Filed December 3, 2008
In re Bruce Roth
Commission No. 07 RT 3002
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: The Petitioner's motion to strike his name from the Roll of Attorneys was granted after he was convicted in federal court of four counts related to bribing judges and soliciting money to bribe judges in connection with Operation Greylord. He filed a petition for reinstatement acknowledging his misconduct and stating that he is currently fit to resume the practice of law.
RULES DISCUSSED: Supreme Court Rule 767.
RECOMMENDATION: Petition for reinstatement denied.
DATE OF OPINION: December 3, 2008.
HEARING PANEL: Arthur B. Smith, Chair, Jr., Michelle M. Montgomery, and Katheryn H. Ward.
PETITIONER'S COUNSEL: Michael H. Saken.
ADMINISTRATOR'S COUNSEL: Marcia T. Wolf and Wendy J. Muchman.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
Supreme Court No. M.R. 21650
Commission No. 07 RT 3002
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing was held on April 28 and 29, and July 25, 2008, at the Chicago, Illinois offices of the Attorney Registration and Disciplinary Commission ("ARDC") before the Panel of Arthur B. Smith, Jr., Chair, Michelle M. Montgomery, and Katheryn H. Ward. Marcia T. Wolf and Wendy J. Muchman represented the Administrator of the ARDC. The Petitioner appeared and was represented by Michael H. Saken.
Petitioner was licensed to practice law in the State of Illinois in 1971. On December 1, 1987, 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 federal court of four counts of bribing judges and soliciting money to bribe judges in connection with Operation Greylord. He was sentenced to ten years in prison, and served six years.
This matter came before the Hearing Board on Petitioner's petition for reinstatement that was filed on May 7, 2007, pursuant to Supreme Court Rule 767. In his petition, Petitioner
acknowledged some, but not all, of 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 nine witnesses. Petitioner tendered exhibits 1-6, and A-D which were admitted into evidence. The Administrator presented the testimony of seven witnesses, and tendered exhibits 1-31 which were admitted into evidence (exhibits 12 and 21-29 were admitted under seal).
Petitioner is 63 years old. He is married, but for financial reasons, he lives with his mother, and not his wife. (Tr. 148-49). Petitioner's wife is 62 years old and has had multiple sclerosis since she was 35 years old. Petitioner has not been gainfully employed since 2002. (Tr. 149). In 1995, he began working for his brother-in-law's investment firm, and continued to work there until 2002, when he was laid off. (Tr. 149, 189). During two of the years he worked for the investment firm, he earned more than $100,000. (Tr. 580). He also participated in the firm's 401(k) plan, and in 2003 and 2004 he received $83,000 in disbursements from the plan. (Tr. 581). In 1993, he sold his house and received $162,000 from the proceeds, and used $94,000 for a down payment on a different house. (Tr. 581). When Petitioner sold that house, he received $138,000 from the sale. (Tr. 582). Subsequently, he became a personal trainer, and other than a brief job with the Downer's Grove Park District, he was unable to find full-time employment in that field. (Tr. 150-51, 189-90; Pet. Ex. 3). Petitioner's only source of income is Social Security benefits. (Tr. 151).
Petitioner was licensed to practice law in 1971, and worked for the Cook County State's Attorney's Office until 1976, when he entered private practice. (Tr. 154-55, 195-96). In 1984, he was acquitted of perjury and subornation of perjury charges in state court. In 1987, he was indicted in federal court on four counts of bribing judges and soliciting money to bribe judges, for a total of nine acts of racketeering. After a jury trial, he was convicted of all counts, but denied that he committed all of the crimes. (Tr. 155, 197; Adm. Exs. 1, 2).
The first matter alleged that Petitioner gave Judge Olson $300 in a criminal case involving defendants Leach and Dancy. Petitioner admitted that he committed this crime. (Tr. 155; 199). In that case, Petitioner was in Judge Olson's courtroom when the judge gave him two files and told him to approach the defendants and tell them the judge asked him to talk to them. After talking to the defendants, Petitioner met with the assistant state's attorney and the charges were dropped. Petitioner's fee for the case was $765, the amount of the defendants had posted as bond. Petitioner gave Judge Olson $300 of that fee. (Tr. 156-57, 199-205; Adm. Ex. 5).
In another count of the indictment, the facts were similar to the first count. Judge Olson gave Petitioner the files of three defendants. Petitioner recalls handling the cases, but could not recall if he gave the judge any money. (Tr. 157).
In another count it was alleged that Petitioner paid Judge Alan Lane $10,000 in a case involving Rocco Filipponio. Petitioner admitted committing this crime. (Tr. 157). Filipponio was Petitioner's client and had been charged with possession of several ounces of cocaine and guns, including a machine gun. Petitioner described Filipponio as "physically imposing" with a reputation for violence. (Tr. 157-58). At the same time, Filipponio was on probation in a federal case for drug violations. (Tr. 158, 212). Petitioner filed a motion to suppress in the state case, and that motion was denied.
Subsequently, Filipponio told Petitioner that if he went back to prison, he was going to kill Petitioner, and Petitioner's wife and children. Petitioner believed Filipponio was serious. He did not tell the police about the threat because he was afraid. (Tr. 159). After the case was assigned to Judge Lane, Petitioner informed the judge of the threat. Judge Lane said he could help if Petitioner gave him $10,000. Petitioner paid Judge Lane the money, and Filipponio was acquitted. (Tr. 160-61).
