Filed March 12, 2009
In re Vincent Andre Stepter
Commission No. 07 RT 3008
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: Request for reinstatement after a reciprocal disbarment for use of illegal substances and for engaging in the unauthorized practice of law.
RULES DISCUSSED: Supreme Court Rule 767.
RECOMMENDATION: Reinstatement with conditions.
DATE OF OPINION: March 12, 2009.
HEARING PANEL: Michael L. Bolos, Yolanda L. Ricks and Albert C. Baldermann.
PETITIONER'S COUNSEL: Anthony B. Ferguson and Oliver Spurlock.
ADMINISTRATOR'S COUNSEL: Lea S. Black and Scott Renfroe.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
VINCENT ANDRE STEPTER,
Supreme Court No. M.R. 21968
Commission No. 07 RT 3008
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing on the Petition for Reinstatement of Vincent Andre Stepter ("Petitioner") was held on November 7, 2008 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a hearing panel consisting of Michael L. Bolos, Chair, Yolanda L. Ricks, and Albert C. Baldermann. Petitioner appeared and was represented by Anthony B. Ferguson and Oliver Spurlock. The Administrator was represented by Lea S. Black and Scott Renfroe.
On December 5, 2002 Petitioner was disbarred in Tennessee for engaging in illegal conduct involving the use of controlled substances and for practicing law while he was under temporary suspension for drug use. On June 24, 2002 the Administrator filed a petition for reciprocal discipline, and on September 19, 2002 the Illinois Supreme Court disbarred Petitioner. In re Stepter, 02 RC 1504, M.R. 18228 (September 19, 2002).
On October 22, 2007 Petitioner filed a Petition for Reinstatement ("Petition") pursuant to Supreme Court Rule 767 and Commission Rule 402. The Petition sets forth information
required by Rule 402, including a listing of Petitioner's residences and employment during the discipline period, his financial assets and obligations, and a summary of the treatment he has received for drug and alcohol abuse. The Petition further states that Petitioner sought reinstatement in Tennessee, was found to be morally fit for practice, and could be reinstated in that state if he complied with certain conditions.
On July 2, 2008 the Administrator filed objections to the Petition. The objections note the serious nature of Petitioner's misconduct, his lack of continuous employment, his failure to comply with Supreme Court Rule 764, and his failure to provide required information.
Petitioner testified on his own behalf, presented five additional witnesses and introduced nine exhibits which were admitted into evidence.
Petitioner is fifty-one years old, divorced since 1991, and the father of two daughters. He testified that, after graduating from the University of Tennessee law school and failing to pass the Tennessee bar exam, he moved to Illinois and in 1985 began working with the United Auto Workers Legal Services Plan in Belvedere. His work at that time was civil in nature, and included probate and real estate matters. (Tr. 109-11).
In 1989 Petitioner returned to Memphis, Tennessee to take advantage of an opportunity to practice criminal law with the Shelby County Public Defender's office. During his four years with that office, he progressed from handling misdemeanor cases to handling felony cases. In late 1992, he began using crack cocaine. He attributed his initial use of the substance to his addictive or co-dependent personality, and to his association with the wrong people. The only
other illegal substance he acknowledged using was marijuana, beginning at the age of fourteen. (Tr. 111-12, 115, 163-64, 197).
In 1993 Petitioner was asked to resign from the Public Defender's office because his use of cocaine was affecting his behavior. He completed a 28-day inpatient substance abuse program that same year, but relapsed about one week after the program ended because he was not "working the program." (Tr. 111-15, 163-65,).
From 1993 until 1998, Petitioner maintained a private practice which focused on criminal law. In 1995 he attended another 28-day inpatient substance abuse program but following completion of the program, he was able to maintain sobriety for only ten days. After two clients filed complaints against him, he attended a drug alcohol rehabilitation program in 1998 but thereafter relapsed again and was not able to meet certain conditions imposed by the Tennessee Board of Professional Responsibility. He ceased practicing in May 1998 when the Tennessee Supreme Court issued an order temporarily suspending him from the practice of law as a result of his drug use. Following a hearing in 1999, a hearing panel recommended that he be suspended for three years. (Tr. 11-18, 166-67).
Petitioner testified he used cocaine from 1992 to 2000, but his heaviest use occurred between 1998 and 2000. In 2000, at a time when he reached bottom, he learned of a program in Illinois that had been helpful to his cousin. Petitioner left Memphis in June 2000 and moved to Chicago before any final order had been entered in his disciplinary matter. At that time he was represented by counsel in Tennessee. Petitioner acknowledged that, although he knew of his temporary suspension when he moved to Illinois, he did not report his suspension to the ARDC because he was not aware of any obligation to do so. (Tr. 115-19, 175).
Upon arriving in Chicago Petitioner enrolled in Teen Challenge of Illinois, a men's spiritual substance abuse treatment program that teaches principles and values to overcome alcohol and drug addictions, and lived in residence from June 8 to September 28, 2000. An affidavit from a staff member of Teen Challenge states that Petitioner successfully completed the first phase of the program, and was released from the program after advising the staff that he would be seeking follow-up treatment through a different program. (Tr. 120-21; Pet. Ex. 5).
