Filed February 2, 2009

In re Daniel Cass Mills
Respondent-Appellant

Commission No. 07 SH 2

Synopsis of Review Board Report and Recommendation
(February 2009)

The Administrator-Appellee filed a one-count complaint against Respondent-Appellant Daniel Cass Mills, charging that he committed criminal acts, namely possession and use of cocaine and cannabis, which reflected adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, and engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) and conduct tending to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. Respondent admitted almost all of the factual allegations of the complaint, and denied some of them. He neither admitted nor denied the allegations of misconduct.

The Hearing Board found that Respondent committed all of the misconduct charged in the complaint. It recommended that Respondent be suspended from the practice of law for two years and until further order of court.

The case was before the Review Board on Respondent's exceptions. While finding that under the circumstances, Respondent's assertion of his Fifth Amendment rights could not be considered an aggravating factor, the Review Board agreed with the recommendation of the Hearing Board and with a petition to impose discipline on consent presented after oral argument in this case that Respondent be suspended from the practice of law for two years and until further order of court.

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

In the Matter of:

DANIEL CASS MILLS,

Respondent-Appellant,

No. 6231139.

Commission No. 07 SH 2

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

The Administrator-Appellee filed a one-count complaint against Respondent-Appellant Daniel Cass Mills, charging that he committed criminal acts, namely possession and use of cocaine and cannabis, which reflected adversely on his honesty, trustworthiness or fitness as a lawyer, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, and engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) and conduct that tended to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770. Respondent admitted almost all of the factual allegations of the complaint and denied some of them. He neither admitted nor denied the allegations of misconduct.

The Hearing Board found that all of the charges of misconduct had been proved by clear and convincing evidence. It recommended that Respondent be suspended from the practice of law for two years and until further order of court.

The case is now before the Review Board on Respondent's exceptions.

The facts of this case can be found in the Hearing Board's Report and Recommendation. We find it necessary to address only one issue before us, which concerns the basis upon which the Hearing Board reached its recommended sanction.

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When called as a witness by the Administrator and again while testifying in his own case, Respondent refused to answer certain questions on Fifth Amendment grounds. As a result, counsel for the Administrator suggested in closing argument that the Hearing Board should draw an unfavorable inference from Respondent's assertion of the privilege, and "should consider Mr. Mills' failure to fully cooperate by taking the Fifth as a factor in aggravation." The Hearing Board did so, finding "that the Respondent was not fully candid or forthright, and did not fully cooperate during this disciplinary proceeding" to be an aggravating factor. The Report and Recommendation then lists the questions to which "Respondent chose to assert Fifth Amendment rights." In re Mills, 07 SH 2, (Hearing Board, January 23, 2008) at 25-26.

Spevack v. Klein, 385 U.S. 511, 514, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) provides that the Fifth Amendment privilege against self-incrimination is applicable to disciplinary proceedings. The case does not indicate the method to be used to assert the privilege, however. Although a respondent has the right not to incriminate himself, there is also a significant interest in maintaining the integrity of the bar that must be considered. In re Zisook, 88 Ill.2d 321, 331, 430 N.E.2d 1037, 58 Ill. Dec. 786 (1981). If assertion of the privilege were left solely to the discretion of the respondent, there would be "a substantial opportunity for abuse." Id.

Zisook provides a method by which the rights of the respondent and the needs of the Commission can both be accommodated. A witness desiring to claim the privilege against self-incrimination must appear and do so in answer to each incriminating question, as Respondent did in this case. At that point, the Commission may seek judicial determination of the validity of the claim from the Chief Judge of the circuit in which the proceeding is located. The Chief Judge will assign a judge to hear the matter, who will consider all of the facts and

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circumstances of the case in order to determine whether Respondent's assertion of the privilege is justified. In re Zisook, id., 88 Ill.2d at 333, 430 N.E.2d 1037, 58 Ill. Dec. 786.

No judicial determination was requested in this case. Without following the procedures set forth in Zisook, Respondent's assertion of his rights under the Fifth Amendment to the United States Constitution was presumptively valid. And while it was wholly appropriate for the Hearing Board to draw an adverse inference from Respondent's assertion of the Fifth Amendment for purposes of their function as a fact-finding body, (see In re Ellis, 97 CH 63 (Hearing Board, August 11, 1999), affirmed, (Review Board, February 15, 2000), approved and confirmed, No. M.R. 16744 (May 17, 2000); In re Hirschtick, 05 CH 32 (Hearing Board, April 13, 2007), approved and confirmed, No. M.R. 21668 (September 18, 2007)) it was inappropriate for the Hearing Board to have treated that assertion as tantamount to a "failure to cooperate" or as an aggravating factor for purposes of imposing discipline.

Following oral argument before us, the Administrator filed a motion requesting the Review Board to approve the submission of this case to the Supreme Court as an agreed matter by way of a petition to impose discipline on consent. We have denied that motion, as we have concluded that it is important to make our position concerning this single issue clear. However, in view of all the circumstances, we do recommend that Respondent be suspended for two years and until further order of court, for the reasons set forth in the proposed petition and in accordance otherwise therewith.

Date Entered: 2 February 2009

Respectfully Submitted,

Daniel P. Duffy
Bruce J. Meachum
Terrence V. O'Leary