Petitioner denied that he socialized with Filipponio, went to his apartment for dinner, or consumed drugs with him or at any time. (Tr. 213). Petitioner also denied that Filipponio videotaped him snorting cocaine or having sex. In a subsequent perjury trial, Petitioner testified that he was unaware of any videotape containing his image. Also, there was nothing in the court records showing a motion in limine regarding a videotape. There was no mention of the videotape during any part of Petitioner's federal case. (Tr. 214, 537-39). Filipponio died several years ago. (Tr. 214).
In another count, it was alleged that Petitioner paid Judge Lane $2,000. After the Filipponio case, Judge Lane called Petitioner and asked him to tell an attorney, Marty Schachter, who had a case involving Scott Greenberg pending before Judge Lane, that he was wanted money for that case. (Tr. 161-62, 214-16). Petitioner did not want to get involved, but Judge Lane reminded him that he owed him for the Filipponio case, so he did what the judge asked him to do. (Tr. 162). Petitioner asked Schachter for $2,000, and after receiving the money, he gave it to Judge Lane. Petitioner did not make any money from the transaction. (Tr. 161-62, 216-18).
Petitioner was also charged with and convicted of giving money to Judge Olson in a case involving his client Carlos Salgado. Although convicted of this crime, Petitioner continues to deny that he did it. (Tr. 163). In that matter, Petitioner had an ex parte discussion about the case
with Judge Olson, and told him that his fee for the case was $500. He was being paid more for the case, but did not want to say the real amount because he thought the judge might ask him for some money. Judge Olson did not ask for any money, and nothing else happened in the case. (Tr. 163-64, 205-211; Adm. Ex. 5).
Petitioner was also charged with and convicted of soliciting $10,000 in a case involving Michael Davis and Judge Lane. Petitioner continues to deny that he committed this crime. (Tr. 164). In that case, Judge Lane called Petitioner and told him that he might have wrongly convicted Davis, and wanted Petitioner to represent Davis in a motion for a new trial or an appeal. Davis was still represented by an attorney, but Petitioner thought he could help and wanted to earn a fee. (Tr. 164-65, 219-20). Petitioner visited Davis in jail and offered to represent him for $10,000. Petitioner denied that he wrote "$10,000 or 10 years" on a yellow legal pad of paper, or telling him that half the money was for Judge Lane. (Tr. 165, 220-22). Davis told Petitioner to call his girlfriend about the matter, but Petitioner did not remember if he called her. (Tr. 166, 222-23). Subsequently, Arthur Strong, one of Petitioner's clients, visited Davis in jail without Petitioner's knowledge. According to Petitioner, Strong did so on his own to curry favor with him. (Tr. 167, 223-24, 247-48). Petitioner intended to represent Davis and use the $10,000 for his fee. (Tr. 220-21). According to Petitioner, the contrary testimony of Davis, Davis's girlfriend and Strong at Petitioner's criminal trial was false. (Tr. 220-25; Adm. Exs. 14, 15, 16).
Petitioner was also charged with and convicted of soliciting $25,000 from Kevin Lane, and soliciting money from Thomas Minaghan and paying the money to Judge Adam Stillo. Petitioner continues to deny that he committed these crimes. (Tr. 168). The case involved drug charges against three defendants, Ken Billett, Kevin Lane and Thomas Minaghan. Petitioner
represented Ken Billett, and declined to represent the other defendants. (Tr. 168-69, 226). Billett was acquitted, and the other defendants were found guilty. (Tr. 170-72, 227). Lane and Minaghan's attorneys filed a post-trial motion. Based on the motion, Minaghan was given probation. Lane had a prior conviction that required incarceration, so even if the motion were successful, Lane would still have gone to prison. (Tr. 172-73, 231-32).
Lane subsequently testified that Petitioner told him if he paid Judge Stillo $25,000, Lane could get out of the conviction. Petitioner stated that Lane's testimony was false, and Lane admitted that his memory was affected by alcohol use. (Tr. 172-73, 227, 230-31; Adm. Ex. 18). Minaghan subsequently testified that he delivered $25,000 to Petitioner's secretary. Petitioner stated that this testimony was also false, and that Minaghan initially told the FBI that he needed the $25,000 to pay his trial counsel. Additionally, Petitioner's secretary testified that she did not receive any money from Minaghan. (Tr. 173-75, 227-29, 232, 245; Adm. Ex. 17). Petitioner maintains that he never gave Judge Stillo any money in connection with these defendants, and believes he was wrongly convicted on this charge. (Tr. 232-33).
On September 9, 1987, Petitioner was found guilty of all charges. On September 23, 1987, he was sentenced to ten years in prison. (Tr. 176, 234-35; Adm. Exs. 2, 3, 4, 6, 12). Petitioner's sentence also required his probation officer to monitor him for drug use. This condition of probation was based on the testimony of Filipponio and Strong, who had testified that Petitioner used drugs with them. (Tr. 235, 244-45). Petitioner would have been eligible for parole after serving 40 months, and with good time credits, he could have been released after serving 69 months and 27 days. (Tr. 177). He served the maximum amount of prison time. (Tr. 177, 236). Federal District Court Judge Prentice Marshall wrote a letter on Petitioner's behalf recommending that he be paroled after serving one-third of his sentence, but he was not paroled
until he served two-thirds of his sentence. (Tr. 178-80, 241; Pet. Ex. 1; Adm. Ex. 10). Petitioner was not ordered to pay restitution, and has made no attempts to do so. (Tr. 176-77). While in prison, Petitioner tutored other inmates in math and reading, and read materials in the law library. (Tr. 180). After leaving prison, Petitioner was on probation and parole for two years. (Tr. 236). He never tested positive for drugs either while in prison or on probation and parole. (Tr. 246).