Following Petitioner's completion of the first phase of Teen Challenge, he was admitted to the Rush Behavioral Health Center intensive outpatient program on October 9, 2000. From that date until his discharge on November 29, 2000, Petitioner lived at the University of Illinois campus where he attended meetings and classes, and submitted to random drug screens. A "Discharge Summary," signed by both a primary therapist and a physician, states that Petitioner participated in all aspects of the program and all random drug screens obtained during his course of treatment were negative. Upon his release, Petitioner was expected to attend an aftercare program on a weekly basis for a minimum of six months, obtain a sponsor, and attend a minimum of three 12-step meetings each week. (Tr. 122-23; Pet. Ex. 6).
Petitioner attended the Rush Behavioral aftercare program for two years. Letters from two Rush Behavioral program counselors, dated July 12, 2002, described Petitioner as enthusiastic and committed to recovery, and confirmed that he continued to attend the aftercare program long after he was required to do so. A Discharge Summary states that while Petitioner was in the aftercare program, he attended 12-step meetings on a regular basis, obtained a sponsor, became active in a home group, and maintained his abstinence from all mood-altering substances. (Tr. 124; Pet. Ex. 6).
Petitioner testified that, after completing aftercare treatment, he followed the Alcoholics Anonymous ("AA") program that he learned at Rush Behavioral. He initially attended four or five meetings each week and then in 2003, he reduced his attendance to three or four times per week. Currently he attends two meetings per week and speaks to his sponsor two or three times each month. Petitioner stated he has not used legal or illegal narcotics since April 20, 2000 and has not consumed alcohol since 2000. His most recent screening for drug and alcohol use was in May 2007. (Tr. 127-28, 167-69).
With respect to Petitioner's disbarment, Petitioner testified he was notified in the summer of 2002 that Illinois was about to impose reciprocal discipline based on an order of disbarment that had been entered in Tennessee in 2000. At that time he was working at his brother-in-law's law firm, Miller & Ferguson, as an associate attorney with no clients of his own. Upon being so notified, Petitioner stopped working at the law firm. (Tr. 128-29, 179).
Petitioner stated that, until he was disbarred in Illinois, he had not been aware of his disbarment in Tennessee and had not received any notification of that fact from his Tennessee attorney. Upon contacting the clerk of the court in Tennessee, Petitioner learned his attorney had failed to attend a hearing on his behalf and, in fact, his attorney was suspended at the time of the hearing. Petitioner believed he was denied due process because the Tennessee disbarment order had been entered by default. He hired new counsel to attempt to set aside the default judgment and thereafter the Tennessee Board of Professional Responsibility suggested the case be settled with a three and one-half year suspension, retroactive to 2000, if Petitioner could present evidence of treatment and agree to participate in the Tennessee Lawyer's Assistance Program ("TLAP"). Petitioner stated he complied with all requirements and signed the five-year TLAP
agreement, which was then administered by the Illinois LAP. Petitioner eventually received notice that the Board decided not to enter into the settlement agreement. (Tr. 129-38; Pet. Ex. 2).
Petitioner stated that when he was disbarred in Illinois in September 2002, the attorneys at Miller & Ferguson were aware of the Court's order. With respect to the requirement of Supreme Court Rule 764 that Petitioner notify clients or other attorneys of his disbarment, Petitioner stated he had no contact with attorneys outside his firm nor did he have any clients, and therefore he had no persons to notify. He was not aware that he was required to file an affidavit with the Clerk of the Court attesting to that fact. (Tr. 180-81).
Regarding Petitioner's employment since he was disbarred in 2002, he testified he applied for sales positions at Sears, Marshall Fields, the Container Store, Home Depot, and Target, but did not receive any job offers. In 2003 he obtained employment as a substitute teacher with the Chicago Public Schools system, and then was a substitute teacher at the Chicago Choir Academy. He believed that, as a male, he was assigned to the more difficult classrooms where students behaved improperly and were disruptive. After imposing discipline on students and then receiving physical threats from both the students and their parents, he stopped teaching. Petitioner acknowledged that when he was questioned at his deposition about his reasons for leaving employment with the Chicago Public Schools, he did not mention receiving physical threats. He noted that the deposition questions were routine, and no follow-up questions were asked at the time. He denied leaving his employment because of the stress of teaching; rather, he left because of the threats to his physical being. He further stated he did not have a gift or the heart for teaching. He acknowledged that his Petition for Reinstatement does not list the reason he left his employment with the Chicago Public Schools. (Tr. 147-48, 151-53, 182).
Following Petitioner's departure from substitute teaching in 2005, he sought employment at Federal Express, CSX Railroad, City Colleges of Chicago, the Water Reclamation District, and Chicago City Lab. During job interviews, he spoke candidly about the loss of his law license, his past, and his ultimate goal to return to practice. Several employers advised him that he was overeducated and expressed their concern that he would stay with the job for only a short time. He did not receive any job offers. (Tr. 154-55, 183-88).
In 2004 Petitioner and several other individuals became interested in forming a corporation to sell insurance to commercial property owners. Petitioner obtained his producers license to sell casualty and property insurance in Illinois, but ultimately the prospective deal fell through. (Tr. 156-58).
In December 2006 Petitioner obtained employment at Musicmind Records, where he currently assists recording artists in setting up web pages and marketing their records. The record company is owned by Petitioner's brother-in-law, Anthony Ferguson, and is located at the same address as the law firm of Miller & Ferguson. According to Petitioner, the two businesses share a common entrance to the building, but the offices are separate and are designated with different suite numbers. He denied having an office at the law firm, or receiving mail at that address. (Tr. 156, 158, 189-90).
