Filed January 5, 2010

In re Nick F. Burgrabe
Respondent-Appellee

Commission No. 07 SH 9

Synopsis of Review Board Report and Recommendation
(January 2010)

The Administrator charged Burgrabe with four counts of misconduct related to his two arrests for driving under the influence of alcohol (Counts I and II), his videotaping of his sexual activities with five different women without their knowledge or consent (Count III), and his allegedly inappropriate comments to a client (Count IV). Burgrabe admitted the allegations contained in Counts I, II, and III and denied those contained in Count IV.

The Hearing Board found that the Administrator proved the misconduct alleged against Burgrabe except for the allegations set forth in Count IV. The Hearing Board recommended that Burgrabe's license be suspended for three years and until further order of the court with the suspension stayed after nine months by a three-year period of probation which would require him to, among other things, obtain treatment from a psychiatrist or qualified psychotherapist, complete an intensive outpatient treatment program and aftercare program for alcohol abuse, participate in a twelve-step program, abstain from using alcohol, and submit to random drug tests.

The Administrator filed exceptions to the Hearing Board's Report and Recommendation and asserted on review that Burgrabe is not eligible for probation and should be suspended for two years and until further order of the court.

The majority of the Review Board determined that probation is not appropriate because, as of his appearance before the Review Board, Burgrabe had not voluntarily initiated treatment for his problems. The majority recommended that Burgrabe receive a suspension of two years and until further order of the court.

A dissenting member of the Review Board would have adopted the Hearing Board's recommended sanction because there was no showing that Burgrabe is presently unfit to practice law, the public will be protected by the terms of probation, and Burgrabe is willing to comply with the probationary requirements.

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

In the Matter of:

NICK F. BURGRABE,

Respondent-Appellee,

No. 6181196.

Commission No. 07 SH 9

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

THE CHARGES

This case involves four counts of alleged misconduct. In Counts I, II and III Nick F. Burgrabe ("the Respondent" or "Burgrabe") was charged with engaging in criminal conduct that reflects adversely on his honesty, trustworthiness or fitness as a lawyer. Count I involved a conviction for driving under the influence of alcohol in 2001. Count II involved a second arrest for driving under the influence that resulted in a conviction for reckless driving in October 2006 as part of a plea agreement. Count III involved his admission that he videotaped his sexual activities with five different women without their knowledge or consent in violation of the eavesdropping statute 720 ILCS 5/14-2(a). Count IV involved the Respondent's relationship with a client and alleged that he overreached the attorney-client relationship by asking the client for a date during the representation.

The Respondent admitted the allegations of Counts I, II and III. He denied the misconduct charged in Count IV.

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The Hearing Board found the Administrator proved the conduct charged in Counts I, II and III, but failed to prove the misconduct alleged in Count IV. The Hearing Board recommended that the Respondent's license be suspended for three years and until further order of the Court, with the suspension stayed after nine months by a three-year period of probation which required the Respondent to, among other things, begin treatment with a psychiatrist or qualified psychotherapist, complete an intensive outpatient program and an aftercare program, participate in a 12-step program, abstain from using alcohol, and submit to random substance testing.

The Administrator has filed exceptions to the Hearing Board's recommendation, contending that the Respondent should be suspended for two years and until further order of the Court. The Administrator argues that the Respondent is not eligible for probation citing cases in which the Supreme Court has placed an attorney on suspension until such time as he can demonstrate a history of successful participation in treatment.

The Respondent does not challenge the Hearing Board's recommendation, and his lawyer stated at oral argument that he has no objection to completing an outpatient program during the nine-month period of suspension and that he will begin an after care program and treatment for his personality disorder before any period of probation begins.

As the case is presented to us, the only issue is whether the stay with probation is appropriate given the admitted serious misconduct and the Respondent's reaction to the Administrator's charges. For the reasons explained in this report, we recommend that the Respondent be suspended from the practice of law for two years and until further order of the Court.

