Filed May 12, 2009
In re Jay Robert Grodner
Commission No. 08 CH 55
Synopsis Of Hearing Board Report And Recommendation
NATURE OF THE CASE: 1) committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 2) failing to act with reasonable diligence and promptness in representing a client; 3) failing to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information; 4) failing to take reasonable steps to avoid foreseeable prejudice to the rights of the client and deliver to the client all papers and property to which the client is entitled; 5) engaging in conduct that is prejudicial to the administration of justice; and 6) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: 1.3; 1.4(a); 1.16(d); 8.4(a)(3); 8.4(a)(5) of the Illinois Rules of Professional Conduct; and Illinois Supreme Court Rule 770.
RECOMMENDATION: One year suspension and until further order of the court.
DATE OF OPINION: May 12, 2009.
HEARING PANEL: Michael L. Bolos, Chair, Robert A. Chapman, and Edward J. Miller.
ADMINISTRATOR'S COUNSEL: Lea S. Black
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
JAY ROBERT GRODNER,
Commission No. 08 CH 55
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on January 15, 2009, at the offices of the Attorney Registration and Disciplinary Commission ("ARDC" or "Commission") in Chicago, Illinois before a Hearing Board Panel consisting of Michael L. Bolos, Chair, Robert A. Chapman, lawyer member, and Edward J. Miller, public member. The Administrator was represented by Lea S. Black. The Respondent, Jay Robert Grodner, did not appear and was not represented by counsel.
PLEADINGS AND PRE-HEARING PROCEEDINGS
On June 23, 2008, the Administrator filed a three-count complaint pursuant to Illinois Supreme Court Rule 753(b) against Respondent alleging that he engaged in certain misconduct. Count I was based on Respondent's criminal conviction for criminal damage to property. Counts II and III alleged misconduct arising out of Respondent's neglect and failure to keep his clients informed in two domestic relations matters. Count II also contained additional allegations concerning Respondent's failure to forward his client's file to his new attorney and to refund unearned fees.
According to the affidavit of Michael R. Hall, Senior Investigator for the ARDC, Respondent's last registered business address was an office suite located at 30 North LaSalle Street, Chicago, Illinois. Through his investigation, Hall determined that that office was occupied by another law firm and although Respondent sometimes used the conference room and occasionally picked up mail there, Respondent did not have an office at that location. On July 31, 2008, the principal attorney in that firm reported to Hall that he had not had contact with Respondent for months.
Respondent's last registered home address was a location in Highland Park, Illinois. During the course of his investigation prior to the filing of the Complaint, Hall had determined that Respondent was no longer living at that address but had relocated to an apartment at 7726 N. Eastlake Terrace in Chicago. On February 11, 2008, Hall had served a subpoena on Respondent at the Eastlake Terrace address and had also met with him there on March 17, 2008, to discuss matters related to the investigation. On May 21, 2008, a letter was sent to Respondent at that address notifying him that the Inquiry Board had voted that a complaint be filed in this matter. Shortly thereafter, that letter was returned to the Commission marked "RETURN TO SENDER, NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD." Hall later went to the Eastlake Terrace address and confirmed that Respondent was no longer living there and also confirmed with the postmaster that Respondent had moved and left no forwarding address.
Hall attempted to contact Respondent at both his home and business telephone numbers as reflected on the master role of attorneys, but both numbers had been disconnected. He also tried to call Respondent on a cell phone number Respondent had previously provided him and at several other possible numbers he obtained for him, but was unable to reach him at any of these.
During the course of his investigation, Hall discovered the name of Respondent's former wife and contacted her on several occasions seeking information regarding Respondent's whereabouts. Although she could not provide this information, she agreed to contact Respondent's family and let them know Hall was looking for him. On August 11, 2008, Hall received a telephone call from Respondent and at that time informed him that a complaint had been voted against him and the Administrator was trying to serve him. Respondent would not provide Hall with an updated address, but did give him an e-mail address and told Hall he could send the materials to him there. On that same day, Hall sent the complaint and other materials to Respondent at the e-mail address provided and asked that Respondent confirm receipt of the documents. Respondent did not provide the requested confirmation or otherwise contact Hall in any manner in response to this communication.