Also while in prison, the attorneys from U.S. Attorney's office sought Petitioner's testimony in other Greylord cases. According to Petitioner, they told him that if he gave them information, he would get out of prison early. Assistant U. S. Attorney Scott Mendeloff met with Petitioner to discuss the indictments of Judge Stillo and Judge Maloney. According to Petitioner, Mendeloff told Petitioner that if he gave him information about these judges, he could get out of prison in a few months, and if he did not give the information, he would stay in prison for two and one-half more years. (Tr. 185-87). Petitioner testified that he had no information about these judges acting improperly, and that although he could lie and get out of prison earlier, he refused to fabricate a story. (Tr. 187-88, 242).
At one point in time while Petitioner was in prison, he was brought to the Metropolitan Correctional Center (MCC) in Chicago, and placed on a high security level floor with violent criminals, and was involved in several fights. (Tr. 181-83). He was at the MCC for ten months, which he said was an unusually long time for a Greylord defendant. (Tr. 183-85).
Petitioner described his misconduct as "horrendous, egregious, dishonorable, disgraceful" and is ashamed of it. (Tr. 162). Respondent performs volunteer work at a retirement home for two hours each week, and has been doing so for approximately one year. He also takes care of his 83 year old mother, and his wife, who has multiple sclerosis. (Tr. 190-91, 237). Petitioner
believes that in the 21 years since he was disbarred, he has led a constructive and trustworthy life, and that he is knowledgeable and respectful of the legal system. (Tr. 192). He has continued to educate himself about the law by reading advance sheets and legal literature. (Tr. 193-94). Petitioner has made no restitution in this case because he believes he did not obtain any unearned money, and because he does not know to whom he would make restitution. (Tr. 238-41, 250-51).
Petitioner stated that the only judges he either gave money to or was convicted of giving money to were Judges Olson, Lane and Stillo. (T. 560). In testimony Petitioner gave before a federal grand jury on September 29, 1987, he denied giving any money to Judge McDonnell. (Tr. 567-68, 588; Adm. Ex. 25). Subsequently, he was given immunity. In grand jury testimony he gave on April 6, 1988, Petitioner stated that he appeared before Judge McDonnell between 10 and 20 times, and paid him money every time he appeared before him. He also stated that he received a favorable result in every case except one. (Tr. 561-67; Adm. Ex. 27). Petitioner stated that the subsequent grand jury testimony was false, and he gave it because he was told that if he did not, he would be charged with perjury. (Tr. 590-91). He did not testify at Judge McDonnell's trial because he said he would say he did not give McDonnell any money. (Tr. 591).
On April 13, 1988, Petitioner testified before the federal grand jury and stated that while he was an assistant state's attorney, he received money from defense attorneys. (Tr. 577-79; Adm. Ex. 28). At a deposition before the ARDC, Petitioner stated that while working as an assistant state's attorney, he never accepted a bribe. (Tr. 580). At the disciplinary hearing, Petitioner denied that he took any money from defense attorneys, and stated that he falsely
testified before the grand jury because he was threatened with perjury if he did not so testify. (Tr. 592).
On April 20, 1988, Petitioner testified before the federal grand jury and stated that he had given money to Judges Ryan, Martay, and Downing. (Tr. 572; Adm. Ex. 29). Petitioner stated that he did not include these facts in his petition for reinstatement because he did not give money to these judges. (Tr. 572). Petitioner stated that his testimony before the grand jury was false. He only said those things because the assistant U. S. Attorney was pressuring him for more names and threatening to charge him with perjury. To satisfy the assistant U. S. Attorney, Petitioner testified that he gave him the names of these judges, all of who were deceased. (Tr. 593-94).
At a deposition before the ARDC, Petitioner stated that he was called before the grand jury on one occasion, and did not testify after invoking his rights under the 5th amendment. However, in addition to the grand jury testimony he gave on September 29, 1987, and April 6, 1988, he gave testimony before the grand jury on April 13 and 20, 1988. (Tr. 569-71; Adm. Exs. 26-28). When Petitioner made this statement about being called before the grand jury on one occasion, he stated that he was referring to his grand jury appearance before he was indicted. (Tr. 587). He also stated that he did not give money to any judges other than Lane, Stillo and Olson. (Tr. 572-73).
James B. Koch
James B. Koch was licensed to practice law in 1979, and worked for the special prosecutions bureau of the Cook County State's Attorney's Office between 1981 and 1986. (Tr. 261-62). In 1984, Koch worked on a criminal case in which Petitioner and Filipponio were defendants. The charges included perjury and subornation of perjury. Petitioner was found not
guilty, and Filipponio was found guilty and sentenced to seven years in prison. (Tr. 262-63). The underlying facts involved Filipponio recruiting a witness to falsely testify in a criminal proceeding in which Filipponio was a defendant. Petitioner had represented Filipponio in that case. (Tr. 263-64). During the course of the perjury case, Koch obtained videotapes from Marie Dyson, who worked for the FBI. The tapes were disclosed to Petitioner's attorney during the course of the perjury case. (Tr. 265-66, 271, 484). According to Koch, Petitioner's attorney was present when a portion of the videotape was shown in the judge's chambers. (Tr. 271, 489, 496-98). Koch also testified that the videotape was not shown during the trial because the defendant's motion in limine was granted. (Tr. 502). The court's half sheet, however, does not reference a motion in limine for the videotape. (Tr. 507-511; Pet. Exs. B, C).
