Filed September 23, 2009
In re Bruce Roth
Supreme Court No. M.R. 21650
Commission No. 07 RT 3002
Synopsis of Review Board Report and Recommendation
As part of Operation Greylord, Petitioner-Appellant, Bruce Roth, was convicted in 1987 of soliciting and paying bribes to Cook County judges, He was disbarred on consent in December 1987. Roth filed a petition for reinstatement in 2007.
The Hearing Board found that all of the applicable factors pertaining to rehabilitation weighed against Roth and recommended that his petition for reinstatement be denied. On review, Roth argued that the Hearing Board committed prejudicial evidentiary errors and that its findings regarding his rehabilitation were against the manifest weight of the evidence.
The Review Board upheld the Hearing Board's evidentiary rulings as well as its findings that Roth did not meet his burden of proving that he is rehabilitated. Consequently, the Review Board recommended that Roth's petition for reinstatement be denied.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
|Supreme Court No. M.R. 21650
Commission No. 07 RT 3002
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes before the Review Board on the exceptions of the Petitioner-Appellant, Bruce Roth, to the Hearing Board's recommendation that his Petition for Reinstatement be denied. In 1987, in connection with Operation Greylord, Roth was convicted of numerous federal charges related to the solicitation and payment of bribes to Cook County judges. In December 1987, Roth was disbarred on consent.
Roth filed his Petition for Reinstatement in 2007. Following a hearing, the Hearing Board concluded that he had not proven by clear and convincing evidence that he is rehabilitated, is of good character, and is currently knowledgeable in the law. On review, Roth argues that the Hearing Board made prejudicial evidentiary errors and that the findings that formed the basis of its recommendation to deny the Petition for Reinstatement were against the manifest weight of the evidence.
Roth was licensed to practice law in Illinois in 1971. He was a Cook County State's Attorney until 1976, when he entered private practice.
In 1984, Roth, one of his clients, Rocco Filliponio1, and several other defendants were charged in Cook County with perjury and the subornation of perjury. The State alleged that
Filliponio asked a witness to testify falsely in Filliponio's criminal trial. Roth represented Filliponio in his criminal case. During the proceedings, James B. Koch, formerly an attorney in the special prosecutions bureau of the Cook County State's Attorney's office, obtained videotapes from FBI employee Marie Dyson which, according to Koch, showed Roth snorting a white powder with Filliponio. Of several attorneys who were involved in the perjury case, Koch is the only one who recalls seeing Roth on the videotape. The tape was not shown during the perjury trial. Roth was found not guilty, and Filliponio was found guilty and sentenced to seven years in prison.
In 1985, Roth was indicted on federal charges for bribing judges and soliciting bribes for judges. He was convicted in 1987. In an opinion upholding his conviction, the United States Court of Appeals for the Seventh Circuit succinctly described his crimes:
Bruce Roth, the defendant in this Greylord prosecution, 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. For these services, he has been convicted of violating the Hobbs Act, 18 U.S.C. sec. 1951, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. secs. 1961-68; he was sentenced to 10 years in prison.
United States v. Roth, 860 F.2d 1382, 1383 (7th Cir. 1988).
Roth admitted that he committed some of the crimes for which he was convicted, but denied committing others. Also, on three occasions in 1987 and 1988 he testified before a grand jury that he committed other crimes, including accepting money from defense lawyers while he was an Assistant State's Attorney, paying money to Judge John McDonnell every time that he appeared before him, and making payments to Judges Ryan, Martay, and Downing, who were deceased at the time of his grand jury testimony. Roth's grand jury testimony about Judge McDonnell contradicted his previous grand jury testimony in which he denied making payments
to Judge McDonnell. During his reinstatement hearing, Roth testified that his admissions to the foregoing crimes were false. He stated that prosecutors pressured him to make the admissions to the grand jury and threatened to charge him with perjury if he refused to do so.
