Filed June 17, 2009

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

In the Matter of:

MARK ROBERT MCGOVERN,

Attorney-Respondent,

No. 6276279.

Commission No. 07 CH 52

REPORT AND RECOMMENDATION OF THE HEARING BOARD

The hearing in this matter was held on December 8, 2008, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Hearing Board Panel consisting of James B. Pritikin, Chair, Leonard J. Schrager, and Audrey Hauser. Peter L. Apostol and Wendy J. Muchman appeared on behalf of the Administrator of the ARDC. Respondent appeared pro se.

PLEADINGS AND PRE-HEARING PROCEEDINGS

On June 6, 2007, the Administrator filed a two-count Complaint pursuant to Supreme Court Rule 761(d) alleging that Respondent committed a criminal act when he assaulted a flight attendant, and violated the terms of his supervised release. Respondent filed an Answer to the Complaint admitting some of the factual allegations, denying some of the factual allegations, and denying most of the allegations of misconduct.

THE EVIDENCE

The Administrator presented the testimony of three witnesses, including Respondent, and offered exhibits 1-11 which were admitted into evidence. Administrator's Exhibits 7, 8, 9, and 11 consist of medical records and evaluations and were admitted under seal. Respondent testified on his own behalf, and presented no other evidence.

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Count I

Admitted Facts

On November 25, 2005, Respondent was on United Airlines flight number 1502 from Orlando, Florida to Washington D.C. At some point during the flight, Respondent engaged in disruptive behavior. He was arrested by federal air marshals, and the flight was diverted to Charlotte, North Carolina. On December 13, 2005, a one-count indictment was filed against Respondent in the federal district court of North Carolina, charging Respondent with assaulting and intimidating a flight attendant in violation of 49 U.S.C. sec. 46504. On January 26, 2006, Respondent plead guilty to assaulting and intimidating a flight attendant. On May 22, 2006, he was sentenced to seven months incarceration, followed by three years of supervised release. He was also ordered to pay $7,339 in restitution to United Airlines and a $100 assessment.

Testimony of David H. Miller

On November 25, 2005, David H. Miller was the pilot and captain of United Airlines Flight 1502 which departed Orlando, Florida bound for Washington D.C. (Tr. 20-21) Miller has been a commercial pilot for 20 years, and worked for United Airlines for 14 years. (Tr. 19-20). The flight also had two federal air marshals on board, along with approximately 120 passengers. (Tr. 21).

Approximately 20 minutes into the flight, Miller was informed by the head flight attendant that Respondent was smoking a cigarette. Miller instructed the flight attendant to make sure Respondent was no longer smoking, and directed the marshals to monitor Respondent' s behavior. (Tr. 22). Miller was later informed by the flight attendant that Respondent requested a beer, the flight attendant refused to give him one, and he was becoming agitated. (Tr. 23). Miller later learned from the marshal that Respondent continued to be belligerent, including

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yelling and using obscenities and the marshal recommended that the plane be diverted to another airport to remove Respondent from the plane. (Tr. 24, 30). In a second conversation with the marshal, Miller learned that Respondent was attempting to urinate in the aisle of the plane. Miller and the marshal decided to restrain Respondent. (Tr. 26).

A plane can be diverted when the pilot fears for the safety of the passengers or crew based on the behavior of another passenger. The decision for diverting a plane rests with the captain. (Tr. 25-26). Based on the information he had received, Miller decided to divert the plane to the closest airport, which was Charlotte, North Carolina. He based the decision on the unpredictability of Respondent's actions and concern for the safety of the crew and passengers. This was first time he diverted a plane in his career. (Tr. 25-30). After landing, local police took Respondent into custody. (Tr. 27-28).