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COUNT I

The Respondent admitted the misconduct charged in Count I. On October 13, 2001, the Respondent was observed driving erratically and later was found sleeping in his car with his headlights on, the motor running and empty beer bottles in the car. The Respondent refused to perform a field sobriety test and a blood alcohol test. On November 14, 2001, he entered a plea of guilty to the charge of driving under the influence of alcohol, a Class A misdemeanor.

Based on this evidence, the Hearing Board found that the Respondent "(a) committed a criminal act, driving under the influence of alcohol, that reflects adversely on the lawyer's 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 (b) engaged in conduct which tends to bring the courts of the legal profession into disrepute, in violation of Supreme Court Rule 770." In re Burgrabe, 07 SH 9 (Hearing Bd., Oct. 7, 2008) at 18.

COUNT II

Count II involved a similar episode. In October 2005 witnesses observed the Respondent driving erratically. When stopped, the police observed that he smelled strongly of alcohol and was unsteady on his feet. He refused a field sobriety test. He did agree to take a breath test, but then either refused or was incapable of blowing into the testing device. He was charged with driving under the influence of alcohol and improper lane usage. On October 16, 2006, the State's Attorney amended the driving under the influence of alcohol charges to reckless driving, a Class A misdemeanor. The improper lane charge was dismissed.

Based on this undisputed evidence, the Hearing Board found that the Respondent "(a) committed a criminal act, driving under the influence of alcohol, that reflects adversely on

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the lawyer's 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 (b) engaged in conduct which tends to bring the courts of the legal profession into disrepute, in violation of Supreme Court Rule 770." Burgrabe, 07 SH 9 (Hearing Bd. at 19).

COUNT III

Count III involves a different type of misconduct that came to light in one of the Respondent's divorce proceedings. Between 1991 and 1997, using an electronic device he taped the audio and video of his sexual activities with five different women in the bedroom of his home. These recordings were made without the consent or knowledge of the five women involved. The Respondent refused to identify the women, but did state that three were former clients and one was a secretary in his office.

The Respondent does not dispute that each of these recordings constituted a Class 4 felony (720 ILCS 5/14-4) and that the Administrator proved by clear and convincing evidence that the Respondent "(a) committed a criminal act, eavesdropping, that reflects adversely on the lawyer's 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; (b) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4); and (c) engaged in conduct which tends to bring the courts of the legal profession into disrepute, in violation of Supreme Court Rule 770." Burgrabe, 07 SH 9 (Hearing Bd. at 20).

The videotapes apparently surfaced in a divorce proceeding started by a former wife. It became an item of some notoriety in his community. The charges brought by the Administrator also became a news issue prompting the Respondent to publish a letter in the

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Lincoln Courier on February 16, 2007 in which he acknowledged his misconduct and apologized to his family and friends. The letter concluded with a statement that

"I have gone through alcohol evaluations and followed the treatment recommendations and have had counseling to address the past mistakes I have made. I have fully cooperated with the ARDC and will continue to do so. I will accept their judgment and it is my expectation that I will be able to maintain my practice without interruption."

Burgrabe, 07 SH 9 (Hearing Bd. at 18).

In his brief, the Administrator has challenged the assertion by the Respondent that he would fully cooperate with the ARDC. In November 2007 in pre-hearing discovery, the Administrator requested that the Respondent provide the name, last known address and date of representation of each of the women whom the Respondent videotaped and who had been a client. This request was ignored ultimately requiring a motion to compel filed in January 2007. In his response brief to the Hearing Board the Respondent asserted he did not want the women subjected to any humiliation and that this concern outweighed the Administrator's need for the information. The Administrator contended the information was necessary to test the Respondent's assertion that none of the women were clients at the time of the videotaping.

On March 27, 2008, the Hearing Board entered an order compelling the Respondent to provide the information. On April 21, 2008, he refused to cooperate, advising the Hearing Board that he felt he was doing the honorable thing in protecting the identity of the women and that he was prepared to suffer the consequences.

COUNT IV

This count involved the Respondent's relationship with a female client in 2005. The Hearing Board report detailed the circumstances. The Hearing Board found that the charges were not proven by clear and convincing evidence. This finding has not been challenged.

