Filed July 8, 2009
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
|Supreme Court No. M.R. 21969
Commission No. 07 RT 3009
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing on the Petition for Reinstatement of Cynthia Sutherin ("Petitioner") was held on February 26 and 27, 2009 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a hearing panel consisting of Lawrence S. Beaumont, Chair, Heather A. McPherson, and Joseph J. Calvanico. Petitioner appeared and was represented by Erik D. Gruber and Jesse G. Shallcross. The Administrator was represented by Marcia Topper Wolf.
On September 20, 2006 the Illinois Supreme Court suspended Petitioner for one year and until further order of the Court for engaging in dishonest conduct and conduct tending to bring the legal profession into disrepute. In re Sutherin, 03 CH 61, M.R. 20636 (Sept. 20, 2006).
On October 22, 2007 Petitioner filed a Petition for Reinstatement ("Petition") pursuant to Supreme Court Rule 767. The Petition includes a listing of Petitioner's residences and employment during the discipline period, the civil and criminal actions in which she has been a party, her financial assets and obligations, a summary of the mental health treatment she has
received during the period of discipline, and the facts upon which she relies to establish her fitness to resume the practice of law.
On July 15, 2008 the Administrator filed objections to the Petition. The objections note the serious nature of Petitioner's dishonest conduct, her lack of restitution, and her inability to establish that she has been rehabilitated.
Petitioner testified on her own behalf, presented seven witnesses, and introduced eight exhibits which were admitted into evidence. The Administrator presented four witnesses and introduced twenty-five exhibits.
Petitioner testified she is fifty-two years old, divorced, has three adult children. Her oldest son suffers from mental illness. During the time Petitioner was raising her children, her volunteer activities included serving as president of the Elgin Continental Little League, troop leader and cookie chairman for the Girl Scouts, den leader for the cub scouts, president of the St. Lawrence Catholic Grade School parent-teacher organization, and secretary for the Human Relations Commission for the City of Elgin. (Tr. 31, 35-39, 50).
At age thirty-eight Petitioner graduated from Loyola University and then attended Northern Illinois University law school. Upon graduating in 1998, she became employed by the law firm of Zimmerman, Smith and Kostelny where she worked on family law and municipal matters. In July 2000 she joined the Kane County Public Defender's office and worked there until February 1, 2002. She was hired at a salary of between $33,000 and $35,000. As an assistant public defender she handled misdemeanor and juvenile matters. (Tr. 35, 44, 47-49, 76).
Petitioner stated she worked approximately fifty-five hours per week at the public defender's office. During that time her son's mental problems flared up and he required a great deal of her emotional energy. In addition she was responsible for the care of her grandmother, who was blind and in a wheelchair. She also discovered around that time that her ex-husband had abused her daughter. (Tr. 50-51).
Petitioner testified that in 2001 she spoke to two other attorneys in her office, Peter Gruber and Gregory Brown, about forming a law firm. Thereafter, she met with three additional attorneys from the public defender's office, Myrrha Guzman, Jeanne Meyer and Kimberly Small, and an attorney from the Kane County State's Attorney's office, Christie Krupp, and offered each of them positions as associates in the firm. Petitioner represented to the latter attorneys that she, Gruber, and Brown were forming a law firm, that they had municipal contracts with the City of Elgin, Dundee and Carpentersville and they would be handling closings for a new housing development. She advised the attorneys that she would be funding the firm with her personal wealth which derived from property ownership, an interest in a shopping mall, and gravel rights. In fact, her representations regarding the work to be done by the firm and her personal wealth were completely untrue. (Tr. 53-64).
Petitioner acknowledged that in support of her scheme she created, or assisted in creating, and disseminated articles of incorporation for her intended law firm. Further, she identified a deposit slip reflecting a deposit of $5,200,000 into an account at Bank One, and stated that the handwriting on the deposit slip was hers. She did not recall creating the deposit slip, but has no reason to believe she did not create it. She stated she does not recall all of her statements and actions from 2001 and early 2002. (Tr. 103-04, 121-22; Adm. Exs. 7-10).
Petitioner testified she looked at several buildings in Kane County to house her purported law firm, and worked with a real estate agent. She entered into contracts for several specific properties, but then reneged on her promise to purchase. In one instance she forfeited $5,000 in earnest money. (Tr. 84-85, 125-26; Adm. Exs. 21, 22).
Petitioner acknowledged representing to the prospective members of her law firm that she would be establishing a foundation known as Cindy's Wishful Thinkings, Incorporated. Although the foundation was entirely fictitious, she created or participated in the creation of various documents for the foundation, including bylaws and resolutions, and compiled a list of assets, the value of which was represented to be over $41 million, that purportedly belonged to the foundation. Petitioner further represented to the attorneys that she intended to form a not-for-profit-organization known as the Monica Gifford Foundation to assist at-risk youth in Kane County, and acknowledged creating bylaws for that foundation. The foundation was never established because Petitioner did not have the financial means to fund it. Petitioner stated that her discussions with the other attorneys were not conducted in secret, and their intentions were well known within the office. (Tr. 60, 62, 73, 122-25; Adm. Exs.11-18).
In 2001 Petitioner also told various people that she was suffering from leukemia and undergoing chemotherapy. She acknowledged that those statements were untrue and stated she regrets making the statements. Petitioner acknowledged that all of her false statements and documents were dishonest, wrong, egregious, and horrible. She denied that she knew at the time of her misconduct that she was engaging in deceitful behavior. (Tr. 65, 81, 88, 101-02, 116, 120-21, 137).