Petitioner stated that between 2002 and 2007, his highest earned income was approximately $9,000 when he was employed as a substitute teacher with the Choir Academy from October 2004 to March 2005. Since his disbarment his income has been supplemented by loans and gifts from his sister, who serves as general counsel for HSBC Corporation. The Petition for Reinstatement reflects that between 2002 and 2006 Petitioner received a total of
$94,000 from his sister. He stated his income for 2008 will be approximately $35,000, and his current debt is approximately $17,000. (Tr. 158, 160-61, 184, 196).
Petitioner testified that, during the time of his disbarment, he has kept abreast of the law by completing continuing legal education classes, and reading the Illinois State Bar Journal, the Northwestern Reporter Series, and the Chicago Daily Law Bulletin. He submitted certificates evidencing his completion of thirteen legal education classes between February 22, 2005 and May 1, 2007, which classes totaled approximately fifty-four hours. Nine of those hours were devoted to legal ethics. He acknowledged that most of the classes were held in 2005, and he did not attend any class in 2008. (Tr. 146-47, 192; Pet. Ex. 9).
Petitioner expressed remorse for his behavior. He believes the AA program, along with the support of his family and friends, will keep him sober and drug free and will allow him to avoid people and places that negatively affect his behavior. He apologized to the hearing panel and to the legal profession for his past conduct, and gave his assurance that he will practice law and conduct himself in such a way that will never reflect negatively on the profession. Petitioner stated that he considers the practice of law to be a great privilege which, although demanding and time-consuming, is not stressful. If reinstated, he plans to practice in Chicago in a setting with other lawyers to whom he can turn for advice. (Tr. 161-63, 195, 198).
Petitioner testified regarding his efforts to be reinstated to the practice of law in Tennessee. He filed a Petition for Reinstatement in January 2006, and then a hearing was held during which he testified on his own behalf; presented nine witnesses, including his sponsor, the executive director of TLAP, two judges and several attorneys; and offered a letter from the director of TLAP confirming Petitioner's compliance with the TLAP monitoring agreement. A hearing panel determined Petitioner was fit to resume practice and recommended his conditional
reinstatement upon successful completion of seven essay questions included within the essay portion of the Tennessee bar exam. Upon being reinstated, Petitioner was to remain in compliance with his TLAP contract, enter into a mentoring agreement with an attorney for three years, practice within a group setting for one year, and pay costs in the amount of $1,383.58. Petitioner stated that the Tennessee Supreme Court accepted the recommendation of the hearing panel. (Tr. 139-44; Pet. Ex. 7, 8).
Petitioner testified he has no intention of returning to Tennessee and therefore does not plan to take the Tennessee bar exam. He stated he submitted his petition to the Tennessee court as part of his effort to make amends for his detrimental conduct and because he felt he would not have been disbarred if he had been represented by counsel. He regarded the Tennessee court's finding that he was fit to resume practice as a personal victory. (Tr. 144-45, 171-74).
Petitioner acknowledged that his Petition for Reinstatement did not specifically list the $1,383.58 owed to the Supreme Court of Tennessee for court costs, but pointed out he was not attempting to hide anything since the costs are set forth in the order of the Tennessee court which is included as an attachment to the Petition. Petitioner stated he paid the court costs in February 2008. (Tr. 158-59, 172, 177).
Dr. Sidney Miller
Dr. Sidney Miller, a psychotherapist whose practice focuses on treating individuals with addiction issues, testified that in October 2005 she was asked by Susan Rigler of the Illinois Lawyers' Assistance Program to assess Petitioner's mental status because Petitioner intended to seek reinstatement to the practice of law. After speaking with Petitioner for one hour and conducting a mental status examination, Dr. Miller concluded that he was sober, functioned within normal limits, and there was no reason for him not to continue with the reinstatement
process. In a letter to Ms. Rigler, dated October 26, 2005, Dr. Miller summarized her meeting with Petitioner and described him as credible and straightforward. She also noted that Petitioner had struggled with employment and had not enjoyed his brief stint as a substitute teacher, due to difficulties in dealing with students who did not display respect. (Tr. 13-22; Pet. Ex. 1)
Kenneth Gurber, an attorney and a member of Alcoholics Anonymous, testified he met Petitioner after being asked by one of the directors of the Illinois Lawyer's Assistance Program to serve as Petitioner's monitor. Petitioner had signed an agreement with TLAP in 2003 which required him to have weekly telephone contact and monthly face-to-face meetings with a monitor for a period of five years. Gurber took on that role and has served in that capacity for approximately five years. (Tr. 24-26, 36; Pet. Ex. 2).
Gurber testified that Petitioner honored his commitment to contact Gurber on a regular basis and, in fact, they typically have spoken more than once each week. Topics of conversation have included Petitioner's personal life, his progression and compliance with a 12-step program, and how he should handle stressful events. Gurber stated that initially Petitioner's maturity left something to be desired, but as time progressed Petitioner has become more mature. He believes Petitioner has always been candid and forthright. (Tr. 26-27, 34, 37-40).