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SANCTION

As noted, the Administrator has taken exception to the Hearing Board's recommendation of a stay with probation. A substantial portion of the evidence before the Hearing Board related to the question of what is the appropriate sanction.

The Respondent asked to be placed on probation and stated that he believes he would comply with the conditions placed on him and with all of Dr. Henry's recommendations. The Respondent stated that he has several people who will help him, including his wife, his minister, his friend Tom Funk, and his colleagues in Logan County.

Thomas Funk testified that he and the Respondent have known each other since they were nine years old. Funk stated that the legal community in Logan County was impressed by the Respondent's public admission of and apology for his wrongdoing.

Judges Charles M. Feeney III and David Coogan testified that the Respondent has a good reputation for honesty and integrity in the legal community. Judge Feeney stated that the Respondent's reputation was enhanced by admitting his misconduct.

Karen Burgrabe, the Respondent's wife, has been married to the Respondent since April 2006. The Respondent had represented her in the dissolution of her previous marriage, and they began dating after the dissolution was finalized.

Mrs. Burgrabe testified that, since his DUI arrest in 2005, the Respondent has not consumed alcohol other than communion wine. She supports his sobriety as do her family members, the Respondent's older daughters from a previous marriage, and the members of their church. Their church is very important to the Respondent.

Dr. Stafford C. Henry evaluated the Respondent at the Administrator's request. He is board certified in psychiatry, forensic psychiatry, and addiction psychiatry. Dr. Henry

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opined that the Respondent has alcohol dependence in reported sustained remission and a personality disorder with narcissistic features. He testified that the Respondent did not view himself as alcohol dependent or see the need to join a 12-step program. Dr. Henry did not believe that any of the court-ordered treatment that the Respondent has completed constituted an appropriate level of care for his alcohol dependence.

In Dr. Henry's opinion, the Respondent should complete an intensive outpatient program for six to eight weeks with other high-functioning individuals. He should also participate in a 12-step program and join a weekly after-care group for attorneys or other professionals to discuss their daily struggles in abstaining from alcohol.

Dr. Henry further opined that the Respondent has not addressed psychological motivations and drives that led him to secretly videotape his sexual activities. The Respondent should address these motivations and drives as well as boundary issues with a qualified therapist to prevent any future inappropriate activities with clients.

At the time of his testimony, Dr. Henry believed that the Respondent turned to alcohol in times of stress and was at risk for a relapse. He stated that there was no clinical reason why the Respondent could not practice law if he received the appropriate treatment and had appropriate safeguards in place.

After considering this evidence, the Hearing Board made the following finding:

After considering the nature and seriousness of the Respondent's misconduct, the aggravating and mitigating factors, and the testimony of Dr. Henry, we believe that a lengthy suspension until further order of the Court, stayed after nine months for a three-year term of probation with conditions, would serve as an adequate deterrent, sufficiently protect the public, and uphold the integrity of the legal profession.

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Considering the Respondent's refusal to assist and cooperate with the Administrator, we feel that a recommendation for disbarment would not have been inappropriate. The Administrator could not determine if the victims were, or were not, current clients of the Respondent at the time of the misconduct in Count III, and could not determine what coercion, if any, occurred. The primary beneficiary of the refusal to disclose could have been the Respondent.

However, the Hearing Panel is disposed to grant the Respondent the benefit of the doubt because of his remorse and because of the mitigation so capably laid out by Respondent's counsel.

Burgrabe, 07 SH 9 (Hearing Bd. at 27).

When recommending a sanction, we bear in mind that the purpose of the disciplinary system is not to punish attorneys, but to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re LaPinska, 72 Ill.2d 461, 473, 381 N.E.2d 700 (1978). We consider all of the pertinent circumstances, including the nature of the misconduct and the mitigating and aggravating factors. We seek to recommend similar sanctions for similar transgressions, but must also evaluate each case on its own particular circumstances. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993).