Petitioner testified regarding the effect of her actions on attorneys Gruber, Guzman, Meyer, Small and Krupp. She had guaranteed them a $75,000 salary, medical and retirement
benefits, and an automobile or payment of school loans, and on the basis of those representations, the attorneys tendered their resignations to work at Petitioner's firm. At the time of her offers to the attorneys, Petitioner did not have the ability to pay the salaries. Because Petitioner's representations were all false, the attorneys were out of work until they found other positions. Peter Gruber had actually gone shopping for an automobile and chose one. Petitioner recognizes that she caused financial harm to the attorneys she recruited, as well as harm to their reputations. She stated she is very sorry for her actions and is haunted by the effects of her conduct. (Tr. 65-66, 69, 71, 76-77, 80-82, 87, 117).
Petitioner testified that Gregory Brown had initially accepted her offer, but then changed his mind. He ceased to be involved with any plans for the law firm, and did not quit his job with the public defender's office. Petitioner also had approached Brown's wife, who is a social worker, about working for Petitioner's foundation. Petitioner admitted she had not been truthful to Brown's wife because the foundation had no funds to operate. (Tr. 78-80).
Petitioner acknowledged that she harmed the legal profession because her actions became the subject of gossip and news articles. Further, the public defender's office was harmed because it lost a core group of attorneys which most likely caused a disruption in the work flow of the office. Petitioner also caused harm to the realtor who spent nearly two months showing her properties and to the sellers who entered into contracts for their properties. Finally, the automobile dealers who ordered cars for the attorneys were harmed because they experienced difficulty in selling one or two of the cars that had been ordered with upgrades. Petitioner negotiated a resolution of their loss which resulted in her payment of $2,500 for the upgrades. (Tr. 82-83, 86, 88-89).
Petitioner testified she gave notice six weeks before leaving the public defender's office in 2002. After resigning, she was unemployed for approximately four or five months. She then worked for a temporary staffing agency and was assigned to work as an attorney for the Fisher and Fisher law firm (the "Fisher firm"). After three months, she was offered a position of full time employment with that firm and continued to work there as a mortgage foreclosure and litigation attorney until she was suspended by the Supreme Court in 2006. She discussed the ARDC proceedings with the Fisher attorneys and gave them a copy of the complaint on the day she received it. At that time she was working between 60 and 65 hours per week. (Tr. 89, 91-94, 132-33).
Petitioner stated that the Supreme Court did not order restitution as part of its discipline order and she has not made any payments to the attorneys or to the real estate agent. Several of the attorneys filed a civil action against her seeking five years of back pay and a recovery of several million dollars but after Petitioner filed for bankruptcy, they voluntarily dismissed the action. Petitioner stated she has not personally apologized to the attorneys she harmed, but did apologize during her testimony at her disciplinary hearing. She prefers to wait until the proceedings are over before offering a direct apology because she feels the apology would be more sincere if it were not mandated. (Tr. 90-91, 118-19, 131-32; Adm. Ex. 23).
Petitioner currently works for First Financial Title Company as a senior title examiner, 94 which does not involve the practice of law. The title company is owned by the four principal attorneys at the Fisher firm. Petitioner has been told that if she were reinstated, she could resume her position at the Fisher firm. (Tr. 95-96).
Petitioner stated that since 2002 she has not made any untruthful or fantastical statements of the sort that caused her to be suspended. She acknowledged that while she was working at the
Fisher firm she added notes to a client computer file without advising anyone. When her supervisor questioned her about it, she responded with a flippant comment that she had had a "break with reality." The supervisor informed her that she had not followed the correct procedure and that she would be terminated if she did not follow the procedure in the future. Petitioner stated that no suggestion was ever made that her notes were not accurate. (Tr. 97, 129-30, 135, 138).
Petitioner believes her dishonest statements were made at a time when she was experiencing extraordinary stressors that caused a breakdown in her personality. To prevent any recurrences of such conduct, she has sought the assistance of a psychologist, Dr. Hector Machabanski, who she has seen every week or every other week since 2003. She has learned how to recognize stressors and how to use both internal and external mechanisms to cope with the stressors. She uses a self-checking process, has read research and data to understand her mental health issues, and has asked other individuals to alert her to any bizarre behavior. (Tr. 101, 104-08).
Petitioner has also been seeing a psychiatrist, Dr. Aftab Poshni, on a continuous basis since 2003. Dr. Poshni prescribed Wellbutrin and Gabitril and Petitioner has been taking those medications, or the generic equivalent, since 2004. (Tr. 109-10; Pet. Ex. 5).
Petitioner stated that she intends to be proactive toward her treatment and will continue to see both Dr. Machabanski and Dr. Poshni for as long as they believe it is necessary. She denied that she will ever engage in conduct similar to that which caused her suspension. (Tr. 112, 115).
Petitioner identified certificates from four continuing legal education courses she recently attended. She earned 24 credits, which is enough to comply with the Supreme Court rules regarding minimum continuing education requirements. Petitioner stated that, due to her
workload, she has not engaged in any charitable work since sometime in the mid-1990s. (Tr. 114-16, 136; Pet. Ex. 1-4).
Gregory Brown, an attorney with the Kane County Public Defender's office since 1994, testified he and Petitioner became friends when she worked for the Kane County Public Defender. Brown recalled that in mid to late August 2001, Petitioner initiated a conversation about forming a law firm with Brown and Peter Gruber, another attorney with the Kane County Public Defender's office. Petitioner represented she would fund the firm with $1.5 million from the sale of land, and potential clients would include a real estate developer and local municipalities with which she had contacts. In September and October steps were taken to form the law firm. Brown accompanied Petitioner to look at office space and they had discussions concerning medical insurance and automobiles for the attorneys. Brown shopped for an automobile but did not choose one. (Tr. 285-91).