Based on his contact with Petitioner, Gurber formed the opinion that Petitioner is staying sober and is capable of handling the practice of law. Gurber was aware that Petitioner had participated in a treatment program, but feels treatment programs are not a guarantee of sobriety. (Tr. 27-28, 32).
Leon Perry, the senior pastor of Metropolitan Community Church of Chicago, testified that Petitioner has been a member of the church for ten years. Petitioner contributes to the church by attending services regularly, ushering, participating in the singles ministry, and volunteering for tasks as needed. Perry has weekly contact with Petitioner at church. (Tr. 43-45, 49, 52).
Perry stated that Petitioner has been open and forthright about his drug addiction, has participated in support groups to help other persons with similar problems, and has also assisted others in dealing with stress. Based on Perry's observation of and interaction with Petitioner, he believes Petitioner is committed to sobriety and possesses the aptitude and demeanor to be an attorney. Perry stated that Petitioner has a reputation within the church community as being a man of integrity, and has not used drugs during the ten years they have known each other. (Tr. 45-50).
Ruffin Robinson, a registered nurse, testified he has been a member of Alcoholics Anonymous for twenty-one years, and has served as Petitioner's sponsor for eight years. He agreed to sponsor Petitioner because he was impressed with Petitioner's daily attendance at the Rush aftercare program. As a sponsor, Robinson guides individuals through the 12-step program, advises them regarding potential pitfalls, and sets an example of sobriety. Before agreeing to act as Petitioner's sponsor, Robinson advised him he would have to attend the AA meetings that Robinson attends on Saturdays, continue in the outpatient program, have meetings and telephone contact with Robinson two or three times each week, and refrain from becoming involved in a romantic relationship for the first year of sobriety. Robinson stated that Petitioner
not only completed the outpatient program, he attended additional sessions as well and did not become involved in a romantic relationship during his first year of sobriety. (Tr. 54-56, 65-67).
Robinson was aware that Petitioner's periods of unemployment caused him much stress. They discussed Petitioner's continuing efforts to find a job, as well as his frustration at being overqualified for some positions, and the subject was also addressed frequently at the weekly AA meetings. Robinson stated that neither the stress of unemployment nor the stress related to the death of Petitioner's father or the ending of a romantic relationship caused Petitioner to relapse. Robinson stated he has seen many people relapse for lesser reasons. (Tr. 57-58, 61-64, 71).
Based on years of observing alcoholics, Robinson was certain that Petitioner has remained sober. Further, he felt Petitioner has a very good chance of remaining sober in the future because events that should have caused him to relapse have not done so. Robinson believes that Petitioner has an excellent foundation and working knowledge of the 12-step program and that he attends about three AA meetings each week for maintenance purposes. Over the past couple of years Robinson has decreased the frequency of his own meetings with Petitioner, but still sees him at least once or twice each month. In July 2006 when Petitioner was seeking reinstatement of his law license in Tennessee, Robinson wrote a letter in support of his efforts and testified on his behalf. (Tr. 57, 59, 65-68; Pet. Ex. 3).
Dr. Stafford Henry
Dr. Stafford Henry, a forensic psychiatrist, testified that he evaluated Petitioner at the request of the Administrator. As part of the evaluation, Dr. Henry reviewed relevant documents provided to him, interviewed Petitioner, and contacted individuals familiar with Petitioner and his recovery program. Dr. Henry's findings were summarized in a written report that was admitted into evidence. (Tr. 77; Pet. Ex. 4).
Dr. Henry testified that he interviewed Petitioner for approximately three hours in April 2008. During the interview they discussed Petitioner's childhood in Tennessee, which Petitioner described as basically good but with a fair amount of chaos and acrimony stemming from his father's drinking and other behaviors. Despite the acrimony, Petitioner described his relationship with his father as loving and close. (Tr. 78-80, 93-94).
Petitioner reported to Dr. Henry that he had some difficulties with law school but graduated in 1982. After several unsuccessful attempts to pass the Tennessee bar exam, he moved to Illinois where he passed the exam on his first attempt. In 1989 he returned to Tennessee, passed the bar exam, and worked for the Public Defender's office until 1993 at which time he went into private practice. (Tr. 81-82).
Regarding Petitioner's history of substance abuse, Dr. Henry noted in 1993 Petitioner was the subject of an intervention by his co-workers at the Public Defender's office. In 1993 and again in 1995 Petitioner participated in treatment programs, but suffered a relapse within one week of his release from treatment. After attending the Teen Challenge program in 2000, Petitioner successfully completed the chemical dependency program at Rush, as well as an aftercare program which focused on relapse prevention. Dr. Henry noted that Petitioner remained in aftercare longer than the time required. Two individuals contacted by Dr. Henry corroborated Petitioner's self-report of solid recovery without relapse. Dr. Henry noted there was no evidence that Petitioner had used mood altering substances since 2000, and he had not received any data that questioned Petitioner's current sobriety. (Tr. 86-88, 92-95, 99, 105; Pet. Ex. 4).
Concerning Petitioner's means of support, Dr. Henry reported that Petitioner lives alone and has benefitted from financial contributions from his family. He believed Petitioner's highest
earned income since 2002 was between $5,000 and $5,800, and resulted from his work as a substitute teacher. Regarding the reason Petitioner stopped serving as a substitute teacher, Dr. Henry reported that Petitioner had found working with urban youth to be challenging and not commensurate with his skills. Dr. Henry could think of no medical reason to account for Petitioner's lack of success in obtaining employment. (Tr. 96-97).