Roth served six years in prison, the maximum amount under the applicable sentencing law. While in prison, he tutored other inmates in math and reading. After Roth had served about 3 1/2 years of his sentence, U.S. Attorney Scott Mendelhoff visited him and asked for his cooperation in the prosecution of Judges Adam Stillo and Thomas Maloney. Mendelhoff told Roth that he could get out of prison in a few months if he agreed to testify against Stillo and Maloney. Roth told Mendelhoff that he did not pay bribes to Stillo or Maloney and would not lie to shorten his sentence. He remained in prison for 2 1/2 more years.
After his release from prison, Roth worked for his brother-in-law, Steven Emer, at Goldsure Investments. Roth started as clerk, then became an assistant trader and earned a good living. Emer testified that he trusted Roth. Roth was laid off in 2002. He then became a certified personal trainer but, except for one brief job, has not found full-time employment in that field or any other since 2002.
Roth testified that for financial reasons he currently does not live with his wife, who has multiple sclerosis. He lives with his mother and helps take care of her and his wife. Approximately one year ago, after he filed his Petition for Reinstatement, Roth began volunteering at a retirement home for two hours per week.
Roth presented as character witnesses his son Jason, who is an attorney; his brother-in-law, Emer; Ronald Magnes, a retired Cook County judge; attorneys Morris Beard and Barry Shepard; and friends Lee Gimbel, David Goldberg, and Gerald Lipkin. They testified that Roth accepted responsibility for his crimes and expressed remorse for them.
Roth testified that he recognizes that his misconduct was horrible. He expressed his sorrow to his family, friends and the legal community.
An attorney who petitions for reinstatement bears 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). "The focus is on the petitioner's rehabilitation and character, with rehabilitation being the most important consideration." Martinez-Fraticelli, 221 Ill.2d at 270, 850 N.E.2d 155. A petitioner is rehabilitated when he returns to a beneficial, constructive, and trustworthy role. Martinez-Fraticelli, 221 Ill.2d at 270, 850 N.E.2d 155.
Initially, we address Roth's contention that he was prejudiced by the Hearing Board's decision to allow James Koch to testify that he saw a videotape of Roth snorting a white powder that he believed to be cocaine.
We will not disturb the Hearing Board's ruling on evidentiary issues absent an abuse of discretion. In re Petrulis, 96 CH 546 (Review Board, Dec. 9, 1999) at 14, approved and confirmed, No. M.R. 16556 (June 30, 2000). An abuse of discretion occurs when no reasonable person would agree with the Hearing Board's decision. In re Wilson, 98 CH 69 (March 23, 2001), approved and confirmed, No. M.R. 17518 (Sept. 20, 2001).
In People v. Taylor, 314 Ill.App.3d 658, 732 N.E.2d 120 (3d Dist. 2000), witnesses for the State were allowed to testify about the contents of a missing videotape. The Appellate Court, Third District, determined that the hearsay rule did not preclude such testimony because conduct observed on a videotape was not a statement for hearsay purposes. The court further noted that the best evidence rule would not bar the testimony when the videotape was not missing due to any bad act by the State. The court rejected Taylor's argument that the testimony
was too unreliable to be admissible, reasoning that he had an opportunity to address the reliability of the witnesses' testimony on cross-examination. Taylor, 314 Ill.App.3d at 661-664, 732 N.E.2d 120. Thus, testimony about the contents of a missing videotape may be admitted if the proper foundation is laid.
Roth persists in asserting that the videotape never existed. However, during the reinstatement hearing, the Hearing Board heard evidence from several witnesses pertaining to the existence of the videotape. Koch testified that he received eight videotapes from FBI agent Marie Dyson. Dyson had testified earlier in the proceedings that she later returned the videotapes to Filliponio, who is now deceased.