Petitioner further indicated to Brown that she wanted to start a not-for-profit foundation for juveniles and made an offer to Brown's wife, who was a social worker, to become the executive director of the foundation. Brown stated that his wife conducted research regarding the formation of the foundation and the establishment of initial grants, and accompanied Petitioner to look at a potential site for the foundation. His wife considered leaving her employment to accept a position with Petitioner's foundation. (Tr. 288, 292-93).
In late October and November of 2001, Brown was having doubts about Petitioner's plans to form a firm. He noted that no progress was being made in the formation of the firm, he learned Petitioner was suffering from leukemia, and the offer seemed too good to be true. At that time he ceased to be involved with the plans. (Tr. 293-94, 300, 307-08).
Brown remained at the public defender's office after Petitioner and four other full-time attorneys resigned to be a part of Petitioner's firm. Brown stated that typically only two or three attorneys leave the office each year. After the attorneys departed, other attorneys had to cover their caseloads, which caused a disruption to the office and improper management of the files. Brown estimated that the vacated positions were filled within six months. (Tr. 295-96, 304-06).
Brown stated he did not suffer any financial harm as a result of his involvement with Petitioner's plans for a firm. He has had no contact with Petitioner since she resigned. (Tr. 297, 303).
Christie Krupp, an attorney, testified she is currently self-employed as a violin and piano instructor and occasional contract attorney. She worked as an attorney with the Kane County State's Attorney's office from approximately October 2000 until February 15, 2002. (Tr. 315, 328).
Krupp testified she met Petitioner in the fall of 2001 when they were both assigned to a courtroom handling juvenile delinquency cases. Krupp learned from Petitioner that Petitioner was from a prominent Elgin family, she was in charge of her grandmother's estate, and she wanted to establish a residential program for juveniles. Krupp also learned that Petitioner suffered from ongoing health problems, including leukemia. (Tr. 317, 319, 326).
Krupp eventually learned that Petitioner was going to establish a law firm and in January 2002, she was asked to join Petitioner's firm. Petitioner represented that the firm would handle work for nonprofit organizations, the City of Elgin, and Petitioner's family and the family's holdings. With respect to funding, Petitioner showed Krupp a deposit slip reflecting a deposit of
$5 million. Krupp was to receive a $45,000 salary, medical and dental insurance, and a choice of student loan reimbursement or an automobile. (Tr. 321-25; Adm. Ex. 10).
After Krupp accepted Petitioner's offer and resigned from the Kane County State's Attorney's office in February 2002, she learned that Petitioner was pulling out of the firm. At that time Krupp attempted to reach Petitioner but Petitioner did not return her calls. Krupp then heard from one of the other attorneys that Petitioner had been lying about everything and had no money to fund a law firm. Krupp was unemployed for two and one half months before accepting a position with the DeKalb County State's Attorney's office. (Tr. 316, 328-30, 337).
Krupp testified that the experience with Petitioner has had a negative effect on her professional reputation. Although she feels duped and does not believe she could have done anything to protect herself from harm, she is embarrassed that other attorneys think she made a stupid choice. She acknowledged that she was hired by the DeKalb County State's Attorney's office even though that office was aware of the circumstances of her departure from the Kane County State's Attorney's office. (Tr. 331-32, 338, 345).
Krupp and several other attorneys filed a lawsuit against Petitioner but dismissed the action after Petitioner filed for bankruptcy. Prior to the dismissal Krupp attended a creditor's meeting and questioned Petitioner about her assets and the representations she had made. The only asset that Petitioner acknowledged was a $5,000 inheritance from her grandmother. Krupp noted that Petitioner could have apologized to her at that time, but did not do so and did not make any offer of restitution. As of the date of the hearing, Krupp had received no apology from Petitioner. (Tr. 332-34).
Kimberly Small, an attorney, currently serves as Assistant General Counsel for the Illinois Association of School Boards. Previously she worked at the Kane County Public Defender's office from February 13, 2001 to February 1, 2002. (Tr. 423).
Small testified she met Petitioner when they were both attorneys at the public defender's office. In September 2001 Petitioner revealed plans to start a law firm with Brown and Gruber, and asked Small if she would be interested in becoming an associate. Petitioner represented that her family had significant money, land, and gravel rights to fund the firm, and several municipalities were already lined up as clients. Small learned that Petitioner was also going to start a not-for-profit foundation for at-risk youth. (Tr. 425-27).
Small was offered a position with Petitioner's start-up firm at a starting salary of $40,000, which was not much more than she was making at the public defender's office, plus health and dental benefits. Small accepted the position and thereafter, at Petitioner's request, researched office equipment and car lease insurance, and reviewed the bylaws for Petitioner's foundation. Small obtained quotes for insurance and computer equipment but neither was ever purchased. (Tr. 428-31; Adm. Exs. 19, 20).
Small left her position at the public defender's office on February 1, 2002 to work at Petitioner's firm, but the firm was never funded. Thereafter, Small was unemployed for approximately six weeks before accepting a position with a law firm where she worked for about six months. She left that position and was unemployed for several months until she began work at the DuPuge County Public Defender's office in January 2003. She stayed in that position until November 2006. (Tr. 423-24, 431-33, 438, 441).