Federal Air Marshal's Report

On November 25, 2005, one of the federal air marshals who was on Flight 1502 filed an activity report detailing the events that occurred on the plane. (The marshal's name was redacted from the report.) After the plane took off, the marshal smelled smoke, and discovered that Respondent was smoking a cigarette. He removed the cigarette from Respondent, and gave it to the flight attendant. After the flight attendant asked Respondent if he had a lighter or matches, Respondent threw a book of matches at her. Respondent became agitated and began swearing at the flight crew. His voice was loud enough for other passengers to hear him and to cause concern to the flight crew and passengers. Shortly thereafter, the flight attendant refused Respondent's request for a beer, and he became "enraged and belligerent" and threw pretzels at the flight attendant, hitting some passengers. Respondent then began to urinate on the side of the

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plane from his seat. The flight attendant moved the passengers sitting in the row behind Respondent, and the marshal informed the captain of the situation. (Adm. Ex. 3 at 2).

The marshal observed Respondent make and "aggressive movement" toward the flight attendant, and determined that the security of the passengers and flight crew were in jeopardy. The marshal restrained Respondent in his seat by applying Respondent's seat belt and handcuffing him. The marshal observed that Respondent was becoming more hostile, and informed the captain. The captain decided to divert the plane to the closest airport. The marshal read Respondent the Miranda warnings and searched him. Respondent became verbally abusive and began swearing at the marshal and calling him names. Respondent also started spitting on the passenger seated in front of him. The marshal leaned Respondent forward in his seat to prevent him from spitting on other passengers. When the plane landed, Respondent was turned over to the custody of the airport police. (Adm. Ex. 3 at 3).

Count II

Admitted Facts

On June 26, 2006, Respondent was released from prison and assigned to the McLeod Center, a federal halfway house, for 18 months. Respondent participated in the work-release program, and was required to return to the halfway house every night after work. On November 11, 2006, Respondent failed to return after work, and failed to advise his probation officer of his whereabouts. During this absence, Respondent used cocaine. On November 12, 2006, Respondent returned to the halfway house, and admitted he used cocaine. On November 14, 2006, Respondent's probation officer filed a petition with the court alleging that Respondent violated his supervised release. On December 8, 2006, the court revoked Respondent's supervised release and sentenced him to an additional 11 months in prison.

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Testimony of Dr. Stafford Henry

Dr Stafford Henry is a physician who is board certified in general psychiatry, forensic psychiatry, and addiction psychiatry. Forensic psychiatry involves the interplay between psychiatry and the law, and includes fitness for duty evaluations, and child custody issues. (Tr. 31-32, 35; Adm. Ex. 10). Dr. Henry has a private practice, specializing in the treatment and assessment of professionals such as doctors, lawyers, pilots, air traffic controllers and engineers. (Tr. 34-35). He has performed several thousand psychiatric and substance abuse evaluations, and has testified before different tribunals about those evaluations on several hundred occasions. (Tr. 35-37). He has been certified as an expert when he testified. (Tr. 38-39). Dr. Henry has also treated ten to 15 professionals for psychiatric and substance abuse issues. (Tr. 38). He was qualified as an expert in this disciplinary matter. (Tr. 39).

Dr. Henry conducted a psychiatric evaluation of Respondent at the request of the ARDC. (Tr. 40; Adm. Ex. 11). In preparation for the evaluation, Dr. Henry reviewed all available medical records and legal documents pertaining to Respondent. (Tr. 40-41; Adm. Exs. 7, 8, 9). Dr. Henry was familiar with the facts relating to Respondent's arrest and the incident occurring on the airplane. (Tr. 41-43). He interviewed Respondent on two occasions, for a total of five hours and 45 minutes. (Tr. 45-46).

Respondent told Dr. Henry about the incident that occurred on Flight 1502, and his subsequent arrest, conviction and incarceration. (Tr. 47-49; Adm. Ex. 1). Respondent also told Dr. Henry that he violated the terms of the release by using cocaine and missing his curfew and was again incarcerated until October 2007. (Tr. 49-50; Adm. Ex. 2).