In the perjury case, Petitioner was represented by Nick DeJohn. (Tr. 481). Koch prosecuted the case, and had primary responsibility for investigating the matter. (Tr. 482). Koch recalled viewing a videotape that led him to discovering an important witness. (Tr. 483). Filipponio made the tape, and it contained images of Filipponio and Petitioner. (Tr. 486, 541-42). As part of the investigation, Koch was trying to find the woman who was in the car with Filipponio when he was arrested. The police officers who arrested Filipponio knew that the woman he said was with him was not the same woman who was with him when he was arrested. Koch thought the woman he was looking for was named Sharon. (Tr. 544). In the videotape, Filipponio spoke to a woman he called Sharon. (Tr. 544). From references made in the tape, Koch was able to find the correct woman, Sharon Eatman. (Tr. 545-46).
The videotape also showed Petitioner appearing to consume a white powder through his nose, and Koch believed he was snorting cocaine. Filipponio was sitting at the same table with
Petitioner and doing the same thing. (Tr. 546-47). Koch did not know when or where the videotape had been made. (Tr. 549).
Terry Chiganos is an attorney who worked for the Cook County State's Attorney's Office from 1975 to 1986. (Tr. 525-26). Chiganos was Koch's supervisor during Roth's and Filipponio's perjury trial, and helped prosecute the case. He recalled viewing a videotape of Filipponio and some women, but not one of Petitioner. (Tr. 527-28, 533-34). He testified that the videotape was not played during the trial. (Tr. 531).
Sheldon Zenner is an attorney who worked for the United States Attorney's Office between 1981 and 1989. (Tr. 279-81). Zenner prosecuted numerous Greylord cases, including Petitioner's case. (Tr. 281-83). According to Zenner, Petitioner was given the opportunity to cooperate with the government before the Greylord cases were made public, but he declined to do so. (Tr. 287-88). Zenner prepared a document for Petitioner's sentencing hearing stating the government's version of the facts of the case. The document restates the facts of the case and compares Petitioner's conduct to other defendants in similar cases. (Tr. 288-89; Adm. Ex. 6). Zenner testified that during Petitioner's trial two former clients testified that Petitioner had used drugs. (Tr. 292-93). Petitioner received the longest sentence of any non-judge who was convicted in the Greylord cases. (Tr. 293). Zenner opined that, during the time of his investigation, Petitioner did not have a reputation for truth and veracity in the legal community. (Tr. 295). He also reviewed many of Petitioner's client files and concluded that Petitioner did not do much legal work on those cases. Zenner never saw Petitioner try a case. (Tr. 297-98,
300-303). He also believes that Petitioner's conduct had an extraordinary negative impact on the legal system. (Tr. 298-99).
Zenner is familiar with the MCC, but does not know how it is organized. (Tr. 306-307). As an assistant U.S. Attorney, Zenner did not have authority to remove prisoners from their assigned prisons, but could issue a writ to have a prisoner brought to the MCC if there were a reasonable basis for doing so. (Tr. 307-309). According to Zenner, usually a prisoner would be brought to the MCC if he were going to be questioned or testify at a grand jury. (T. 311). In 1988, Petitioner was moved to the MCC to either cooperate or testify at the grand jury. The Bureau of Prisons decided how long he stayed at the MCC, not Zenner. (Tr. 312-13). He knew Petitioner was at the MCC, but did not know who long he was there or that he was assaulted while there. (Tr. 314).
Zenner stated that Filipponio was a witness in Petitioner's case. Zenner knew Filipponio was a drug dealer, drug addict and a violent person, but concluded that he testified truthfully at Petitioner's trial. (Tr. 316). He believed that Petitioner and Filipponio were friends. (Tr. 328). Zenner also knew Strong was a thief, forger, drug dealer and drug addict. (Tr. 317). Zenner also knew Kevin Lane was an alcoholic and drug dealer. (Tr. 318-19). Zenner knew Minaghan was a drug dealer, and Zenner testified that Minaghan had initially denied that he had any conversations with Petitioner about $25,000. At the trial, however, Minaghan was testifying under a grant of immunity and testified to conversations with Petitioner about the $25,000. (Tr. 319-20, 328). Zenner knows nothing about Petitioner's life after he left prison, but believes he should not be reinstated. (Tr. 321-23).
Ken Merlino is an attorney who represented Kevin Lane in a post-conviction proceeding. (Tr. 356-57). Lane cooperated in the criminal prosecution of Petitioner. (Tr. 359). Lane had been convicted of a Class X felony, and wanted the conviction removed from his record. Merlino argued that Lane was denied due process because the outcome of his trial had been fixed, in part due to Petitioner's involvement with Judge Stillo. Essentially, Merlino argued that because one of the other defendants paid a bribe, and Lane did not, Lane was treated unfairly. (Tr. 359-61, 372-73). The petition relied on the fact that the federal court, in Judge Stillo's case, found that a bribe had changed hands in Lane's case. (Tr. 361). The circuit court denied the petition, but the appellate court reversed that decision and found that Lane's constitutional rights had been violated, and reversed the conviction. (Tr. 362-63; Adm. Ex. 9). Judge Stillo was never tried in federal court in relation to the Lane case. (Tr. 367).
Marie Dyson worked for the FBI as a special agent from 1979 to 2002. When she worked in Chicago, she investigated several of the Greylord cases, including Petitioner's case. (Tr. 376-79). In 1983 or 1984, during the investigation of Petitioner, Dyson interviewed Filipponio and acquired some photographs and videotapes. (Tr. 382-83, 402). The federal government no longer has possession of the photos or tapes, and gave them back to Filipponio in 1987. (Tr. 383, 404-405). For some period of time, the videotapes were in the possession of the Cook County State's Attorney's Office. (Tr. 404, 414). She was unsure whether the FBI made copies of the videotapes before returning them. (Tr. 412-13, 415). Dyson also interviewed Petitioner's secretary, Anita Gaytos, who denied that she received $25,000 from Minaghan for
Petitioner. Dyson stated that Minaghan told her that he gave Gaytos the money. (Tr. 384, 399-400).