At the time Dr. Henry interviewed Petitioner, Petitioner had been working for a record company for one year, attempting to enhance the exposure of musicians who were under contract with the company. Petitioner was also very involved in the 12-step community, in his church, and with his family. Dr. Henry felt that Petitioner was candid and forthright in his responses. (Tr. 83-84, 102).
After reviewing all relevant data, Dr. Henry diagnosed Petitioner as having a cocaine, cannabis and alcohol dependency in "sustained remission." He was of the opinion that Petitioner is currently in solid recovery from his chemical dependency, and that no clinical or mental health reasons exist which would appear to affect or interfere with Petitioner's ability to adhere to the Rules of Professional Conduct. (Tr. 91, 107; Pet. Ex. 4).
Dr. Henry recommended that, if Petitioner were successful in being reinstated to the practice of law, he should continue attending AA meetings, maintain contact with his sponsor, and remain under the auspices of LAP for a period of at least one year. Dr. Henry felt that the first year of practice is likely to be very challenging and further, the highest risk for relapse is within one year of a major life change. Given those circumstances, he believed Petitioner would benefit from the continued support of LAP. (Tr. 101-02; Pet. Ex. 4).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The purpose of a reinstatement proceeding is the same as that of an attorney disciplinary proceeding, that is, to safeguard the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Rothenberg, 108 Ill.2d 313, 484 N.E.2d 289 (1985). A petitioning attorney seeking reinstatement to the practice of law has the burden of proving by clear and convincing evidence that he should be reinstated. In re Richman, 191 Ill.2d 238, 730 N.E.2d 45 (2000); In re Parker, 149 Ill.2d 222, 595 N.E.2d 352 (1990). In considering a petition for reinstatement, the focus is on the attorney's rehabilitation, present good character and current knowledge of the law, with rehabilitation being the most important consideration. In re Martinez-Fraticelli, 221 Ill.2d 255, 850 N.E.2d 155 (2006); In re Fleischman, 135 Ill.2d 488, 533 N.E.2d 352 (1990). Rehabilitation has been defined as one's return to a "beneficial, constructive and trustworthy role." In re Wigoda, 77 Ill.2d 154, 395 N.E.2d 571 (1979).
Illinois Supreme Court Rule 767(f) sets forth the following factors to be considered in determining whether reinstatement is appropriate:
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.
Keeping in mind the foregoing factors and the principles articulated by the Court, we now examine the evidence before us to determine whether Petitioner has sufficiently established his rehabilitation, good character and current knowledge of the law.
Nature of Misconduct
In determining whether reinstatement is appropriate, the severity of the misconduct which led to the attorney's discipline deserves careful review. Indeed, the Supreme Court has advised that the significance of this factor cannot be minimized by subsequent exemplary conduct. In re Richman, 191 Ill.2d 238, 740 N.E.2d 45 (2000).
Petitioner was disbarred for engaging in illegal conduct involving the use of controlled substances, engaging in the unauthorized practice of law by acting as a clerk for another lawyer while he was under temporary suspension, and for taking money from a client for future legal services without informing the client that he had been suspended. Both the Administrator and Petitioner focus on the illegal drug use as being the primary basis for his discipline.
Petitioner does not deny that his use of cocaine during the better part of the 1990s was a serious transgression, or that his conduct was a violation of the ethical rules. While Petitioner was not convicted of any offense, we do not view the absence of a criminal prosecution and conviction, in the face of admitted illegal conduct, as particularly significant. However, we do attach some significance to the fact that Petitioner's drug use did not involve any dishonesty on his part, and apparently did not result in any permanent harm to his clients.
While the nature of Petitioner's misconduct was undoubtedly serious, we take issue with the Administrator's assertion that the misconduct was more egregious than that involved in In re Dalton, 05 RT 3002, M.R. 20096 (November 17, 2006). In Dalton the attorney was disbarred after being convicted and sentenced to twenty-six months in federal prison for possession of marijuana with intent to distribute, and for manufacture of marijuana. The evidence showed that the attorney possessed and used illegal drugs his entire adult life, including six years when he was a sitting judge, sold marijuana on numerous occasions to an attorney who had cases before
him, and grew marijuana plants in his basement. Compounding the misconduct even further was the fact the attorney had lied on his application for judicial appointment. All of the foregoing circumstances led the Hearing Board to conclude that the seriousness of Dalton's misconduct weighed heavily against him, and that factor, combined with other factors that were unfavorable to Dalton, led the Hearing Board to recommend against reinstatement. The Supreme Court approved the Hearing Board's report and denied reinstatement.
In contrast to the result in Dalton, we consider In re Parker, 149 Ill.2d 222, 595 N.E.2d 549 (1992), in which the attorney was similarly disbarred after being convicted of conspiracy to distribute marijuana. The evidence in that case established that the attorney had also used and distributed cocaine. In discussing the nature of Parker's misconduct, the Supreme Court noted
"[the misconduct] was not one involving dishonesty or deceit, which brings the legal profession into a particularly bad light. No client's interest was lost here, nor was the trustworthiness of the legal profession brought into question due to petitioner's activities. While petitioner's use of marijuana as an assistant State's Attorney is an aggravating factor, we do not believe that petitioner's involvement with drugs was so serious as to forever bar her from the practice of law, or to prevent her from being reinstated at the present time."