Based on this evaluation, Dr. Henry diagnosed Respondent as having alcohol and cannabis dependence; benzodiazepine and cocaine abuse; depressive disorder; and pathological

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gambling. He also stated that Respondent has a probable personality disorder, and a personality disorder not otherwise specified with antisocial features. (Tr. 51-52). Dr. Henry opined that alcohol has "profoundly" affected Respondent's life. He also articulated Respondent's personal history of alcohol use and his family history of alcoholism. He abstained from alcohol between 1987 and 1996. (Tr. 57). Respondent had a 14 month period of abstinence while in law school, but again relapsed in January 2002. He also had some periods of abstinence in 2005. (Tr. 57-59). Respondent entered a treatment program in February 2008, and has been abstinent since that time. (Tr. 59-60).

Dr. Henry concluded that alcohol was causally related to Respondent's actions on Flight 1502, and Respondent admitted he was under the influence of alcohol at the time. (Tr. 60). Dr. Henry also observed that Respondent has a history of violating the law and being arrested while under the influence of alcohol. (Tr. 53-57, 61). Respondent was currently taking Antabuse, which causes adverse reactions if alcohol is consumed. (Tr. 62-63).

Dr. Henry concluded that Respondent's current treatment for his alcoholism was inadequate to ensure his recovery. (Tr. 63-64). He based this conclusion on the facts that although Respondent has been abstinent since February 2008, he used cannabis until June 2008. (Tr. 64). Additionally, according to Dr. Henry, Respondent is "an exceedingly troubled and tormented individual who has self-medicated with substances. Even if he is abstinent, the multitude of psychiatric systems he has are still present and untreated." (Tr. 64-65). Respondent's prognosis, without treatment, was poor, but with treatment he "could be restored to a much higher level of occupational and social functioning." (Tr. 66).

Respondent has also used cannabis at various periods of his life, with the most recent incidents of use occurring in May and June 2008. (Tr. 67). In May 2008, after using cannabis,

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Respondent became ill, began to hallucinate, called paramedics, and was taken to the hospital. At the hospital, Respondent continued to hallucinate, and after being restrained by the paramedics, was criminally charged with battery. (Tr. 67-68). Respondent's cannabis use, along with alcohol use, cause Respondent to be inclined to engage in disinhibited and violent behavior. (Tr. 68-69).

Additionally, Dr. Henry concluded that based on Respondent's biochemical makeup, psychiatric and social history, and personality disorders, he is prone to be depressed. The use of cannabis and alcohol are likely to exacerbate depression. (Tr. 69-71). Dr. Henry explained that Respondent's borderline personality disorder is characterized by impulsivity and deceitfulness, chronic feelings of depression and emptiness, confusion about sexual identity, and vacillating moods. (Tr. 71-72). He also stated that Respondent's personality disorder not otherwise specified with antisocial features is characterized by a repeated pattern of behavior that shows a disregard for laws and is often grounds for criminal involvement. (Tr. 73).

Dr. Henry concluded that there is a causal connection between Respondent's psychiatric conditions and the misconduct alleged in Count II of the disciplinary complaint. (Tr. 74). He also opined that based on Respondent's past conduct, he is at risk to violate the rules of professional conduct in the future. (Tr. 75). Dr. Henry also stated that for Respondent to be an appropriate candidate to consistently adhere to his ethical obligations, he would need to follow Dr. Henry's treatment recommendations, and be re-evaluated after those recommendations were completed. (Tr. 76-77). Dr. Henry believed that without treatment, Respondent will struggle with abstinence and sobriety. (Tr. 77). He also stated that under Respondent's current treatment, he is at a significant risk of relapse. (Tr. 77-78). Dr. Henry's had a "guarded opinion" about

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Respondent's recovery. The fact that Respondent abstained from alcohol and cannabis for nine years shows that Respondent has the capacity to do so again. (Tr. 83-85).