Small stated that her experience with Petitioner was embarrassing and she believes it damaged her professional reputation, especially in Kane County. She estimated that her financial damages were $104,000 from loss of income, deferment of her student loans, and having to pay day care to hold a spot for her son and daughter. On cross examination, she stated the only lost work she attributed to Petitioner's conduct was for the time period from February 1, to March 18, 2002, and the salary she received from her subsequent employment at a law firm was comparable to the salary she had received at the public defender's office. She stated Petitioner has never made restitution, offered to make restitution, or apologized. Small believes an apology and acknowledgement of the misconduct would have a healing effect for the victims. (Tr. 434-36, 446).
A transcript of the telephonic evidentiary deposition of David Kreisman was admitted into evidence. Kreisman, an attorney, testified he is a partner at the Fisher law firm. Previously, he was a partner at the firm of Shapiro and Kreisman, which then merged with the Fisher firm on October 1, 2005. Prior to the merger he was apprised of Petitioner's disciplinary proceedings and had read the report of the Hearing or Review Board. Although Kreisman was not happy about employing Petitioner, he agreed because the Fisher attorneys felt strongly that she was a quality attorney and should remain at the merged firm. (Pet. Ex. 10 at 6-9).
Kreisman stated that Petitioner reported to the managing attorney, Elizabeth Meyers, until Meyers resigned in the spring of 2006. Thereafter Kreisman took over the role of managing attorney. He has never heard any complaints from clients or attorneys at the firm regarding Petitioner's reliability or truthfulness. He has not specifically discussed Petitioner's reputation
for honesty with anyone, but stated if Petitioner had acted dishonestly he would have been told about it. (Pet. Ex. 10 at 10-11, 16-18, 26-27).
Following Petitioner's suspension, she became employed as a title examiner at First Financial Title Company, which is owned by the partners of the Fisher firm. To Kreisman's knowledge, she has not done any legal work at the title company. He stated that if Petitioner's law license were reinstated, the Fisher firm would offer her employment because she has skills which the firm needs. Kreisman has not heard anything to suggest that Petitioner's license should not be reinstated. (Pet. Ex. 10 at 21-23).
Lee Perres, an attorney, testified he is the managing attorney at the Fisher law firm. He has known Petitioner since 2002 when she became an attorney at the Fisher firm, and has also interacted with her in her current position of senior title examiner at First Financial Title Company, which is the title company used by the Fisher firm. Perres stated that Petitioner has an excellent reputation for honesty and integrity in the mortgage foreclosure community, which is a close group. He has never heard any negative comments about her honesty and the events which led to her suspension do not change his view. (Tr. 142-47, 150).
In 2007 Perres loaned $2500 to Petitioner because he understood she was having a tough time financially. He stated the loan was intentionally open-ended and he told Petitioner that she could repay him whenever she was able. (Tr. 150-51).
Perres is hopeful that Petitioner will be reinstated to the practice of law so he can rehire her to work at the Fisher firm. He has offered to mentor her and meet with her on a weekly basis to ensure that everything is proceeding smoothly and to monitor her condition. (Tr. 151-54).
Rosemary Schnepf, an attorney, testified that she met Petitioner in 2005 when they both worked at the Fisher law firm. She stated that within the community of foreclosure lawyers, Petitioner has an excellent reputation for honesty and integrity. Schnepf has not discussed Petitioner's honesty with other persons, but never heard any negative comments about her trustworthiness. (Tr. 156-58, 163-64).
Olivia Dirig, an attorney with the Fisher law firm, testified she has known Petitioner professionally and socially since October 2005. When Dirig took over some of Petitioner's files, she never heard anything negative about Petitioner in relation to those files. She believes that Petitioner has a reputation for honesty and integrity, but acknowledged that no attorney has ever stated that to her. (Tr. 166-70).
Joseph Herbas, an attorney at the Fisher firm, testified he has known Petitioner professionally and socially since October 2003. He stated that Petitioner has a reputation for honesty and integrity, but could not recall any specific conversation with respect to her honesty. He has worked with attorneys who know Petitioner's work and has never heard anyone comment that she is dishonest. (Tr. 180-82).
James Borski testified he is the manager of First Financial Title Company and supervises Petitioner's work as a senior title examiner. He has known Petitioner for three and one half years. Borski stated that Petitioner has a good reputation for honesty and integrity and if she did
not, he would have heard about it. He has had no specific conversations about Petitioner's honesty. (Tr. 186-89).
James Noonan, an attorney with Noonan & Lieberman, testified he has known Petitioner for seven years and they have served as co-counsel on several files. He stated he has discussed Petitioner's reputation with other attorneys and that within the community of creditors' attorneys, Petitioner has a good reputation for honesty and integrity. Further, he has never heard any negative comments about Petitioner's honesty. Noonan stated he has not had a professional relationship with Petitioner since her suspension in 2006. (Tr. 171-78).
Dr. Hector Machabanski
Hector Machabanski, a clinical psychologist testified he has treated Petitioner on a regular basis since 2003, and currently charges her $125 for each session. Initially Dr. Machabanski saw Petitioner three to four times per month but at the time of hearing he was meeting with her twice per month. Dr. Machabanski testified Petitioner has always been willing to face and work on difficult issues and is cooperative in treatment. Although Petitioner has changed residences since the sessions began and lives rather far from Dr. Machabanski's office in downtown Chicago, she is always punctual. (Tr. 211, 222-25, 274; Pet. Ex. 11).