Supreme Court Rule 772 provides that the Court may place an attorney on probation if the attorney has demonstrated that he:

(1) can perform legal services and the continued practice of law will not cause the courts or profession to fall into disrepute;

(2) is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;

(3) has a disability which is temporary or minor and does not require treatment and transfer to disability inactive status; and

(4) is not guilty of acts warranting disbarment.

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The Administrator asserts that an attorney with a substance abuse problem or a mental disability should not be eligible for probation unless he has already initiated appropriate treatment for his problems. He relies on the following cases: In re Keeton, 04 SH 117 (Review Board, Feb. 22, 2008), petition for leave to file exceptions allowed, No. M.R. 22345 (May 19, 2008); In re Sutherin, 03 Ch 61 (Review Board, Nov. 21, 2006), petition for leave to file exceptions denied, No. M.R. 20636 (Sept. 20, 2006); In re Frank, 93 CH 68 (Hearing Board, Oct. 3, 1994), approved and confirmed, No. M.R. 10626 (Jan. 25, 1995); In re Stern, 95 CH 250 (Review Board, June 19, 1996), petition for leave to file exceptions allowed, No. M.R. 12813 (Sept. 24, 1996); In re Kuhlman, 96 CH 469 (Review Board, Aug. 16, 1999); petition for leave to file exceptions allowed, No. M.R. 16169 (Nov. 19, 1999); In re Clark, 97 CH 111 (Hearing Board, July 28, 2000), petition for leave to file exceptions allowed, No. M.R. 17713 (Nov. 29, 2001); and In re Czarnik, 07 CH 15, petition for discipline on consent allowed, No. M.R. 22203 (March 17, 2008).

While the facts of each of these cases is different than the one we are evaluating, the Administrator is correct that each involved a respondent who voluntarily initiated treatment for his problems. In his brief the Respondent cites In re Driscoll, 85 Ill.2d 312, 423 N.E.2d 873 (1981) contending that the Supreme Court has encouraged the use of probation. However, the Respondent overlooks the fact that unlike this case, Driscoll had been in successful treatment at the time the sanction was imposed and probation was recommended.

The Respondent has not cited a single case in which probation was recommended as part of a sanction for misconduct involving alcohol dependence or mental illness and the Respondent had not already involved himself in a program. The Respondent who has acknowledged his significant misconduct and his problems has for whatever reason not started

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on the programs recommended by Dr. Henry and the ones he says he will undertake in the future. The Hearing Board was willing to give him the benefit of the doubt that he will comply with these undisputed recommendations. We are not willing to recommend that the Court do so.

In our judgment, action speaks louder than words. These proceedings began on February 7, 2007. The Respondent has had ample opportunity to take action and has looked the other way. If he is put on probation and issues arise about his compliance with recommended programs, the Administrator would then have to initiate new proceedings relating to the revocation of probation. The Administrator would have the burden under those circumstances. The Respondent could have demonstrated his bona fides in this regard and has not done so. We are concerned about the serious misconduct at issue and the report and testimony of Dr. Henry. In his report Dr. Henry made a number of pertinent observations and conclusions. He testified that he found Respondent's report of abstinence to be suspicious given the Respondent's history and his lack of insight into his alcohol dependence and denial of alcohol addiction. He also noted the Respondent's lack of a support group outside his wife and older daughters. Dr. Henry also testified that although the last video incident occurred in 1997 the Respondent's problem has not been addressed by any appropriate treatment and that it is needed. The Respondent in his testimony said he was in agreement with Dr. Henry's recommendations. So the only issue is whether he is committed to them. In our view, he should be suspended until he has demonstrated he has received and cooperated with the appropriate treatment. The Respondent characterizes this as too harsh. Yet he is the one who decided not to pursue a course of action that might have made us more comfortable with another recommendation.

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CONCLUSION

For the foregoing reasons, we recommend that the Hearing Board's factual findings and findings of misconduct be affirmed. We recommend that the Respondent's license be suspended for two years and until further order of the court.