Respondent's Medical Records

Although the exhibits containing Respondent's medical records have been sealed, without disclosing the contents, they reveal that Respondent had continually received treatment from February 6, 2008, through September 5, 2008. (Adm. Exs. 7, 8, 9).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). "Clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence." Cleary and Graham, Handbook of Illinois Evidence, sec. 301.6 (6th ed. 1994). This standard of proof is one in which the risk of error is not equally allocated; rather, this standard requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66, 102 S. Ct. 1388 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. Dec. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).

In this case, based on the evidence and testimony presented at the hearing, we find that the Administrator proved by clear and convincing evidence that Respondent all of the misconduct alleged in the Complaint.

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Count I

We find that the Administrator proved that Respondent engaged in the following misconduct alleged in Count I of the Complaint: 1) committing criminal acts that reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 2) engaging in conduct that is prejudicial to the administration of justice; 3) engaging in conduct which tends to defeat the administration of justice or brings the courts or the legal profession into disrepute in violation of Rules 8.4(a)(3) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

It is undisputed that Respondent was convicted of assaulting and intimidating a flight attendant. The incident arose on November 25, 2005, after Respondent engaged in several disruptive acts while on Flight 1502. Respondent admitted that he was drunk when he boarded the plane. While on the plane, Respondent began smoking a cigarette. After the flight attendant refused to serve Respondent a beer, he became agitated and belligerent, and swore at the flight attendant and threw pretzels at her. He then urinated on the side of the plane. After the flight attendant moved the passengers sitting behind Respondent, Respondent made an aggressive movement toward her.

The marshal determined that the security of the passengers and flight crew were in jeopardy, and physically restrained Respondent in his seat by applying Respondent's seat belt and handcuffing him. Respondent become more hostile and swore at the marshal and called him names. Respondent also started spitting on the passenger seated in front of him, and the marshal leaned Respondent forward in his seat to stop him from doing so. Based on Respondent's conduct the captain diverted the plane to the closest airport, and Respondent was arrested and removed from the plane.

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On January 26, 2006, Respondent plead guilty to assaulting and intimidating a flight attendant, and was sentenced to seven months incarceration, followed by three years of supervised release. Respondent's conduct was not only criminal, but it jeopardized the safety of the passengers and crew. It was vulgar and offensive, and particularly troublesome given the proximity of the passengers in a contained environment.

Count II

We find that the Administrator proved that Respondent engaged in the following misconduct alleged in Count II of the Complaint: 1) committing criminal acts that reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 2) engaging in conduct that is prejudicial to the administration of justice; 3) engaging in conduct which tends to defeat the administration of justice or brings the courts or the legal profession into disrepute in violation of Rules 8.4(a)(3) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

On June 26, 2006, after serving the initial seven months of incarceration, Respondent was assigned to a federal halfway house for 18 months. He participated in a work-release program which required him to return to the halfway house every night after work. On November 11, 2006, Respondent failed to return to the halfway house, and while absent, used cocaine. The next day, he returned to the halfway house and admitted using cocaine. On December 8, 2006, the court revoked his supervised release and sentenced him to an additional 11 months in prison. Respondent's conduct not only demonstrated his disregard for the law, by using an illegal drug, but also his disregard for the court, by violating court orders.

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RECOMMENDATION

The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). "The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system." In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). In determining the appropriate sanction for an attorney's misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986). Also, "it is important to recognize the deterrent value of a sanction and the need to impress upon others the seriousness of the misconduct at issue." Twohey, 191 Ill. 2d at 85.

The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during that attorney's disciplinary proceedings. See Gorecki, 208 Ill. 2d at 360-61. In the present case there are several mitigating and aggravating factors.

Respondent's has received no prior discipline. Generally, the lack of a prior discipline is a mitigating factor. See In re Lewis, 138 Ill. 2d 310, 562 N.E.2d 198 (1990). However, in the present case, Respondent had been licensed to practice law for only three years when he engaged in the misconduct on Flight 1502. Based on this short period of time, we give this mitigating factor little weight.