During the investigation of Petitioner, Dyson interviewed hundreds of individuals and reviewed hundreds of court files of Petitioner's client's, and drew the conclusion that he did not represent clients as a lawyer normally would, but was more interested in paying judges to fix cases. (Tr. 387-90, 400). Filipponio initially refused to cooperate because Petitioner and Petitioner's attorney told him not to cooperate. (Tr. 391). Dyson also learned, from Strong, Filipponio and Salgado, that Petitioner had purchased and used cocaine. (Tr. 394). She knew that Filipponio was a drug dealer and user; Strong was a thief, forger, drug dealer and drug addict; and Minaghan had been arrested for possession of drugs. (Tr. 396-97). Dyson believes that Petitioner's conduct caused harm to the legal profession and the judicial system. (Tr. 394).
Terrence Hake is an attorney and who worked for the Cook County State's Attorney's Office from 1977 to 1981, and the FBI from 1981 to 1983. (Tr. 418-19, 424). For nine months in 1980 and 1981, he worked undercover for the FBI and U.S. Attorney's Office in connection with the Greylord investigation, and was assigned to Judge Olson's courtroom. Hake held himself out as a corrupt attorney willing to take bribes to fix narcotics cases, in order to learn if Judge Olson was taking bribes. (Tr. 421-24). He was also a member of the team that installed the recording device in Judge Olson's chambers. (Tr. 427). Hake testified as to the meaning of some of the terms used in the transcripts made from the recordings. (Tr. 430-35). He opined that Petitioner was a corrupt attorney. Hake knows nothing about Petitioner's life since he was convicted. (Tr. 437-38). Hake testified that Petitioner never paid him a bribe. (Tr. 438).
Martin Schachter was an attorney who struck his name from the Master Roll of attorneys after being convicted in 1984 for bribing a judge. (Tr. 439-40). He agreed to cooperate with the government in the Greylord cases. (Tr. 441). Schachter gave Petitioner money to give to Judge Lane in connection with a criminal case involving Scott Greenberg. (Tr. 441-43). An associate at Schachter's law firm represented Greenberg. While in court, Judge Lane told the associate that he needed help with the case. Subsequently, Petitioner called Schachter, and they met at Petitioner's office. Schachter stated that Petitioner told him that Judge Lane wanted to help in the case, but was not a charitable man, which Schachter took to mean the judge wanted a bribe. According to Schachter, Petitioner also asked Schachter the amount of his fee. (Tr. 445-47). After a second conversation, Schachter give Petitioner $2,000 to pay Judge Lane. (Tr. 448). Later, Schachter gave Petitioner an additional $2,000 for Judge Lane. (Tr. 449-50). Schachter testified that Petitioner did not appear reluctant to take the money and did not say anything about feeling indebted to Judge Lane. (Tr. 450).
In his legal career, Schachter paid five judges bribes, beginning in 1978. (Tr. 452). He also paid judges for sending him cases. (Tr. 453). He never spent any time in prison. (Tr. 454-55).
Scott Mendeloff is an attorney who worked for the U. S. Attorney's Office between 1986 and 1997, and worked on several Greylord cases, including Petitioner's case. (Tr. 457-59). Mendeloff visited Petitioner while he was in prison, to seek his cooperation in Judges Stillo and Maloney's cases. (Tr. 459-60). He told Petitioner that if he provided truthful testimony, his office would petition the court for Petitioner's release from prison. Petitioner did not provide
any information in the cases. (Tr. 462-64). Mendeloff prosecuted Judge Stillo, but not on the cases involving Petitioner's clients. (Tr. 465-66).
Neil Cohen is an attorney licensed to practice law in Illinois in 1975. (Tr. 119). He worked for the Cook County State's Attorney's Office from 1976 until 1987, and subsequently worked in private practice. (Tr. 119-120). On September 30, 1991, Cohen was at the federal correctional facility in Duluth Minnesota, representing Petitioner at a meeting with Scott Mendeloff, an assistant U.S. attorney. (Tr. 120). According to Cohen, Mendeloff was trying to convince Petitioner to testify on behalf of the government in other Operation Greylord cases. Mendeloff stated that Petitioner could substantially reduce his prison time if he cooperated. (Tr. 120-123). Petitioner was specifically asked about money paid to Judges Maloney and Stillo. Petitioner denied knowing anything about these judges and told Mendeloff that he would not lie to get out of prison. (Tr. 124-127).
Barry Shepard is an attorney licensed to practice law in Illinois in 1976. He has known Petitioner since 1964. (Tr. 86-88). Shepard knew Petitioner to be a prepared and zealous attorney who taught him many valuable lessons about practicing law, including keeping a card catalog containing current case law. (Tr. 89-91). Shepard has spoken with Petitioner since his release from prison, and he testified that Petitioner was very contrite and remorseful for his misconduct. (Tr. 92-93). Until approximately five years ago, Shepard gave Petitioner's brother, Larry, legal materials for Petitioner so he can remain current in the law. (Tr. 93-94, 106). He believes that if Petitioner were given a chance to practice law, he would be a good lawyer. (Tr.
96-97). Shepard knew nothing about Petitioner's misconduct at the time it occurred, and never discussed the specific details with him. (Tr. 102-103).