Dated: 5 January 2010

Respectfully submitted,

Gordon B. Nash, Jr.
David F. Rolewick

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In re Burgrabe, No. 07 SH 9

I dissent because I find the Hearing Board recommendation well-considered and tailored to meet the situation of Respondent. On the other hand, I find the majority recommendation unduly punitive and inconsistent with discipline imposed in other cases where the lawyer misconduct had a greater deleterious effect on clients and the public.

The Supreme Court has called a suspension until further order of the court the most severe sanction short of disbarment. In re Timpone, 208 Ill.2d 371, 386, 804 N.E.2d 560 (2004). It therefore ought only be imposed in those cases when (1) it has been demonstrated that the respondent, due to mental disability or substance abuse, is presently unfit to practice law and should therefore have a burden of demonstrating that he has been rehabilitated and has regained his fitness (In re Bourgeois, 25 Ill.2d 47, 51, 182 N.E. 651 (1962)); or (2) there is no evidence in the record that the respondent is willing or able to meet professional standards of conduct in the future, such as when a respondent is a recidivist or fails to participate in disciplinary proceedings (In re Houdek, 113 Ill.2d 323, 326-37, 497 N.E.2d 1169 (1986)).

In this case neither condition has been met. With respect to (1) above, there has been no demonstration at all that Respondent is unfit to practice law. He publicly acknowledged his misconduct, and there is no evidence that he has experienced any relapse since that time. While Dr. Henry may have identified potential personality problems or a danger of again becoming alcohol dependent, I reject the notion that it is appropriate to penalize an attorney for not involving himself in a treatment program recommended by an ARDC psychiatrist in advance of a hearing, absent evidence of an inability to practice. The majority's expression, "action speaks louder than words," does not apply to a case where the respondent is successfully practicing law. There may be countless lawyers who have drunk to excess and whom a

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psychiatrist might diagnose as having personality deficiencies. Such information should not be used to penalize those lawyers, absent a demonstrated inability to practice law, which is not present here. Particularly striking in this case is that there appears to have never been a client complaint against Respondent filed with the ARDC involving an inability to handle client matters.

With respect to item (2), the Hearing Board assessed the situation correctly. The driving offenses, while serious, do not meet the level of "until further order of the court." So the issue comes down to the videotapes. While Respondent has admitted criminality with respect to this conduct, there was no criminal conviction. It is not the function of the Hearing Board, the Review Board and ultimately the Supreme Court, in a disciplinary case, to convict attorneys of crimes. Even where an attorney has been convicted of a crime, the Supreme Court has ruled that the attorney "is being disciplined not because of his conviction but because of his conduct." In re Crane, 23 Ill.2d 398, 400, 178 N.E.2d 349 (1961); In re Andros, 64 Ill.2d 419, 423-24, 356 N.E.2d 513 (1976).

The purpose of the criminal eavesdropping statute (720 ILCS 5/14-2(a)) is to protect against invasions of privacy and the interceptions of communications that were intended to be private. See People v. Klingenberg, 34 Ill.App.3d 705, 707-08, 339 N.E.2d 456 (2d Dist. 1975). In this regard, the statute presumably seeks to protect the recorded subjects from humiliation and possible blackmail. While Respondent's actions were obviously wrong, it is clear that Respondent never sought to substantively violate the interests sought to be protected by the criminal statute that is, he never released the tapes to the public or to other individuals, and he never identified the women in the tapes, as far as we know. The tapes came to light only because of the accident of Respondent's wife finding and using them as a bargaining chip in a

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divorce. Moreover, Respondent's refusal to name the women in the videotapes, as the Hearing Board ordered, is consistent with his prior conduct in not releasing the tapes to others or in identifying the women.

Concerning the Administrator's request for the names of the women in the tapes and the Hearing Board's order mandating disclosure, I respectfully disagree that such an order should have been entered. As noted, the purpose of the criminal statute is to protect against invasion of privacy. In my judgment, Respondent's refusal to abide by the order helped further the interests sought to be protected.