The Supreme Court approved Parker's petition for reinstatement. See also In re Wood, 07 RT 3004, M.R. 21816 (September 16, 2008) (attorney reinstated after being disbarred, on consent, for using and distributing cocaine).
Petitioner's conduct in the present case was less egregious than that in Parker, since he was not serving as a government official at the time he engaged in drug use nor did he distribute any illegal substances. Therefore, in our opinion Petitioner's long-time use of cocaine, while very serious, does not pose an insurmountable impediment to reinstatement.
As for Petitioner's unauthorized practice of law after being temporarily suspended and his acceptance of a legal fee without informing a client of his suspension, that conduct appears to be an isolated incident which, by itself, would have warranted only a moderate sanction. Even
after considering that additional misconduct, we conclude that the nature of the acts which gave rise to Petitioner's discipline does not preclude reinstatement.
Maturity and Experience of Petitioner
At the time Petitioner first began using crack cocaine, he was in his mid-thirties and had been working as an attorney for approximately seven years. We believe he was sufficiently mature and experienced to recognize that his use of cocaine was wrong. We also recognize that attorneys who have committed inherently dishonest acts and were more seasoned than Petitioner at the time of their misconduct, have been reinstated to the practice of law. See In re Fleischman, 135 Ill.2d 488, 553 N.E.2d 352 (1990); In re Silvern, 92 Ill.2d 188, 441 N.E.2d 64 (1982).
Recognition of Nature and Seriousness of Misconduct
The third factor to be considered is whether Petitioner recognizes the nature and seriousness of the misconduct. Expressions of remorse and acknowledgments of wrongdoing are considered to indicate a recognition of misconduct. See In re Parker, 149 Ill.2d 222, 595 N.E.2d 549 (1992); In re Livingston, 133 Ill.2d 140, 549 N.E.2d 342 (1989). Attempts to rationalize or justify misconduct are signs that an attorney does not appreciate the nature or seriousness of his misconduct. See In re Livingston, 133 Ill.2d 140, 549 N.E.2d 342 (1989).
Petitioner has taken full responsibility for his misconduct and acknowledged that his behavior stemmed from his own addictive personality and his tendency to associate with the wrong people. He blamed no one but himself for his actions, and expressed his regret for having brought disgrace to the legal profession.
Petitioner's admissions, his humble deportment during the hearing, and the time and energy he has invested to overcome his addictions and maintain his sobriety demonstrate to us
that he understands the severity of his misconduct, and is genuinely contrite. We find therefore that Petitioner recognizes the nature and seriousness of his misconduct.
Restitution was not raised as an issue in these proceedings.
Conduct Since Discipline was Imposed
After Petitioner was disciplined by the Tennessee court, he successfully completed an intensive in-patient drug rehabilitation program, as well as an aftercare program. The evidence established that he has abstained from drug and alcohol use since 2000, and at the present time attends 12-step meetings on a regular basis and participates in the LAP program. Witnesses who have had significant contact with Petitioner and are aware of his recovery efforts testified he is committed to sobriety. Dr. Stafford Henry believed Petitioner's addictions problems are in sustained remission and there is no mental health reason that would preclude Petitioner from consistently adhering to the Rules of Professional Conduct. No evidence was presented to the contrary.
Petitioner has acknowledged, and the Administrator emphasizes, that he has experienced periods of unemployment since his disbarment. Petitioner detailed the many applications he submitted for employment, many of which received no response. Petitioner's sponsor confirmed Petitioner's efforts and desire to obtain a job, as well his frustration and disappointment at finding himself without work.
While it is unfortunate that Petitioner was not able to demonstrate consistent employment, this is not a case in which an attorney has sat on his hands and made no effort to find employment, nor was Petitioner's job search limited only to positions commensurate with his level of education. Rather, his testimony indicated his willingness to work in retail positions
which would most likely pay only a minimum wage. Given the loss of his law license and his past history, which he disclosed to potential employers, we can readily understand that his efforts to seek employment were hindered.
From approximately 2003 to 2005 Petitioner was employed as a substitute teacher. Although the Administrator makes much of the fact that he quit that position, we accept his testimony that he was not comfortable with the problematic behavior exhibited by the students or the threats he received when he attempted to discipline them. We do not equate the skills required for handling unruly and threatening students with those necessary to practice law, and likewise do not view the stress or frustrations which are specific to the classroom as equivalent to the demands of a law practice. We agree with Petitioner that some individuals have a gift for teaching and interacting with children, while other individuals find that type of work to be outside their comfort zone.
We distinguish this case from In re Roberts, 92 CH 192, M.R. 8322 (September 23, 1994), cited by the Administrator, wherein the attorney was denied reinstatement, in part, because the evidence showed he had been unable to handle the stress of working as a hotel desk clerk. In that case the attorney's inability to cope with stress was particularly troubling because he had undergone psychiatric treatment for depression and anxiety, and was taking prescribed medication for those conditions. No such conditions exist in the present case.
At the time of hearing Petitioner had been employed by his brother-in-law's record company for approximately two years. Given his current stable employment situation and the reasons for his past difficulties in securing or staying with a job, which we regard as plausible, we do not consider Petitioner's past employment history as negatively impacting his current rehabilitation.