Jason Roth is Petitioner's son and an attorney. (Tr. 29). Jason was 10 or 11 years old when Petitioner went to prison, and Petitioner's incarceration had a dramatic financial and emotional impact on their family. (Tr. 29-30). Jason currently has an excellent relationship with Petitioner. Jason has a six-month old daughter and Petitioner is involved in her life. (Tr. 31-32). Jason is aware of the crimes his father committed, and Petitioner has acknowledged to Jason his wrong-doing and remorse for them. (Tr. 32-33). Jason is aware of Petitioner's efforts to stay current of the law including reading the Rules of Professional Conduct, advance sheets and bar journals. (Tr. 34). Since being released from prison, Petitioner has led an honest life and been devoted to his family. (Tr. 34).
Ronald Magnes is a retired Cook County Circuit Court judge. (Tr. 37). Judge Magnes met Petitioner while they were both working for the Cook County State's Attorney's Office. He described Petitioner as a dedicated, fair and hard working assistant state's attorney. (Tr. 38-39, 43). After leaving the State's Attorney's Office, Petitioner developed a reputation as a hard working and industrious defense attorney. (Tr. 39). Petitioner has acknowledged that he engaged in criminal conduct and was remorseful, but he never made admissions of specific criminal acts. (Tr. 39-40, 51-52). Judge Magnes has lived in Florida for the past ten years, but has stayed in touch with Petitioner. (Tr. 43-44). Although Judge Magnes is aware that Petitioner was convicted of bribing judges, he does not believe Petitioner actually did it. (Tr. 50-51).
Lee Gimbel has been friends with Petitioner for more than 50 years. (Tr. 53-54). Gimbel is aware of Petitioner's criminal convictions and the underlying facts. Gimbel testified that Petitioner has taken responsibility for his misconduct and is remorseful. (Tr. 56-57). According to Gimbel, since leaving prison, Petitioner has been devoted to his family and led an exemplary life. (Tr. 57-58).
Steven Emer is married to Petitioner's sister. (Tr. 65-66). In 1995, after Petitioner was released from prison, Emer hired him to work the investment company Emer owned. (Tr. 66-67). Petitioner started as a clerk, and after a few years, was promoted to assistant trader. (Tr. 67). Emer was confident in Petitioner's integrity and honesty, and allowed him to work unsupervised. (Tr. 68). Petitioner stopped working for the company in 2002. (Tr. 68-69). Emer is generally aware of the crimes Petitioner committed, but not the specific facts. Petitioner has acknowledged his misconduct and expressed remorse for it. (T. 70-76).
David Goldberg has been friend with Petitioner since they were in grammar school. (Tr. 79). Goldberg is a furniture salesman for the Dania company. Goldberg testified that Petitioner applied for a job with that company, but was not hired because of his felony convictions. (Tr. 79-80). Petitioner has admitted his criminal conduct to Goldberg, and is remorseful for it. (Tr. 81). Goldberg described Petitioner's life since leaving prison as exemplary, and devoted to his family. (Tr. 81-82).
Gerald Lipkin has been friends with Petitioner for 45 years. (Tr. 129-30). Petitioner has generally discussed his misconduct with Lipkin, accepted responsibility for it and expressed remorse. (Tr. 131, 135-36). Lipkin opined that Petitioner's conduct since being released from prison has been exemplary. (Tr. 132). He testified that Petitioner's reputation for truth and veracity is excellent. (Tr. 132-35).
Morris Beard is an attorney who has known Petitioner for 60 years. (Tr. 137-38). At one point in time, Beard and Petitioner worked together at the State's Attorney's Office. Beard described Petitioner as an efficient and zealous attorney. (Tr. 138-39). Beard is aware of the crimes Petitioner committed and visited him while he was incarcerated. According to Beard, Petitioner has acknowledged misconduct and was remorseful. (Tr. 139-40). Petitioner did not tell Beard about his misconduct when it was occurring. (Tr. 145-46). Beard and Petitioner are social friends. (Tr. 141). Over the last eight or nine years, Beard supplied Petitioner with legal periodicals and journals, so Petitioner could remain current in the law. (Tr. 141-42). Beard opined that Petitioner is fit to practice law. (Tr. 143).
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.
S. Ct. R. 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 failed to prove that he should be reinstated.
1. The Nature of Petitioner's Misconduct.
We find the nature of Petitioner's misconduct is extremely serious. In fact, it is difficult to envision a more serious breach of an attorney's ethical responsibilities. The Court has repeatedly and emphatically condemned bribery of public officials as "as serious offense that undermines the integrity of our system of government." Alexander, 128 Ill.2d at 535. The Court further stated "moreover, ‘for a lawyer to participate in such an offense is particularly reprehensible.'" Alexander, 128 Ill. 2d at 535, quoting In re Gottlieb, 109 Ill. 2d 267, at 270, 486 N.E.2d 921 (1985).
It is undisputed that Petitioner was found guilty in federal court several acts of bribing judges and soliciting money to bribe judges. As the Seventh Circuit stated, Petitioner "was a crooked lawyer. He made a living bribing crooked judges. Often Roth played the broker's role, matching lawyers who did not know which judges would take money with judges who did not know which lawyers would pay it." U.S. v. Roth, 860 F. 2d 1382, 1383 (7th Cir. 1988). We believe that paying judges to affect the outcome of a criminal case completely undermines the legal system and makes a mockery of justice. Petitioner was convicted of doing this on three separate cases, two involving drug cases and one involving an armed robbery. In the first drug case, Petitioner's client, Filipponio, was arrested for possessing drugs and a machine gun. Petitioner paid Judge Lane $10,000, and Judge Lane dismissed the case.