On September 9, 2008, Hall obtained a new address for Respondent in New Mexico that was reported to the Cook County State's Attorney's Office as a condition of Respondent's supervision in a criminal matter. Hall sent the materials to the sheriff's office at that location and requested that it attempt to serve Respondent. On October 24, 2008, the materials were returned by the sheriff with a record of at least eight unsuccessful attempts to serve Respondent.
On October 31, 2008, the Administrator's Complaint and other materials were served on Respondent by way of substitute service on the Clerk of the Supreme Court of Illinois pursuant to Supreme Court Rule 765.
On December 8, 2008, based on Respondent's failure to answer or otherwise respond to the complaint or to appear for his deposition, the Administrator filed a Motion to Deem the Allegations of the Rule 753(b) Complaint Admitted Pursuant to Commission Rule 236 and a Motion to Bar Respondent from Testifying at Hearing. On December 15, 2008, the Hearing
Panel Chair granted both of these motions and entered an order deeming the complaint allegations admitted and barring the Respondent from testifying. After Respondent failed to file a report pursuant to Commission Rule 253 and failed to comply with the Administrator's First Notice to Produce, the Administrator subsequently filed a Motion to Bar Respondent from Presenting Witnesses at Hearing and a Motion to Bar Respondent from Presenting Documents at Hearing. On January 8, 2009, the Chair entered an order granting both of these motions.
The Administrator presented the testimony of Steve Studzinski and Deborah Schaff and tendered Exhibits 1-4 which were admitted into evidence. The evidence, along with the admitted allegations in the Complaint, established the following facts.
United States Marine Corps Sergeant Michael McNulty owned a 2002 BMW automobile that had U.S. Marine Corps license plates and a U.S. Marine Corps bumper sticker. On December 1, 2007, Respondent intentionally scraped a metal object along the passenger side of Sgt. McNulty's vehicle while it was parked. At that same time, Respondent made the following remark to Sgt. McNulty: "Just because you are in the military you don't run the roost!" Respondent's actions caused approximately $2,500 in damage to Sgt. McNulty's vehicle.
Respondent was subsequently arrested in connection with this incident and charged with criminal damage to property in violation of 720 ILCS 5.0/21-1-1-A. People of the State of Illinois v. Jay Grodner, Cook County Circuit Court Docket No. 071318441. On January 18, 2008, in a proceeding before the Honorable William P. O'Malley, Respondent stipulated to a set of facts, including the fact that he "knowingly damaged" Sgt. McNulty's vehicle when he "without consent rubbed along the passenger side of the vehicle causing scratches." Based on
the stipulation, Judge O'Malley found Respondent guilty of criminal damage to property, a Class A Misdemeanor. Respondent was sentenced to one year of supervision, ordered to pay $600 in restitution, and required to complete 30 hours of community service. (Adm.Ex. 2).
In 2004, Steve Studzinski ("Studzinski"), a resident of Peoria, Arizona, was a party to an Illinois domestic relations proceeding then pending in the Circuit Court of Cook County entitled Steve Studzinski v. Tina Studzinski, 99 D 345 ("Studzinski Post-Divorce proceeding"). On July 26, 2004, after Mr. Studzinski did not appear at a hearing in that matter, the Honorable Karen G. Shields ordered him to pay $3,032.29 in child support arrearage and allowed his ex-wife to file a petition for attorney's fees. Judge Shields also entered a rule against Mr. Studzinski, returnable October 7, 2007, for failure to comply with job search mandates. On July 29, 2004, Mr. Studzinski's ex-wife filed a petition for attorney's fees seeking a total amount of $3,518.78. A hearing on that petition was scheduled for October 7, 2004.
Mr. Studzinski testified that he believed that the orders entered by the court concerning child support and attorneys fees were based on erroneous information and sought to challenge those orders. On August 5, 2004, Respondent agreed to represent Mr. Studzinski in the Studzinski Post-Divorce proceeding, including filing a motion to vacate the July 26, 2004 order. (Tr. 13). Respondent and Mr. Studzinski subsequently entered into a written fee agreement whereby Mr. Studzinski agreed to pay Respondent $350 per hour and to provide an initial retainer in the amount of $5,000. Respondent received the $5,000 retainer shortly thereafter.