Had Respondent complied with the Administrator's request and an ARDC investigator thereafter knocked on the doors of these women who had moved on with their lives, the potential for psychological and emotional damage to the women and their families was considerable, while the benefit to the Administrator was negligible. Simply because a lawyer is under investigation by the ARDC with respect to certain violations does not mean that the Administrator, in all cases, must pursue every avenue of other possible unreported professional lapses, without evaluating the damage that might be inflicted on members of the public by engaging in that pursuit. In any event, the Hearing Board gave Respondent the benefit of the doubt on this issue. I find no rationale for the Review Board to take a less forgiving stance than the body that entered the order requiring disclosure.

In my view, Respondent meets all of the criteria for probation, as set forth in Supreme Court Rule 772(a). As required by Rule 772(a)(1) and (2), the record shows that Respondent, as he has in the past, can practice law without harming the public or causing the courts or the profession to fall into disrepute. Moreover, Dr. Henry so testified, assuming Respondent is receiving appropriate treatment, and the Hearing Board accepted his opinion. It is

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not this Board's place to second-guess that finding, just as it is not our place to second-guess Respondent's willingness to follow Dr. Henry's treatment recommendations when the Hearing Board found Respondent credible.

Respondent's ability to practice was established not just by Respondent and Dr. Henry and the lack of client complaints against him, but also by the testimony of two judges before whom he regularly appears. It is also significant that the videotaping incidents took place over ten years ago, have not recurred, and that Respondent has remained sober since December 2005. It is undisputed that Respondent does not suffer from a permanent disability and that his misconduct does not warrant disbarment. Accordingly, all of the requirements of Rule 772(a) are met.

The Supreme Court in In re Jordan, 157 Ill.2d 266, 273-74, 623 N.E. 2d 1372 (1993), explained why, in cases such as this, probation serves to protect the public and to deter an attorney from committing misconduct in the future.

Both the public and the legal profession benefit from our use of probation as a form of attorney discipline under Rule 772. Probation allows clients to be represented by an attorney who is still capable of practicing law, albeit under certain conditions or limitations. As a result, the public benefits because it does not lose the opportunity to be served by able counsel. Moreover, probation permits the attorney to continue his legal practice; the lawyer does not forfeit all gainful employment or valuable experience in his chosen field.

Probation, by its very nature, reminds both the bar and the public that professional misconduct will not be countenanced. By placing conditions on the respondent's term of probation, the errant attorney is constantly reminded that his actions were unethical. The requirement that the respondent account periodically to the ARDC carries a stigma that cannot be ignored or lightly brushed aside. The possibility that a term of suspension will be imposed, if the conditions of probation are not satisfied, also ensures the respondent's compliance with ethical rules. The public nature of the proceedings, and our decision to impose discipline for the attorney's misconduct, send a clear message to both the respondent and the public at large that this court does not and will not tolerate or minimize attorney misconduct in this state.

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These considerations apply in this case and support the Hearing Board's recommendation of a three-year suspension until further order of the court stayed after nine months by three years of probation. The "until further order of the court" proviso does not apply if Respondent successfully completes probation, so the Hearing Board's recommendation is fair and balanced. If Respondent satisfactorily completes probation, he avoids the most severe sanction short of disbarment (Timpone, supra), but if he does not succeed, the until further order of the court provision will automatically apply.

This is a significant sanction that, unlike the majority's recommendation of a two-year suspension until further order of the court, addresses all relevant interests and is not punitive. For all of the foregoing reasons, I would adopt the Hearing Board's recommendation, with the exception that Respondent should be required to initiate all treatment recommended by Dr. Henry as soon as feasible during the initial nine-month period of suspension.

 

Respectfully submitted,

Stuart R. Lefstein

______________________

1 Count IV of the subject disciplinary complaint involved claimed inappropriate flirtatious comments to a female client by Respondent.  No claim was made that Respondent was furnishing inadequate representation and the Complainant continued with Respondent's representation following the alleged comments.  The Hearing Board dismissed Count IV, and the Administrator has not appealed from that dismissal.