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Respondent's misconduct is mitigated by the fact that it did not harm any clients. The lack of harm to clients is a mitigating factor. See In re Dombrowski, 97 CH 32, M.R. 15114 (September 28, 1998) citing In re Bizar, 97 Ill. 2d 127,132, 454 N.E.2d 271 (1983). In the present case, Respondent's misconduct is wholly unrelated to the practice of law and had no affect on any clients. While this does not lessen the severity of the misconduct, it is a mitigating factor we must consider.

Respondent's misconduct is also mitigated by the fact that he acknowledged his misconduct and is remorseful. See In re Merriwether, 138 Ill. 2d 191, 561 N.E.2d 662 (1990). We were impressed with Respondent's statements, along with his demeanor, which established that he acknowledged his problems and felt genuine remorse for his misconduct. Respondent stated that he is ashamed of his conduct on Flight 1502 and will regret it for the rest of his life. He also recognized that he is an alcoholic. He is currently sober and receiving treatment. He convincingly believes that with continued treatment he can became a responsible member of society and the bar. His remorse and understanding of his misconduct and its causes, suggests that he is earnest and likely to address the causes of the misconduct.

Respondent's misconduct is aggravated by the fact that since his conviction, he has had other run-ins with the law. Respondent admitted using cannabis on several occasions, most recently in June 2008. Additionally, after using cannabis in May 2008, Respondent had an adverse reaction and was taken to the hospital in an ambulance. He had to be restrained by the paramedics and was subsequently charged with battery. These facts suggest that Respondent has not fully committed to his treatment and recovery, and consequently will have difficulty complying with the law in the future.

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Having considered the mitigating and aggravating factors, we must now recommend the appropriate sanction. The Administrator recommends Respondent be suspended from the practice of law two years and until further order of the court, and bases this recommendation on several cases. See In re Autry, 06 CH 15, M.R. 21051 (September 21, 2006) (18 month suspension until further order of the court); In re Knaff, 05 CH 13, M.R. 20331 (September 27, 2005) (18 month suspension until further order of the court); In re Smith, 97 SH 116, M.R.

17048 (November 27, 2000) (three year suspension until further order of the court). Respondent has no objection to a two year suspension, but strongly objects to the suspension remaining in effect until further order of the court.

After reviewing the cases cited by the Administrator, and other relevant cases, we believe that a sanction more tailored to the facts of this case would be more appropriate. First, we find the cases cited by the Administrator, while instructive regarding the length of the suspension, are distinguishable from the present case regarding imposing a suspension until further order of the court. Both Autry and Knaff were disciplined based on petitions to impose discipline on consent, and accordingly, agreed to the until further order of the court provision. In the present case, Respondent does not agree to that provision. In Smith, in addition to his criminal conduct, a DUI and possession of cocaine, Smith converted escrow funds, and failed to cooperate with the Administrator. The additional client related misconduct and Smith's failure to cooperate warranted the until further order of the court provision. Those facts are not present here.

We recommend that Respondent be suspended from the practice of law for five years and until further order of the court, with the last two years of the suspension and the until further order of the court provision stayed if Respondent complies with certain terms of probation. The length of the suspension is sufficient to protect the public by allowing Respondent to address the

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causes of his misconduct. As Dr. Henry testified, Respondent's misconduct was causally related to his use of alcohol and psychiatric conditions. Our recommended sanction gives Respondent sufficient time to address the causes of his misconduct. This type of sanction has been imposed by the Illinois Supreme Court in a similar case. See In re Kunz, 122 Ill. 2d. 547, 524 N.E.2d 544 (1988); See also In re Feldman, 96 CH 427, M.R. 15208 (November 24, 1998); In re Bowden, 07 CH 72 (Hearing Board Report, November 21, 2008) (pending before the Review Board).

In Kunz, the Supreme Court imposed a suspension that was stayed in its entirety by probation. The attorney was convicted of driving while his driver's license was suspended, and two separate instances of driving under the influence of alcohol. He was sentenced to a total of 60 days in jail. Instead of reporting to jail to serve his sentence, Kunz got drunk and boarded a bus to Los Angeles. A warrant was issued for his arrest. Several days later, Kunz called the Illinois authorities and made arrangements to return to serve his sentence. Kunz, 122 Ill. 2d at 551.