Koch stated that he observed a videotape that contained images of Roth. He recalled the videotape because he used another portion of it to find a witness in the case. Koch testified that the videotape was not admitted into evidence in Roth's perjury trial because the trial judge granted a motion in limine to exclude it. On cross-examination, Koch admitted that the certified record from the perjury case does not refer to any such motion.
Roth presented the testimony of Terry Chiganos, Koch's supervisor. Chiganos testified that on two or three occasions he viewed a videotape of Filliponio at his residence with several women. Chiganos did not recall seeing Roth on the videotape. He testified that Koch was more familiar with the evidence in the perjury case than he was.
Roth testified that at no time during his perjury trial was he ever advised that the State had a videotape containing images of him.
The Hearing Board Chair ruled that there was a videotape and allowed Koch to testify about what he saw on the videotape. We cannot say that this was an abuse of discretion. The Chair considered the relevant case law and weighed the evidence presented on the issue,
including the testimony elicited by Roth's attorney in an effort to cast doubt on the existence of the videotape. Because the videotape in question no longer exists, the issue comes down to the witnesses' credibility. The Chair found credible the testimony that the State's Attorney's office was in possession of a videotape containing images of Roth, and obviously disagreed with Roth's assertion that Koch's testimony was "a sham." Credibility determinations rest with the Hearing Board. In re Timpone, 208 Ill.2d 371, 383, 804 N.E.2d 560 (2004). The fact that Roth disagrees with the Chair's decision does not provide a persuasive reason to disturb the ruling on this issue.
Moreover, we discern no prejudice to Roth from the admission of Koch's testimony. In its Report and Recommendation, the Hearing Board describes Koch's testimony in its recitation of the evidence but made no finding with respect to the contents of the videotape and did not mention the videotape anywhere in its findings of fact and conclusions of law. Roth acknowledges this, but argues that it is "simply untrue" that Koch's testimony could not have "poisoned" the Hearing Board's decision. We will not leap to such a conclusion absent any basis whatsoever in the record. Rulings on evidentiary questions will not affect the validity of a disciplinary hearing when there is no showing that prejudice resulted from the ruling. In re Damisch, 38 Ill.2d 195, 203, 230 N.E.2d 254 (1967). Roth has not shown any prejudice, so the Hearing Board's ruling stands.
Roth argues next that the Hearing Board erred when it excluded the affidavits of Patrick Tuite, Michael Green, and Sam Adam, all of whom represented Roth's co-defendants in the state perjury case. Roth's attorney in that case, Nicholas DeJohn, is deceased. The affidavits stated that at no time were Tuite, Greene, and Adam informed of or shown any videotape containing images of Roth. The Chair ruled that none of the affidavits were admissible because
they could not be cross-examined. The Chair issued his ruling on June 2, 2008, by telephone conference with counsel for both parties. The Chair set the next hearing date for July 25, 2008, and allowed Roth to list the affiants as witnesses and present them for deposition prior to the hearing date. Roth did not do so.
Roth cites In re Silvern, 92 Ill.2d 188, 441 N.E.2d 64 (1982), for the proposition that letters or affidavits may be admissible in a disciplinary proceeding. The Court in Silvern ruled that the Hearing Board had the discretion to admit letters from various community leaders in Arizona corroborating the respondent's testimony about his contributions to his community. The Court noted that the letters were of minor significance, contained the same information that the respondent testified to, and contained no information that was disputed by the Administrator. Further, the Court stated that the cost of bringing the letters' authors to Illinois to testify would have been prohibitive.
We read Silvern to mean that the Hearing Board may, in its discretion, admit letters or affidavits under certain circumstances. We do not take it to mean that the Hearing Board must do so. Here, the Chair determined that it would be improper to admit the affidavits at issue, as well as an affidavit from Koch that the Administrator sought to admit. This was not an abuse of discretion because, unlike the letters in Silvern, the affidavits that Roth sought to introduce went to the disputed issue of whether the videotape existed. The affidavits were intended to discredit Koch's testimony that parts of the videotape were shown to defense counsel in the perjury trial. It was not an abuse of discretion for the Chair to require such evidence to be presented by a witness who could be cross-examined. Roth chose not to call any of the affiants as witnesses. Although two of them reside out of state, the third, Sam Adam, resides in Illinois.