When Dr. Machabanski began seeing Petitioner in 2003 he determined that she suffered from personality disorder not otherwise specified, which is an enduring long-term state that typically impacts a person's impulse control, relationships, day-to-day functioning, and how the person perceives others. In Dr. Machabanski's opinion, Petitioner suffered from that disorder in 2001 through 2003, and the disorder caused the acts that led to her suspension. With respect to those acts, he concluded that her history of dysfunctional family issues resulted in her need to be
perceived as a caretaker. At the time of the misconduct, Petitioner's son was suffering from severe psychological disorders and in addition, her mother passed away around that time. (Tr. 226-29).
During Dr. Machabanski's sessions with Petitioner, she acknowledged her false statements and misrepresentations as well as the effect her actions had on other people. While she has accepted her misconduct, she does not have a full recollection of everything that has occurred. Her lack of total recall is consistent with a dissociative state, which is one of the elements of a personality disorder. A dissociative state refers to a person not fully incorporating memories into his/her recollection. (Tr. 229-30, 262-63).
Dr. Machabanski acknowledged that Petitioner's disorder is a part of her person but he was of the opinion that she now utilizes both internal and external safeguards to prevent any recurrence of her misconduct. The process of therapy, her supervision at work, and checking with family and friends are all external safeguards. Her internal self-checking process involves questioning her behavior and double-checking to ensure that she acts appropriately. (Tr. 230-32, 259).
Petitioner uses the prescription drugs Gabitril, which is a mood stabilizer, and Wellbutrin or Budeprion, which are antidepressants. Dr. Machabanski recommends that she continue to use them as prescribed by her psychiatrist Dr. Poshni, and that she continue to engage in psychotherapy and to receive support and mentoring. Dr. Machabanski's August 2007 report recommended that psychotherapy continue for eighteen months at which time Petitioner's functioning and emotional state would be reevaluated. The purpose of continued psychotherapy is to strengthen her current level of adequate, healthy functioning. (Tr. 238-30, 247-48).
Dr. Machabanski stated that during the course of Petitioner's treatment, the symptoms of her disorder have been overcome. She has been able to deal with everyday stressful issues as well as larger issues, such as accepting her misbehavior, losing her law license, beginning a new job, and experiencing financial difficulties, in an appropriate manner without losing control and without impulsivity. Dr. Machabanski has seen no indications of manipulative tendencies which could affect Petitioner's work or clients. In his opinion, Petitioner has been emotionally stable for the last few years and has demonstrated consistent, persistent and healthy rehabilitation. Her success in dealing with stressful events and the progress she has made are the best predictors of future behavior. (Tr. 233-35, 242-43, 246, 253, 272, 279; Pet. Ex. 9).
On the basis of Dr. Machabanski's work with Petitioner for five years, his professional expertise, his review of data, and Petitioner's self reports of her ability to function in the work setting, he has concluded that she has gained insight, self control, a stable sense of identity and a higher healthy level of overall functioning. Petitioner has been able to face issues, communicate appropriately, problem solve in a calm and thoughtful manner, and has expanded her social network. All the indicators over the course of treatment are consistent and suggestive of no impairment or significant distress. Dr. Machabanski is of the opinion that Petitioner has demonstrated fitness to practice law and shows the psychological and professional ability to work as an attorney. (Tr. 240-41, 245, 250, 260-61; Pet. Ex. 9).
Dr. Machabanski acknowledged that, other than one conversation with an attorney at the Fisher firm, he has not talked to any of Petitioner's former or current co-workers. He did read the affidavits that were submitted in support of the Petition for Reinstatement. (Tr. 262, 280).
Dr. Machabanski believes Petitioner is remorseful for her conduct. With respect to restitution, Dr. Machabanski stated that Petitioner has taken steps to understand her behavior and
become healthy. He believes Petitioner is trying to find the best way and time to apologize to the people who were harmed by her conduct, but she is concerned that if she apologizes now, the apology would perceived to be insincere. (Tr. 236-37, 277).
Dr. Machabanski has reviewed Dr. Stafford Henry's report and evaluation of Petitioner and characterized Dr. Henry's diagnosis of depressive disorder in remission and personality disorder not otherwise specified with borderline features as similar to his own diagnosis. Dr Machabanski believes he and Dr. Henry agree that as long as Petitioner continues with her psychotherapeutic treatment and medication, no mental health related reason would preclude her from consistently adhering to the Rules of Professional Conduct. (Tr. 254, 258-59, 268, 277; Adm. Ex. 6).
Dr. Machabanski agrees with Dr. Henry that Petitioner's acts in 2001 and 2002 were intentional and volitional, but does not necessarily agree that Petitioner knew she was lying at the time she made misrepresentations. Dr. Machabanski does not believe Petitioner suffers from borderline personality disorder. (Tr. 232, 265-66).
Dr. Stafford Henry
Dr. Stafford Henry, a physician board certified in psychiatry, addiction psychiatry, and forensic psychiatry, evaluated Petitioner on two occasions. He first saw Petitioner in April 2003 in connection with Petitioner's disciplinary case and then met with her in April 2008 in relation to the current reinstatement proceeding. Dr. Henry stated that his role as an assessor is different than that of a treating physician. The treater acts as a patient's advocate and uses skills and clinical acumen to assist the patient in improving and relieving suffering, whereas an assessor uses his skills to address a referral issue. (Tr. 348, 356, 369-70; Adm. Ex. 4).