The Administrator also faults Petitioner for failing to comply with Supreme Court Rule 764 upon his disbarment. That Rule requires an attorney to provide notification of his discipline to his clients, the courts in which he has cases pending, and other attorneys with whom he is associated or has cases that are active. Further, Rule 764(g) requires the attorney to file an affidavit with the Clerk of the Supreme Court setting forth the actions he has taken to comply with the Rule, his current contact information, and the identity of other jurisdictions in which he was admitted to practice law. Petitioner, who was employed as an attorney with Miller & Ferguson at the time of his disbarment, acknowledged that he sent no notifications of his disbarment, but explained that he had no clients and no pending cases at the time he was disciplined, and the attorneys at Miller & Ferguson were already aware of his disbarment. He did not file an affidavit with the Clerk of the Court stating those facts because he was not aware that he had to do so.
A similar issue arose in In re Parker, supra, where the attorney also failed to comply with Supreme Court Rule 764. The evidence in that case established that the attorney had no clients to notify and she believed her lawyer had filed the requisite affidavit. Under the circumstances, the attorney's failure to comply with the rule was not detrimental to her reinstatement. See also In re Scroggins, 94 SH 638, M.R. 10561 (September 24, 1996) (attorney reinstated where Hearing and Review Boards found failure to comply with Rule 764(b) was not an intentional effort to circumvent the rule, but was inadvertent).
We do not believe Petitioner's failure to file an affidavit evidenced any intent to disregard the rules or to withhold information from the Court. Petitioner was under the mistaken impression that since he had no clients or pending cases, he had no action to report to the Supreme Court. Although a thorough reading of the Rule would have informed him that the
affidavit required information independent of his compliance with the notification provisions, we do not view his unintentional error as being a bar to his reinstatement.
Overall, we believe Petitioner's conduct since discipline was imposed has been commendable and weighs in favor of his reinstatement.
Candor and Forthrightness in Presenting Petition
With respect to Petitioner's candor and forthrightness in presenting evidence in support of the Petition, we believe he spoke openly and honestly about his addictions, his attempts to overcome his past, his frustrations at not being able to find employment, and his desire to maintain his current recovery. Contrary to the Administrator's assertions, we do not believe his credibility was harmed by the fact that he gave a more expansive answer at hearing to a question regarding his employment than he had given during his deposition testimony. When asked at his deposition why he stopped teaching, Petitioner replied "I found the teaching profession I did not like and I just did not want to continue." Although inquiry could have been made as to what it was about teaching that Petitioner did not like, no further questions were asked concerning his reasons for leaving that employment. When Petitioner was asked at hearing why he left the public school system, he described the discipline problems he encountered and the threats he received from the students and their parents. Clearly Petitioner's later answer was more expansive than his deposition testimony, but the two answers were not inconsistent, nor does the more detailed response convey to us a previous intent to withhold information. We believe Petitioner would have provided a more detailed response at his deposition had he been asked to do so.
The Administrator has pointed out several deficiencies in the Petition itself, one of which was Petitioner's failure to state his reason for leaving each of his employment positions, as
required by Commission Rule 402(5). While Petitioner should have provided that information in his Petition, we note that he provided the complete name and address of each school, the period of his employment, and the names of his supervisors.
The Administrator argues that Petitioner failed to list, as required by Commission Rule 402(8), a financial obligation in the amount of $1,383.50 owed to the Tennessee Board of Professional Responsibility for the costs associated with Petitioner's disciplinary matter in that state. Petitioner pointed out that the costs were set forth in an order attached to his Petition, and therefore the obligation was not concealed from the Administrator.1 The evidence reflected that the Court order imposing costs was entered on October 3, 2007, and Petitioner made full payment within four months of that order.
Finally, the Administrator points out that the Petition lists the address of Petitioner's current employer, Musicmind Records, as 1327 W. Washington, Suite 105. During Petitioner's testimony, however, he gave the address as 1327 W. Washington, Suite B, and further testified that the Miller & Ferguson law firm was located at 1327 W. Washington, Suite A. While the Administrator argued that Petitioner attempted to conceal the fact that he has maintained a presence in an office where the practice of law is being conducted, in violation of Supreme Court Rule 764(b), we do not believe that contention is supported by the evidence. Petitioner testified that the two offices are physically separate entities which share a common front door only and further testified he does not have a personal office at Miller & Ferguson and does not receive mail at that office.
In In re Parker, supra, the petitioning attorney failed to list all of her income and financial assistance on her petition, failed to list several positions of employment, and did not provide a state income tax return for one year. The Court did not view the omissions as displaying a lack
of candor or intent to deceive; rather, the Court viewed the omissions as examples of how questions on a petition may be given different interpretations, or as innocent oversights on the part of the petitioner. In any event, the Court felt the omissions were not significant in that they would not have been harmful to the petitioner in her reinstatement proceedings, and were not a willful attempt to conceal anything.
Like the Court in Parker, we believe Petitioner's omissions were nothing more than oversights on his part, or the part of his attorney, rather than a calculated attempt to conceal information. Further, to the extent any confusion existed, we believe the issues were addressed at the hearing and clarified to our satisfaction by Petitioner.