Roth offers no explanation as to why he did not call Adam or request a continuance if Adam was not immediately available. Under such circumstances, Roth cannot complain of unfairness.
Turning to the merits of the petition for reinstatement, we consider the six factors set forth in Supreme Court Rule 767(f) for determining whether a petitioner is sufficiently rehabilitated and possesses the present good character and current knowledge of the law required for reinstatement. Those factors include:
the nature of the misconduct for which the petitioner was disciplined;
the maturity and experience of the petitioner at the time discipline was imposed;
whether the petitioner recognizes the nature and seriousness of the misconduct;
when applicable, whether petitioner has made restitution;
the petitioner's conduct since discipline was imposed; and
the petitioner's candor and forthrightness in presenting evidence in support of the petition.
There is no presumption in favor of reinstatement. In re Richman, 191 Ill.2d 238, 247-48, 730 N.E.2d 45 (2000). The Hearing Board's factual findings in a reinstatement proceeding will not be reversed unless they are against the manifest weight of the evidence, but its recommendation as to whether a petitioner should be reinstated is advisory. Martinez-Fraticelli, 221 Ill.2d at 271-72, 850 N.E.2d 155. In the matter before us, the Hearing Board found that none of the applicable factors weigh in Roth's favor.
NATURE OF THE MISCONDUCT
The Hearing Board stated that "it is difficult to envision a more serious breach of an attorney's responsibilities" than Roth's bribery of judges. Roth states that he agrees with the Hearing Board's evaluation of the seriousness of his misconduct, but that it should not bar his
reinstatement. Contrary to Roth's characterization of the Hearing Board's analysis, the Hearing Board Report and Recommendation does not state that his misconduct bars reinstatement. It does, however, weigh heavily against him.
Roth's misconduct is similar to misconduct that has weighed against other attorneys in reinstatement proceedings. The petitioner in Richman was convicted of eight counts of mail fraud and two counts of wire fraud in connection with bribing an insurance claims adjuster. The Supreme Court stated that Richman's misconduct "struck at the core of our legal system and was antithetical to our society's most basic principles." Richman, 191 Ill.2d at 245, 730 N.E.2d 45. Similarly, in In Re Newell, 93 CH 253 (Hearing Board April 26, 1994), petition for leave to file exceptions denied, No. M.R. 9168 (Sept. 9, 1995), the Hearing Board found that the petitioner's extortion of a client and bribery of an elected official weighed against reinstatement. It noted that such misconduct was "'particularly reprehensible...since a lawyer has a duty to protect not only his clients, but also the integrity of our legal system.'" Newell, 93 CH 253 at 24, quoting In re Gottlieb, 109 Ill.2d 267, 486 N.E.2d 921, 922 (1985).
Roth was convicted of splitting fees with Judge Olson in exchange for the referral of cases; paying $10,000 to Judge Lane to acquit Filliponio; soliciting a bribe from attorneys in two criminal matters at Judge Lane's request and paying those bribes to Judge Lane; and soliciting $25,000 each from two defendants to pay to Judge Adam Stillo. Roth denied soliciting any money on behalf of Judge Lane or Judge Stillo. The Hearing Board found that Roth committed all of the crimes for which he was convicted. Whether we consider the crimes for which Roth was convicted or the crimes to which he admitted, we come to the same conclusion. Roth was an active participant in corruption that undermined the legal system and the reputation of the legal profession in the most serious way possible.
We recognize that Roth's convictions occurred over 21 years ago. However, "the mere passage of time is not a sufficient ground for reinstatement." In re Thomas, 76 Ill.2d 185, 193, 28 Ill.Dec. 531, 390 N.E.2d 890 (1979). We do not determine that Roth's misconduct bars reinstatement. However, we concur in the Hearing Board's assessment that it weighs against him as it reveals serious flaws in his character.
