the consent of state bank regulators when employing a convicted felon. He drafted a memo explaining the conviction, but made inaccurate statements in the memo. In March 2001, Petitioner drafted a second memo and again made several inaccurate statements. Petitioner admitted he made the misrepresentations in an effort to keep his job.
We do not condone Petitioner's lack of candor in the memos, and view them as a serious lapse of judgment. However, the seriousness of Petitioner's conduct is mitigated by the fact that
after thoroughly investigating Petitioner criminal conviction, not only did the state bank regulators also approve of Petitioner's continued employment, but the Bank continued to employ Petitioner. He should have been more candid about his conviction; however, when this fact is considered with all the other facts, it is insufficient to deny reinstatement.
6. Petitioner's Candor and Forthrightness in Presenting Evidence in Support of His Petition.
We find that Petitioner was candid and forthright in presenting evidence in support of his petition. See Smith, 168 Ill. 2d at 283. Additionally, we give substantial weight to the character testimony presented by the Petitioner. He presented four witnesses who consistently testified that Petitioner has an excellent character or reputation for honesty and integrity. Three of the witnesses have known Petitioner for numerous years and have close relationships with him. Rabbi Taylor has known Petitioner for 23 years, has worked with him closely and has observed him perform responsible duties at the synagogue. Lawrence Templar is a well-respected and accomplished member of the legal community. He has known Petitioner for 14 years, and his opinion of Petitioner's character is compelling. Scott Lazar was the U.S. Attorney for the Northern District of Illinois from 1997 to 2001, and currently practices law with a prestigious Chicago law firm. He has known Petitioner for 25 years through their synagogue. We are impressed by the fact that while a U.S. Attorney, he testified at Petitioner's sentencing hearing. Mr. Lazar's continued support of Petitioner, and his opinion regarding Petitioner's character has made a significant impression upon us.
7. Other Factors.
The Court has repeatedly stated that when evaluating a petition for reinstatement, it must consider the impact the attorney's conduct has, or will have, on the legal profession, the public and the administration of justice. See Martinez-Fraticelli, 221 Ill. 2d at 271, quoting In re Kuta,
86 Ill. 2d 154, 157, 427 N.E.2d 136 (1986). Here, we believe Petitioner does not pose a risk to repeat his misconduct and further affect the legal profession. However, we are concerned with the fact that he must register as a sex offender until the year 2010. We cannot, in good conscience, recommend his reinstatement while this requirement remains in effect. Accordingly, we recommend that Petitioner be reinstated, but only after he is no longer required to register as a sex offender. We also recommend that prior to Petitioner being reinstated, he must successfully complete the ethics course conducted by the Illinois Professional Responsibility Institute.
Based on the evidence and our findings, we conclude the Petitioner has met his burden of proving by clear and convincing evidence that he is rehabilitated, is of good character and is currently knowledgeable in the law. Accordingly, we recommend that his petition for reinstatement to the practice of law be granted, with the conditions that the reinstatement take effect only after Petitioner is no longer required to register as a sex offender and after he completes the ethics course conducted by the Illinois Professional Responsibility Institute.
Date Entered: June 23, 2009
|John A. Guzzardo, Chair, Wendell D. Hayes, and Joseph J Calvanico, Hearing Panel Members.|