Consideration of the foregoing factors is intended to aid in our determination of Petitioner's rehabilitation, present good character and current knowledge of the law. Rehabilitation is "a matter of one's ‘return' to a beneficial, constructive and trustworthy role." In re Wigoda, 77 Ill.2d 155, 395 N.E.2d 571, 574 (1979).
While we believe that Petitioner engaged in serious misconduct and that his behavior cannot be attributed to immaturity or lack of experience, the evidence showed that he has acknowledged his addictions, has completed intensive recovery programs, is committed to maintaining his recovery and leading an honorable and productive life, fully understands the need for continued participation in 12-step programs, and has held gainful employment for the past two years. Witnesses who testified on behalf of Petitioner were steadfast in their belief that he is candid, forthright, and committed to sobriety. The Administrator did not present any witnesses who disagreed with those assessments.
In 2007 the Tennessee Supreme Court determined that Petitioner has the moral qualifications required for admission to practice law in that state. We agree with that assessment and find that Petitioner has clearly and convincingly established his rehabilitation, good character and "return to a beneficial, constructive and trustworthy role."
We must also determine whether Petitioner has demonstrated his current knowledge of the law. Petitioner has kept abreast of the law by completing thirteen continuing legal education classes, including nine hours in the area of professional ethics, and by reading bar journals, cases, and a daily legal newspaper. Those efforts appear to be equivalent to that of other attorneys who have been reinstated. See e.g. In re Martinez-Fraticelli, 221 Ill.2d 255, 270, 850 N.E.2d 155 (2006); In re Jones, 95 SH 8, M.R. 10887 (November 26, 1996); In re Fleischman, 135 Ill.2d 488, 553 N.E.2d 352 (1990). We do note, with respect to the fifty-four hours of legal education classes Petitioner completed between February 2005 and May 2007, that nearly all the classes were completed in 2005. We further note that in his Petition and his testimony, Petitioner stated he has been reading the "Northern" Reporter or "Northwestern" Reporter series although, as he surely knows, Illinois decisions are reported in the Northeastern Reporter. While we assume he meant to refer to the latter series and do not view the mistake as significant, we are somewhat bothered at the miscue and the fact that the inaccuracy was repeated.
Having found that Petitioner has demonstrated his rehabilitation, we believe he should be reinstated to the practice of law. For Petitioner's benefit, as well as that of the public, however, we are of the opinion that his reinstatement should be conditioned on several factors. First, we wish to ensure that his knowledge of the law is as complete and up-to-date as it can be when he resumes his practice. Although we believe Petitioner has been dutiful in his efforts to keep abreast of the law, we naturally have some concerns about reinstating an attorney who has not
practiced law or been in a law office setting for more than six years. To that end, he should be held to the minimum continuing legal education (MCLE) requirements that were in place during his disbarment. As a further safeguard, we recommend that he enter into a mentoring relationship with another attorney who can provide guidance to him in his practice. Lastly, we concur in Dr. Henry's recommendation that Petitioner should continue under the auspices of the Illinois Lawyer's Assistance Program for the first year of his practice. We heard testimony that a relapse is most likely to occur within one year of a major life change and, although this Petitioner has weathered several significant events over the past several years without a relapse, we believe caution dictates his continued participation in that program.
We are not without precedent in recommending that Petitioner be reinstated with conditions. See In re Wood, 07 RT 3004, M.R. 21816 (September 16, 2008) (attorney required to attend two 12-step meetings per week); In re Kloak, 95 CH 448, M.R. 11575 (October 19, 1999) (mentoring requirement and completion of management practices seminar); In re Oliver, 95 CH 681, M.R. 11753 (September 25, 1998) (attorney required to complete bar review program); In re Braner, 93 SH 482, M.R. 9547 (January 25, 1995) (mentoring requirement and restitution).
Accordingly, we recommend that Petitioner be reinstated to the practice of law, subject to the following conditions:
1. Prior to being reinstated, Petitioner shall demonstrate that he has complied with all Illinois MCLE requirements in place during his period of disbarment:
2. During his first year of practice, Petitioner shall be mentored by an attorney approved by the Administrator. During the mentoring period:
a. Petitioner shall report to the mentoring attorney at least once a week concerning his practice;
b. The mentoring attorney shall meet with the Administrator and work out a mentoring plan which will require a report in writing to
the Administrator at least once every three months concerning Petitioner's practice;
c. Petitioner and the mentoring attorney shall report to the Administrator any violation of the Illinois Rules of Professional Conduct which Petitioner engages in during the mentoring period.
3. Petitioner shall continue attending 12-step meetings and remain under the auspices of LAP for a period of one year following his reinstatement.
Date Entered: March 12, 2009
|Michael L. Bolos, Chair, Yolanda L. Ricks and Albert C. Baldermann, hearing panel members.|
1 For the sake of completeness we note that the costs were indeed set forth in two documents that were attached to the Petition. An "Order of Enforcement" signed by Tennessee Disciplinary Counsel, Petitioner's attorney, and a representative of TLAP, and a "Memorandum" signed by Tennessee Disciplinary Counsel, both condition his reinstatement upon his payment of costs. The actual order signed and entered by the Court on October 3, 2007, which was not attached to the Petition but was submitted as an exhibit at hearing, directs Petitioner to pay the costs and does not tie the payment to his reinstatement.