After being released from jail, a disciplinary complaint was filed against him. At the disciplinary hearing, Kunz admitted that he continued to consume alcohol, and opined that he did not need professional care. Before the Review Board, Kunz admitted, for the first time, that he was an alcoholic. He also claimed that he had abstained from alcohol for nine months, and enrolled in an alcohol rehabilitation program. Id. at 550-51.

The Court suspended Kunz for two years and until further order of the court, with the suspension stayed in its entirety with conditional probation. The Court reasoned that "[p]robation, when combined with a stay of suspension, provides the alcoholic attorney with an incentive to complete his rehabilitation." Id. at 553. The Court imposed probation even though Kunz had "been slow to recognize his alcoholism and that he has in the past used insincere

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promises to rehabilitation in order to secure favorable treatment." Id. The Court further noted that there was nothing in the record to suggest that his alcoholism had affected his ability to serve his clients. The Court reasoned that the "danger posed to the community by his alcoholism has thus far been unrelated to the respondent's status as an attorney. Probation is therefore unlikely to create any greater danger for the community than suspension." Id.

The Court saw little risk in allowing probation, and rejected the Administrator's concern that Kunz's statements about his alcoholism were insincere. The Court stated, "if the respondent is in fact insincere, the Administrator remains free to seek revocation of the stay, which is in any case conditional upon: the respondent's presentation of proof that he has in fact entered into a continuing program of treatment for alcoholism; the respondent's abstention from alcohol; and compliance with any reasonable conditions the Administrator may impose in order to supervise the respondent's probation." Id. at 553.

We find the Kunz decision instructive for our determination in the present case. In both cases, the attorney was convicted of criminal offenses and violated a subsequent sentencing order. As in Kunz, Respondent acknowledged he is an alcoholic, had been abstinent for a significant period of time, explained he is receiving treatment, and believed that he can practice law if he remains in treatment. At the time of the hearing, Respondent was maintaining a period of sobriety, attending AA meetings, taking prescribed medications, and regularly seeing a psychiatrist and therapist though the Veteran's Administration. Respondent expressed a willingness to continue treatment. Also, in both cases, the underlying misconduct did not affect the attorneys' clients. For the same reasons as the Court relied upon in Kunz, we believe Respondent's acknowledgement of his problems and earnest efforts to treat them, establish that he is a viable candidate for a stay of a portion of his suspension with probationary conditions.

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We see no reason to simply require the suspension to remain in effect until further order of the court. Our recommendation gives Respondent the opportunity to address his problems, complete the necessary treatment, and prove that he is capable of returning to the practice of law. This sanction also protects the public as much as the sanction recommended by the Administrator. Respondent would still be suspended for three years. If he complies with the probationary terms, he will have demonstrated a substantial period of sobriety as well as the benefits of extended treatment. If he fails to comply with the terms of probation, he will have to serve a longer suspension that will remain in effect until further order of the court. This sanction essentially gives Respondent the opportunity to do what is necessary to become a reliable and productive member of society and the bar. If he squanders that opportunity, he will have a longer suspension and be required prove that he should be reinstated. To simply suspend Respondent until further order of the court gives him little incentive to continue the treatment he needs and provides no further protection to the public. Our recommended sanction accomplishes the goals of our disciplinary system and is closely tailored to the treatment recommended by Dr. Henry.