Dr. Henry testified that when he interviewed Petitioner in 2003, she denied having any mental illness and she was evasive about having had leukemia. At that time Dr. Henry diagnosed her as suffering from a personality disorder not otherwise specified with borderline features. A borderline personality disorder is characterized by deceit, manipulation and a pervasive sense of emptiness. Dr. Henry believes Petitioner does not meet the full criteria of borderline personality disorder but her misconduct was characteristic of the borderline character structure. (Tr. 359-62, 365, 384; Adm. Ex.5).
At the time of his 2003 diagnosis, Dr. Henry was of the opinion that Petitioner's actions concerning the start-up of the law firm were completely within her conscious control, and she knew her statements were false at the time she made them. He disagrees that Petitioner may have been in a dissociative state, which is a very rare and circumscribed condition, because Petitioner's elaborate, organized, and prolonged behavior was not consistent with any delusion or loss of touch with reality. In 2003 Dr. Henry recommended that Petitioner continue in treatment with Dr. Machabanski, adhere to his recommendations, and work in a structured, supervised work setting with access to mentoring. (Tr. 366-68, 372; Adm. Ex. 5).
Dr. Henry testified that Petitioner's condition could spill into work with clients. He became aware that when Petitioner was working at the Fisher law firm, she changed information in the firm's computer and, when confronted, stated she had a break with reality. Dr. Henry had the impression that the computer entries were designed to give a false impression, but he did not discuss that behavior with Petitioner. Dr. Henry described the behavior as deceit which had spilled over into the workplace. On cross examination, he acknowledged that he did not inquire as to whether the computer entries actually were false. (Tr. 371, 385, 389-90).
In 2008 Dr. Henry again interviewed Petitioner and prepared a written evaluation. At that time Petitioner admitted she lied to her colleagues and caused them to quit their jobs, admitted she did not have leukemia or receive chemotherapy, and stated she regretted her behavior and hurting people that were her friends. Dr. Henry described Petitioner as being more honest than in 2003 and believes her remorse is genuine. (Tr. 373-74, 393-95, 416; Adm. Ex. 6).
During the second evaluation Dr. Henry learned that Petitioner was continuing her treatment with Dr. Machabanski, seeing a psychiatrist, and was employing internal and external checking mechanisms to ensure that she did not make misrepresentations or mislead anyone. He concluded that she has made significant therapeutic strides. Petitioner indicated she intended to apologize to the people she hurt, but Dr. Henry did not understand why she had not yet made amends. He feels that apologies are important and found Petitioner's failure in that regard to be clinically significant. (Tr. 375-77, 396, 417; Adm. Ex. 6).
In his 2008 report Dr. Henry again diagnosed Petitioner as suffering from personality disorder not otherwise specified with borderline features, but made the additional diagnosis of depressive disorder not otherwise specified in remission with medication. With respect to the additional diagnosis, he stated Petitioner was more honest with him and acknowledged she had struggled with depression since her thirties. He noted she is currently on medication for her depression and impulsivity. (Tr. 377-78, 398; Adm. Ex. 6).
Dr. Henry believes that Petitioner's use of medications, in combination with treatment from Drs. Machabanski and Poshni, will keep her depressive and personality disorders in check and in remission. In his opinion if she were to continue with her treatment, adhere to her treaters' recommendations, be monitored and work in a structured work setting, there is no mental health reason why she could not adhere to the Rules of Professional Conduct. He
explained that a structured work setting is important because individuals with personality disorders tend to exercise poor judgment and have blurred internal boundaries. In such cases external boundaries are necessary and can be provided in a setting that establishes clear roles and responsibilities and a strict system of accountability. (Tr. 380-82, 399, 402, 414, 418).
Dr. Henry was not able to place a time limit on Petitioner's treatment, and believes that determination should be made cooperatively between Petitioner and her treater. He was impressed by Petitioner's statement that she plans to remain in treatment forever. (Tr. 382-83).
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 for us to consider in determining a petitioning attorney's rehabilitation, present good character and current knowledge of the law:
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 her rehabilitation, good character and current knowledge of the law.
1. Nature of the Misconduct
The severity of the misconduct leading to an attorney's discipline is an important factor in determining whether reinstatement is warranted. 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 does not deny that the misconduct for which she was disciplined was egregious. Her web of deceit not only entangled five other attorneys and caused them to give up their jobs, but also had an impact on the Kane County Public Defender's office, a real estate broker, an automobile dealer and the legal profession in general. We do note, however, that she did not profit financially from her lies, and no clients were involved in her scheme.
The severity of Petitioner's misconduct can also be measured by the sanction imposed by the Supreme Court. In this case, Petitioner was suspended in September 2006 for one year until further order of the Court. She has now been absent from the practice of law for nearly three years, which exceeds the original period of suspension that was imposed. Therefore, while we acknowledge that Petitioner engaged in serious misconduct, we do not find that it rises to a level which bars her reinstatement.
Moreover, we have reviewed the misconduct in other reinstatement cases and ascertained that the Supreme Court has reinstated attorneys who have participated in elaborate fraudulent activities. In In re Keane, 102 Ill.2d 397, 466 N.E.2d 208 (1984) an attorney was reinstated after being disbarred and serving two years in prison for conspiracy and mail fraud in connection with a land purchase scheme. In In re Silvern, 92 Ill.2d 188, 441 N.E.2d 64 (1982), an attorney was reinstated after his disbarment and conviction for two counts of mail fraud and one count of conspiracy for his participation in a scheme to defraud insurance companies. In In re Martinez-Fraticelli, 221 Ill.2d 255, 850 N.E. 2d 155 (2006), the Supreme Court reinstated an attorney who had served time in prison for defrauding taxpayers by accepting wage payments and health insurance coverage totaling approximately $56,000.