MATURITY AND EXPERIENCE
An attorney of any age and level of experience must be expected to recognize the impropriety of bribery. Moreover, Roth was an experienced attorney at the time of his misconduct. Prior to his conviction he had practiced for 16 years and worked as a Cook County State's Attorney for 5 of those years. Consequently, this factor also weighs against him.
RECOGNITION OF THE NATURE AND SERIOUSNESS OF MISCONDUCT
Roth described his misconduct as "horrendous, egregious, dishonorable, disgraceful, every other bad thing you can think of." (R. 230). He further stated, "I'm totally ashamed and humiliated by it. It's destroyed my whole life." He expressed his sorrow to his family, friends, "and most of all the legal community." (R. 262). Several friends and family members of Roth's also testified that he is contrite and remorseful.
Despite such evidence, the Hearing Board found that Roth's expressions of remorse were not genuine and he did not fully appreciate the seriousness of his misconduct.
This Board can only read a petitioner's words from a cold record and is not in a position to judge the sincerity or lack thereof behind those words. That role belongs to the Hearing Board. For that reason, the Court has noted that "[g]iven the nature of the evidence which petitioners usually present and the difficulty of accurately assessing the subjective qualities so important in a reinstatement case, this court has ordinarily given considerable weight
to those findings of the hearing panel which represent an evaluation of the witnesses' credibility and the petitioner's candor, forthrightness and sincerity. In re Berkley, 96 Ill. 2d 404, 411, 451 N.E.2d 848 (1983). The Hearing Board listened to Roth testify at length and thus was uniquely positioned to determine whether he recognized the nature and seriousness of his misconduct. See Martinez-Fraticelli, 221 Ill.2d at 276, 850 N.E.2d 155. We recognize that Roth made statements of remorse and acknowledgement of his misconduct but we also must recognize the Hearing Board's evaluation of those statements. In light of our great deference to the Hearing Board on matters of credibility and sincerity, we conclude that the Hearing Board's findings as to this factor were not against the manifest weight of the evidence.
Roth was never ordered to pay restitution. Consequently, this factor is not applicable.
CONDUCT SINCE DISCIPLINE WAS IMPOSED
Roth challenges the Hearing Board's determination that his conduct since he surrendered his license weighs against him. The Hearing Board stated that Roth "has done almost nothing constructive since he was disciplined to show that he is a changed man." Roth, 07 RT 3002, Hearing Board Report and Recommendation at 24.
There is no formula for determining what sort of conduct demonstrates rehabilitation. The Supreme Court has stated that evidence of community, charitable, and religious involvement may be relevant, but that the petitioner's conduct in other areas should also be considered. In re Kuta, 86 Ill.2d 154, 158, 427 N.E.2d 136 (1981). In determining that Kuta, who had accepted a bribe while a Chicago alderman, was rehabilitated, the Court relied on his involvement in his church, his membership in numerous civic and service organizations, and the positions of trust and responsibility that he held in relation to his employment. Similarly, in
Martinez-Fraticelli, 221 Ill.2d at 277, 850 N.E.2d 155, the Court noted with approval that Martinez-Fraticelli volunteered at a hospital and a church after his release from prison and later became a trusted employee of the church while continuing to volunteer there.
After leaving prison, Roth worked for his brother-in-law at Goldsure investments. However, he lost his job there in 2002 and has not worked since. Roth became a certified personal trainer approximately 5 years ago but has not been able to find work in that field. About one year prior to his reinstatement hearing, Roth began volunteering for two hours per week at a retirement home. He also takes care of his elderly mother and his wife, who has multiple sclerosis.