Accordingly, we recommend that Respondent be suspended from the practice of law for five years and until further order of the court, with the last two years and the until further order of the court provision stayed by a period of probation subject to the following conditions to commence upon the effective date of the Court's order and continue until the end of the probationary period:

  1. Respondent shall comply with the provisions of Article VII of the Illinois Supreme Court Rules on Admission and Discipline of Attorneys and the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigations relating to his conduct;

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  1. Respondent shall reimburse the Commission for the costs of this proceeding as defined in Supreme Court Rule 773 and shall reimburse the Commission for any further costs incurred during the period of probation;

  2. Probation shall be revoked if Respondent is found to have violated any of the terms of probation. The remaining period of suspension shall commence from the date of the determination that any term of probation has been violated and shall continue until further order of the Court;

  3. Respondent shall notify the Administrator within seven days of any arrest or charge alleging his violation of any criminal statute or ordinance;

  4. Respondent shall attend meetings as scheduled by the Commission probation officer. Respondent shall submit quarterly written reports to the Commission probation officer concerning the status of his practice of law and the nature and extent of his compliance with the conditions of probation;

  5. Respondent shall notify the Administrator within fourteen days of any change of address;

  6. Respondent shall abstain from the usage of alcohol, cannabis and any unprescribed controlled substances;

  7. Respondent shall refrain from gambling;

  8. Within three months of the start of his suspension, Respondent shall attend a long-term residential program for the chemically dependent such as the program offered at the Extended Aftercare facility in Houston, Texas. If Respondent is unable to attend this facility, he shall attend a similar program of long-term residential treatment that is agreeable to the Administrator;

  9. Respondent shall undergo a fitness for duty evaluation by a professional selected by the Administrator, and the results must show that Respondent is fit to practice law. The evaluation and written report must be completed and supplied to the Administrator prior to the end of the three year suspension period;

  10. Upon completion of the residential program and 18 months of continuous verifiable abstinence, Respondent shall engage in a course of individual psychotherapy with a therapist who has experience in addiction and adult survivors of sexual abuse issues, and experience working with high functioning characterlogic individuals. Respondent shall continue therapy with a psychiatrist throughout the term of probation on a regular basis as deemed necessary by such professional, and advise the Administrator of any change in attendance deemed warranted by such professional;

  11. Respondent shall comply with all treatment recommendations of the psychiatrist or such other qualified mental health professional, including taking prescribed medications;

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  1. Respondent shall provide to the qualified mental health professional, an appropriate release authorizing the treating professional to: (1) disclose to the Administrator on at least a quarterly basis information pertaining to the nature of Respondent's compliance with any treatment plan established with respect to Respondent's condition; (2) promptly report to the Administrator Respondent's failure to comply with any part of an established treatment plan; and (3) respond to any inquiries by the Administrator regarding Respondent's mental or emotional state or compliance with any established treatment plans;

  2. Respondent shall notify the Administrator within fourteen days of any change in treatment professionals;

  3. Respondent shall, as required by the Administrator, submit to random substance testing by a qualified mental health professional or facility approved by the Administrator, within eight hours of receiving notice by the Administrator that he shall submit to the testing. The results of the tests shall be reported to the Administrator. Respondent shall pay any and all costs of such testing;

  4. Immediately after completing the residential treatment program, Respondent shall participate in the 12-step programs Alcoholics Anonymous and Gamblers Anonymous by attending at least 90 meetings in 90 days and at least three meetings per week for each program through the end of the probationary period. Respondent is to maintain a log of his attendance at the meetings and submit it to the Administrator with his quarterly reports. Respondent shall also participate in the Lawyer Assistance Program, including, if deemed appropriate, having a mentor;

  5. Respondent shall maintain a sponsor in the 12-step programs and shall provide the names, addresses and telephone numbers of the sponsors to the Administrator within fourteen days of being placed on probation. Respondent shall request that the sponsor communicate with the Administrator in writing on a quarterly basis regarding Respondent's participation and progress in the 12-step program and report any lapses in sobriety, usage of unprescribed controlled substances, or gambling to the Administrator within 72 hours of his knowledge of that usage;

  6. Respondent shall report to the Administrator any lapse in his sobriety, gambling or usage of any unprescribed controlled substances within 72 hours of that usage.

Date Entered: June 17, 2009

James B. Pritikin, Chair, Leonard J. Schrager, and Audrey Hauser, Hearing Panel Members.