In the present case, Petitioner's misconduct was serious in nature but having considered the foregoing precedent, we conclude that the nature of Petitioner's misconduct does not preclude reinstatement.
2. Maturity and Experience of Petitioner
When Petitioner began making misrepresentations regarding her plans to open a law practice, she was in his mid-forties and had been working as an attorney for nearly three years. Her relatively short time in practice is not an issue, however, since her misconduct did not stem from a lack of knowledge or experience in the legal profession. Indeed, no great depth of legal experience is necessary to understand that making false representations is wrong.
While we conclude that Petitioner was sufficiently mature and experienced to recognize that her actions were wrong, we further note that she was suffering from a personality disorder at the time of her misconduct. Dr. Henry concluded in his 2003 report that Petitioner's tendencies to misrepresent and give false impressions, although conscious and volitional, stemmed from
deep-seated feelings of inadequacy and emptiness related to her personality disorder. Both the Hearing Board and the Review Board recognized a causal connection between Petitioner's acts and her disorder.
We are also aware that the maturity and experience of a petitioning attorney is seldom, if ever, a reason for denying a petition for reinstatement. Other attorneys who committed inherently dishonest acts unrelated to any mental disorder, and who had practiced for twenty or more years at the time of their misconduct, have been reinstated to the practice of law. See In re Silvern, supra; In re Fleischman, 135 Ill.2d 488, 553 N.E.2d 352 (1990). Thus, we do not view this factor as a bar to Petitioner's reinstatement.
3. Petitioner's Recognition of the Nature and Seriousness of the Misconduct
The third factor to be considered is whether Petitioner recognizes the nature and seriousness of her 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 Martinez-Fraticelli, 221 Ill.2d 255, 850 N.E. 2d 155 (2006).
Petitioner acknowledged that her misconduct was both wrong and egregious. She accepted responsibility for her actions, blamed no one but herself, and expressed her regret at having hurt her colleagues and the legal profession. Dr. Henry testified that he believed Petitioner's remorse was genuine. We find therefore that Petitioner recognizes the nature and seriousness of her misconduct.
The fourth factor under Rule 767(f) is whether the petitioner has made restitution. In In re Martinez-Fraticelli, 221 Ill.2d 255, 850 N.E. 2d 155 (2006) the Court stated that while
rehabilitation, rather than restitution, is the controlling consideration in a reinstatement proceeding, restitution is nonetheless an important factor.
The Administrator pointed out that Petitioner has not compensated the victimized attorneys for their financial losses. We received little information on the actual monetary value of those losses, but understand the injury consists primarily of lost income due to periods of unemployment. While one attorney estimated her loss at $104,000, the relationship between that figure and the six weeks she was out of work was not established.
This is not a case where Petitioner reaped any financial gain as a result of her misconduct. Further, we note that in the underlying disciplinary proceeding, neither the Review Board nor the Hearing Board discussed or suggested the need for restitution. In fact, those opinions discussed the victims' losses in only general terms, mentioning financial losses along with emotional suffering and the harm to the attorneys' reputations. The Supreme Court's order of suspension did not impose restitution as a condition of reinstatement.
We received evidence that Petitioner filed bankruptcy and has experienced some financial difficulties. Under the circumstances noted, we do not believe this factor should act as a bar to Petitioner's reinstatement.
The Administrator further argued that Petitioner has failed to apologize to the attorneys who were deceived. Petitioner agreed that she owes apologies to those individuals and stated that she intends to make amends when these proceedings are concluded. In Petitioner's opinion, offering an apology because she is ordered to do so would diminish the sincerity of the effort.
While we understand Petitioner's concern that an apology during the pendency of these proceedings could be interpreted as being disingenuous or an attempt to curry favor, we note that she had ample time during her suspension period to contact the attorneys, either in person or in
writing, to express her remorse. Like Dr. Henry, we do not fully understand her failure to take that step. We believe it is important for the injured attorneys to receive an acknowledgement of wrongdoing and expression of regret for the harm that was caused. As one witness testified, a direct apology would greatly aid in the healing process. Therefore, we believe that Petitioner should not be reinstated until she demonstrates that she has reached out to her victims and expressed her remorse directly to them.
5. Petitioner's Conduct Since Discipline was Imposed
Shortly after Petitioner was suspended in 2006, she became employed as a senior title examiner at First Financial Title Company and has remained in that position since that time. Her supervisor testified that she has a reputation for honesty and hard work. The Administrator did not suggest that Petitioner has engaged in any inappropriate behavior in connection with her employment at First Financial Title, or in her personal life, since discipline was imposed.
Most of the evidence regarding Petitioner's conduct during her period of suspension related to the state of her mental health disorder and her treatment program. This issue has significance because when the Review Board issued its Report and Recommendation in November 2005, it expressed its concern with the scarcity of evidence as to the state of Petitioner's mental health. In light of Petitioner's mental condition, the fact that her level of understanding of her condition and necessary treatment appeared to be low, and her continued misrepresentations in the months preceding the disciplinary hearing, the Review Board concluded that Petitioner should be required to demonstrate that the symptoms of her mental disability had been overcome and were not likely to recur before she was allowed to resume the practice of law. For those reasons the Board recommended that Petitioner's suspension continue until further order of the Court, and the Supreme Court approved that recommendation.