To his credit, Roth has cared for his family and has not engaged in any improper conduct since he surrendered his license. On the other hand, his activities are not on par with those of Kuta, Martinez-Fraticelli, and other petitioners who have been reinstated. He began volunteer work only after he filed his petition for reinstatement. Because of his unemployment for the past 7 years, he has not recently held a position of trust or responsibility within his community. The Hearing Board indicates, and we agree, that in order to demonstrate that he is rehabilitated, Roth must show that he has offset the harm he caused with good work of some sort, in essence repaying society for his misdeeds. He has not made such a showing here. Other petitioners have accomplished this task so we do not think it is too much to ask of Roth, particularly in light of his extremely serious misconduct. Because Roth's activities following disbarment do not yet rise to the level of establishing rehabilitation, we agree with the Hearing Board that this factor weighs against Roth.
CANDOR AND FORTHRIGHTNESS IN PRESENTING EVIDENCE
IN SUPPORT OF THE PETITION
Perhaps most damaging to Roth's request for reinstatement is the Hearing Board's finding that he was not candid or forthright in his testimony. The Hearing Board did not believe "large portions" of Roth's testimony, including his assertions that he did not commit all of the crimes for which he was convicted. Roth, 07 RT 3002, Hearing Board Report and Recommendation at 26. In addition, Roth testified that he lied under oath to the grand jury on three occasions when he admitted to paying or taking bribes. According to Roth, he only admitted those crimes because the U.S. Attorney's office pressured him and threatened to charge him with perjury. Understandably, the Hearing Board did not find credible Roth's testimony that he perjured himself in order to avoid a perjury charge.
Roth faces a extremely difficult burden in asserting that the Hearing Board's credibility findings are against the manifest weight of the evidence. "The Hearing Board is afforded great deference because it is in the best position to observe the witnesses' demeanor and judge their credibility, resolve conflicting testimony, and render other fact-finding judgments." In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). The Hearing Board observed Roth's testimony at length and judged his credibility based on its observations. We defer to its judgment on this issue.
CURRENT KNOWLEDGE OF THE LAW
Roth testified that he read legal materials while in prison and, upon his release, studied advance sheets, Illinois Bar Journals, and summaries of state and federal cases. The Hearing Board found this evidence "vague and inadequate" and noted that Roth has not attended any legal education courses.
Roth cites to a 1989 case , In re Fleischman, 135 Ill.2d 488, 553 N.E.2d 353 (1989), and a 1992 case, In re Parker, 149 Ill.2d 222, 595 N.E.2d 549 (1992), in which similar activities were deemed sufficient. In Martinez-Fraticelli, the petitioner presented evidence that he read court rules and advance sheets and completed legal education courses in ethics and real estate taxation. Martinez-Fraticelli, No. 03 RT 3002, Hearing Board Report and Recommendation at 10-11. There is little guidance in the case law regarding what constitutes sufficient knowledge of the law for reinstatement purposes. Now that all Illinois attorneys are required to complete continuing legal education courses, we question whether an attorney seeking reinstatement should also be required to have completed some legal education courses. Roth's efforts are less than Martinez-Fraticelli's, but similar to Fleischman's and Parker's. Given the absence of clear guidance on this issue, it is difficult to say whether the Hearing Board's finding is against the manifest weight of the evidence. Even if it is, this factor would not affect our ultimate decision as to whether reinstatement is warranted.
Having considered all of the relevant factors, we conclude that the Petitioner-Appellant Bruce Roth has not demonstrated that he is rehabilitated. In the interest of safeguarding the public, maintaining the integrity of the profession, and protecting the administration of justice from reproach, we recommend that the Hearing Board's factual findings and conclusions be affirmed and Bruce Roth's Petition for Reinstatement be denied.
Date Entered: 23 September 2009
William R. Quinlan
1 The spelling of Filliponio's name is not consistent in the record. The Hearing Board and the parties spell it "Filipponio." In the transcript of Filliponio's testimony in Roth's federal trial, however, he spells his name "Filliponio." We will use the spelling given by Filliponio.