In the second drug case, there were three defendants. Petitioner represented one at trial. His client was acquitted and the other two were convicted. Petitioner approached the other two defendants, Kevin Lane and Thomas Minaghan and offered to represent them in post-trial proceedings if they paid him $25,000, part of which would go to Judge Stillo. Petitioner told the two defendants "it was too late to get an acquittal, but that money could palliate things. Stillo ‘doesn't read case law' Roth said, but knows that money talks." Roth, 860 F.2d at 1385. According to the 7th Circuit, on the morning Judge Stillo was to rule on the post-conviction motions, defendant Minaghan delivered $25,000 to Petitioner's office. Judge Stillo sentenced Minaghan to three years' probation. Defendant Lane, who did not pay the money, was sentenced to six years in prison.
In the armed robbery case, Judge Lane instructed the attorney representing defendant Greenberg to contact Petitioner. The attorney contacted Petitioner, and Petitioner told him that Judge "Lane would like to ‘help out' the defendant but was ‘not a charitable man.'" Roth, 860
F.2d at 1385. The attorney gave Petitioner $2,000. Judge Lane granted the defendant's pending motion and suppressed the defendant's confession. Subsequently, Petitioner collected an additional $2,000 from the defendant to ensure a favorable outcome on the merits. However without the confession, the State dismissed the case.
In another case, Petitioner was convicted of soliciting $10,000 from defendant Davis. Judge Lane told Petitioner to represent Davis in post-trial proceedings. Davis was represented by a different attorney during his trial. Petitioner visited Davis in jail and offered to represent him for $10,000, with half the money going to Judge Lane. Davis was unable to get that amount of money and Petitioner did not represent him.
Despite Petitioner's attempts to characterize his actions differently, and deny that he engaged in all of the criminal acts, we find that he committed all of the crimes for which he was convicted. We specifically find that Petitioner's testimony to the contrary was devoid of credibility. As will be discussed in more detail in a subsequent section, Petitioner testified before us that he has lied under oath on more than one occasion. He has proven that his testimony is unreliable and undependable, and we simply cannot believe what he says. This is especially true here where he is attempting to convince us that he did not engage in the crimes for which he was lawfully convicted in federal court. For example, in the Davis matter, Petitioner continues to deny soliciting the money from Davis, even though Davis, Davis's girlfriend and one of Petitioner's former clients testified against him at his criminal trial. It was abundantly clear to us that in certain instances, Petitioner continues to cling to his version of the facts, no matter how unbelievable and no matter how much evidence contradicts him.
Even if, for the sake of argument, Petitioner did not commit all the crimes for which he was convicted, he admitted that he paid Judge Lane $10,000 in the Filipponio case, paid Judge
Lane $2,000 in the Greenberg case, and split his fees with Judge Olson in two other cases. Our determination regarding the seriousness of the misconduct would not be any different if we considered only these crimes. One instance of bribing a judge is extremely serious, Petitioner admitted to two instances.
Petitioner attempted to mitigate his conduct in the Filipponio matter by claiming that Filipponio threatened to kill his family if he were convicted. According to Petitioner, he approached Judge Lane because he was afraid of Filipponio and believed his threats. There is absolutely no evidence in the record to support Petitioner's statements. Even now, Petitioner fails to explain why he failed to consider or pursue other ways of dealing with Filipponio's alleged threat. He claimed that he was too afraid to go to the police, but gave no explanation of other options he might have considered or even whether he discussed the matter with anyone else. We do not believe Filipponio made the threat, but even if he did, the fact that Petitioner's first course of action was to try to bribe a judge speaks volumes about Petitioner's character.
2. The Maturity and Experience of Petitioner at the Time Discipline was Imposed.
Petitioner was 42 years old and had practiced law for 16 years when he was indicted on federal charges. Additionally, he had worked for the Cook County State's Attorney's Office for five years. Accordingly, Petitioner was of sufficient maturity and had adequate experience at the time of his misconduct. Moreover, understanding that it is wrong to bribe judges is not the type of misconduct that requires much maturity and experience. Rather, it is the type of misconduct that any practicing attorney would know is wrong.
3. Petitioner's Recognition of the Nature and Seriousness of His Misconduct.
We find that Petitioner fails to fully appreciate the seriousness of his misconduct. Petitioner acknowledged that he acted improperly when he bribed judges. However, his
expressions of remorse did not appear to be genuine. Instead, he appeared to be more remorseful for the consequences his actions had on his personal life than on any real sense of wrongdoing. His statements of remorse appeared hollow and insincere, and mask his anger at the legal system and his indignation that he was treated more harshly than others who engaged in similar misconduct. His statements were not those of a person who is truly remorseful or truly understands the ramifications of his actions. 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 weighs against his reinstatement. Petitioner has done almost nothing constructive since he was disciplined to show that he is a changed man. Since Petitioner has been released from prison, he has spent almost all of his time attempting to restore his relationship with his family. While this is admirable on one level, it is insufficient to positively affect his reinstatement to the practice of law. Although Petitioner's actions harmed his family, it also harmed the legal system and society in general. He has done absolutely nothing to counterbalance these harms. He offers the fact that he volunteers at a retirement home. However, he began volunteering only after he filed this petition for reinstatement, and for two hours per week. Petitioner has been out of prison for 13 years and the only charitable work he has performed was after 12 years and only on an extremely limited basis. He has done nothing relating to the legal profession.
Additionally, Petitioner has been unemployed for the past six years. Although we understand that it can be difficult for a convicted felon to gain employment, his lack of
employment has prevented him from showing that he has reestablished himself in a position of trust in the community. He was employed for a period of time by his brother-in-law, but has not been gainfully employed since 2002.