At the time the Review Board expressed its concerns, Petitioner had been in treatment with Dr. Machabanski for approximately two years. When she appeared before us at the reinstatement hearing, she had completed more than three years of additional treatment, and continues to see both Drs. Machabanski and Poshni on a regular basis. Dr. Machabanski stated that Petitioner has been consistently willing to face and work on difficult issues, and is involved and cooperative. He expressed the opinion that the symptoms of Petitioner's disorder have been overcome and she has dealt with stressful issues in an appropriate manner, has been emotionally stable for the past few years, and has demonstrated her fitness to practice law.
The Administrator's witness, Dr. Henry, evaluated Petitioner in 2003 and 2008. When he interviewed Petitioner in 2008, he felt she was more honest than when he initially interviewed her, and had made significant therapeutic strides. Dr. Henry believes that Petitioner's continued treatment and use of medications will keep her depressive and personality disorders in check and in remission. In his opinion, if Petitioner continues with her treatment and adheres to her treaters' recommendations, is monitored, and works in a structured work setting, no mental health reason would preclude her from complying with the Rules of Professional Conduct.
Given the agreement between Dr. Henry and Dr. Machabanski that Petitioner has faced her problems and treatment has been successful in controlling the symptoms of her disorder, and the lack of any dishonest behavior since her suspension, we believe the concerns articulated by the Review Board in 2005 have been successfully laid to rest. In fact, we can think of nothing more Petitioner could have done to further her rehabilitation or demonstrate her commitment to maintaining her mental health. We applaud Petitioner's hard work in coming to terms with her mental disorder and her commitment to treatment, and believe her conduct since discipline has been imposed is a factor weighing in favor of reinstatement.
6. Petitioner's Candor and Forthrightness
The Administrator did not challenge Petitioner's candor and forthrightness in the presentation of her petition, and we found her to be both candid and straightforward in her disclosure of information in support of her petition.
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. While Petitioner engaged in serious misconduct and her behavior cannot be attributed to immaturity or lack of experience, she has served the length of suspension the Supreme Court deemed appropriate for the misbehavior. In fact, she will have significantly exceeded that time period by the time these proceedings are concluded. While on suspension, Petitioner has been gainfully employed, has been in regular treatment for her disorder, and has not engaged in any further dishonesty. She was candid and forthright in presenting her petition, and the witnesses who testified on her behalf believed she has a very good reputation for honesty and integrity. Petitioner also supplied evidence that she has kept abreast of the law and has completed the hours of continuing legal education required of practicing attorneys.
For the foregoing reasons, we believe Petitioner has clearly and convincingly established her rehabilitation, present good character, and current knowledge of the law. Accordingly, we believe that reinstatement is appropriate in this case. We further believe, however, that Petitioner's reinstatement should be subject to certain conditions.
First, while we did not find that Petitioner was required to make any monetary restitution to the attorneys that were harmed by her conduct, we do believe that a letter of apology to each attorney is in order. As we stated previously, we understand Petitioner's reluctance to offer an
apology during the pendency of these proceedings, but we also believe the feelings of the victims are paramount and need to be addressed, preferably sooner rather than later. We see no reason for further delay in that regard, and therefore recommend that Petitioner prepare and send letters of apology to the attorneys who were harmed.
Second, because Drs. Machabanski and Henry agreed that Petitioner's mental disorder is pervasive and enduring and that continued treatment is necessary to ensure that the symptoms of her disorder do not recur, we further recommend that her reinstatement be subject to the conditions suggested by Dr. Henry. Continued treatment, working in a structured environment, and being supervised by a mentor will not only protect the public, but will serve as constant reminders to Petitioner that she must remain focused on the safeguards and mechanisms which keep her symptoms in check.
We find support for our recommendation of conditional reinstatement in the following cases: In re Wood, 07 RT 3004, M.R. 21816 (Sept. 16, 2008) (attorney required to attend two 12-step meetings per week and remain under care of physician); In re Schmieder, 98 RT 3003, M.R. 15044 (Nov. 19, 1999) (requirement of continuing treatment by psychologist); In re Kloak, 95 CH 558, M.R. 13911 (Sept. 24, 1997) (two year mentoring requirement); In re Braner, 93 SH 482, M.R. 9547 (Jan. 25, 1995) (two year mentoring mentoring requirement and restitution).
Accordingly, we recommend that Petitioner be reinstated to the practice of law, subject to the following conditions:
Prior to being reinstated, Petitioner shall compose and transmit a letter of apology to attorneys Peter Gruber, Myrrha Guzman, Jeanne Meyer, Kimberly Small, and Christie Krupp, and provide a copy of the letters to the Administrator;
Petitioner shall continue treatment with Dr. Hector Machabanski and Dr. Aftab Poshni, or such other medical professionals acceptable to the Administrator, and adhere to their treatment recommendations until such time
as the treating professionals determine and notify the Administrator that treatment is no longer necessary;
Petitioner shall provide an appropriate release to her treating professionals authorizing them to disclose to the Administrator on at least a quarterly basis Petitioner's attendance, compliance or non-compliance with treatment recommendations, and general progress.
Petitioner shall work in a structured work environment and be mentored by an attorney approved by the Administrator, until such time as she can demonstrate that mentoring is no longer necessary. During the mentoring period:
Petitioner shall report to the mentoring attorney at least once a week concerning her practice;
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;
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.
If at any time during the mentoring period the named mentor is unable to fulfill his role as mentor, Petitioner shall immediately inform the Administrator and propose a successor mentor, subject to the approval of the Administrator.
Date Entered: July 8, 2009
|Lawrence S. Beaumont, Chair, and hearing panel members Heather A. McPherson and Joseph J. Calvanico.|