We are not in a position to suggest what Petitioner must do to satisfy this requirement for reinstatement, but we can say that based on the seriousness of his misconduct, he has a long way to go. See In re Wood, 07 RT 3004, M.R. 21816 (September 16, 2008) (an attorney who was disbarred after convictions for selling cocaine was reinstated after he acted as a government informant, was active in drug prevention and treatment groups, established support groups in areas of the state that needed them, engaged in extensive volunteer work and was employed in a position of responsibility).
Moreover, we are also not convinced that Petitioner is currently knowledgeable of the law. Petitioner presented evidence that he has read legal materials while in prison and after being released; however, that evidence is vague and inadequate to prove that he is currently knowledgeable of the law. Importantly, Petitioner has attended no continuing legal education courses.
We give little weight to the character testimony presented by the Petitioner. All of the witnesses were either close friends or family members of Petitioner, and stated that Petitioner has lead an "exemplary" life since leaving prison. None of them, however, gave details to support their conclusory statements, and we find no facts in the record. As noted, Petitioner has made amends with his family, but that is only one facet of showing that he is changed. Petitioner has presented no evidence that relates the legal profession or the community in general.
6. Petitioner's Candor and Forthrightness in Presenting Evidence in Support of His Petition.
We find that Petitioner was not candid and forthright in presenting evidence in support of his petition, and we find large portions of his testimony not credible. See Smith, 168 Ill. 2d at 283. Petitioner admitted that he has lied under oath in the past. In fact, he has told so many different stories for so many different reasons, that we cannot determine when he is telling the truth, and therefore, cannot rely on his testimony.
Petitioner's grand jury testimony exemplifies our credibility findings. On September 29, 1987, he testified before a federal grand jury that he did not give any money to Judge McDonnell. Subsequently, he was given immunity and on April 6, 1988, he testified he paid Judge McDonnell money in between 10 and 20 cases, and received a favorable result in all but one of those cases. At the disciplinary hearing, Petitioner testified that the second testimony was false and he gave it because he was threatened with a perjury charge.
On April 13, 1988, Petitioner testified before a federal grand jury that while an assistant state's attorney, he took money from defense attorneys. At a deposition before the ARDC, he stated that he never took any bribes as an assistant state's attorney. During the disciplinary hearing he testified that he lied before the grand jury about those bribes because he was threatened with a perjury charge.
On April 20, 1988, he again testified before the federal grand jury and stated that he had given money to Judges Ryan, Martay and Downing. At the disciplinary hearing, Petitioner testified that the grand jury testimony was false, and he gave it because he was pressured by the U.S. Attorney's Office and threatened with a perjury charge. He only gave these judges's names then because they were already deceased.
Not only did Petitioner give false testimony either to the grand jury or to us, but he also falsely testified about the number of times he testified before the grand jury. In a deposition before the ARDC, he stated that he was only called before the grand jury on one occasion, and invoked his 5th amendment rights. At the disciplinary hearing, he admitted that he testified before the grand jury on at least four occasions. It is obvious to us that Petitioner falsely testified at the deposition to hide the fact that he lied in his grand jury testimony. Petitioner only admitted to his lies when confronted with them and only after he tried to hide them.
In the Seventh Circuit's opinion, the court also described how Petitioner made inconsistent statements during his federal criminal trial and appeal. Petitioner appealed his conviction arguing that he was denied a fair trial because his trial attorney had a conflict of interest. Petitioner was represented by Patrick Tuite, who represented several judges and lawyers, including Judge John McConnell, who were either under investigation or charged in connection with Operation Greylord. This created potential conflicts of interest. Tuite called the potential for conflict to the trial judge's attention, and Judge Getzendanner questioned Petitioner about it. In open court, Petitioner stated that he was aware of all of the potential conflicts and waived them. Roth, 860 F.2d at 1386-87.
Also during the trial, Petitioner waived his right to testify on his own behalf, and never indicated that he wanted to testify, or that Tuite talked him out of it. Instead, at trial, he voluntarily waived his right to testify. After he was convicted, Petitioner testified, on September 29, 1987, before the grand jury that he never gave any money to Judge McDonnell. However, seven months later, on April 6, 1988, he testified before the grand jury that he gave money to Judge McDonnell. On appeal, Petitioner argued that Tuite prevented him from testifying in order to protect Judge McDonnell, and precluded the prosecutor from questioning him about
bribes to Judge McDonnell. The Seventh Circuit noted that this argument, "amounts to the claim that he [Petitioner] twice was less than candid with the court: once when he told Judge Getzendanner that his decision not to testify was his own, and once when (after his conviction) he told the Greylord grand jury that he had never given money to Judge McDonnell." Id. at 1387. According to the Court, if Petitioner's statements were true, there would have been no reason for Tuite to protect Judge McDonnell because Petitioner did not give him any money. The Court correctly concluded that "Roth appears to be playing games with the judicial system, telling judge Getzendanner and the Greylord grand jury one thing, then changing his story when that suits his purposes."
Petitioner appears to be doing the same thing before this Panel. Not only does it severely undermine his credibility, but it also establishes that he has not changed his ways, is not rehabilitated and would pose a significant risk to engage in misconduct if he were reinstated to the practice of law.
The Court has repeatedly sated 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, as the Court has stated in other cases, that allowing the petition for reinstatement "would seriously devalue the importance of restoring the public and the legal profession's confidence in the fair administration of justice." Martinez-Fraticelli, 221 Ill. 2d at 274, quoting Alexander, 128 Ill. 2d 524.
Based on the evidence and our findings, we conclude the Petitioner has failed to meet 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 denied.
Date Entered: December 3, 2008
|Arthur B. Smith, Jr., Chair, Michelle M. Montgomery, and Katheryn H. Ward, Hearing Panel Members.|