At the time he retained Respondent, Mr. Studzinski informed him of the July 26, 2004 order and the October 7, 2004 court date. He also informed Respondent that, according to the legend on the back of the order, any motion to vacate had to be filed within 20 days, which
would have been on or before August 15, 2004. As of August 15, 2004, Respondent had not filed any motion to vacate the July 26, 2004 order.
Mr. Studzinski testified that when he retained Respondent, he specifically discussed the deadline set forth in the order and expressed his concern to Respondent about the need to get the motion challenging the order filed on time. (Tr. 13). According to Mr. Studzinski, Respondent advised him not to worry about it and told him that he knew the judge very well and that the time limit did not really apply as long as they worked something out. Mr. Studzinski was not familiar with Illinois law regarding post-divorce matters and presumed that since Respondent was the attorney, he would know better what to do. In subsequent telephone conversations, Respondent led Mr. Studzinski to believe that he had "some kind of deal worked out with the other attorney" and that this was all "going to go away." (Tr.13-14).
On August 25, 2004, Respondent filed his appearance on behalf of Mr. Studzinski in the Studzinski Post-Divorce proceeding. On October 7, 2004, Respondent appeared without Mr. Studzinski at the hearing on his ex-wife's petition for attorney's fees and the matter was continued by agreement until December 2, 2004. On December 2, 2004, and again on January 5, 2005, the hearing on the petition for attorney's fees was continued two additional times by agreement.
On May 9, 2005, Respondent appeared without Mr. Studzinski at a hearing on the petition for attorney's fees and a pending motion to increase child support. At that time, Judge Shields increased the amount of Mr. Studzinski's monthly child support payments based on his pay stubs and again continued the hearing on the petition for attorney's fees until June 23, 2005.
On June 10, 2005, Respondent filed a motion to reconsider the court's May 9, 2005 order. That motion asked that the proofs be reopened and the issues of child support be
arbitrated or mediated. That motion was scheduled to be heard on June 23, 2005. Prior to that date, Respondent contacted Mr. Studzinski and asked him to travel to Chicago to be present for the June 23, 2005 hearing.
Mr. Studzinski complied with Respondent's request and travelled to Chicago from Arizona and appeared with Respondent at the June 23, 2005 hearing. (Tr. 14-15). On that date, the motion to reconsider the May 9, 2005 order was denied because Mr. Studzinski had been ordered to pay child support on June 26, 2004, and Respondent had not filed a motion to vacate that order within the applicable 20-day period. Mr. Studzinski testified that in denying the motion, Judge Shields told Respondent that he had "missed the window" for challenging that order "a long time ago." (Tr. 14-15).
At the June 23, 2005 hearing, Judge Shields also granted a motion by Respondent to strike the petition for attorney's fees that had been filed by Mr. Studzinski's ex-wife and gave her until July 7, 2005 to file an amended petition. Judge Shields set that matter for hearing on July 27, 2005. Respondent received notice of the hearing date at that time or shortly thereafter.
On July 27, 2005, neither Respondent nor Mr. Studzinski appeared at the scheduled hearing on the petition for attorney's fees. During that hearing, Mr. Studzinski's ex-wife submitted an amended petition which increased the amount of fees she sought from $3,518.78 to $5,600 to reflect the fees incurred since the original petition was filed. Judge Shields entered an order granting the amended petition in the amount of $5,600. (Adm.Ex. 4).
Between July 27, 2005, and August 3, 2005, Mr. Studzinski attempted to contact Respondent at least seven times by telephone for information about the status of his case. Respondent received his messages, but did not return any of his calls. On August 3, 2005, Respondent faxed a copy of Judge Shields's July 27, 2005 order to Mr. Studzinski. The order
showed that Respondent had not appeared and that Mr. Studzinski had been ordered to pay $5,600 for his ex-wife's attorney's fees. Respondent then suggested to Mr. Studzinski that he hire an appellate attorney and provided no further services to assist Mr. Studzinski. (Tr. 16-17).
In August 2005, Mr. Studzinski hired another attorney to represent him and requested that Respondent forward his file to his new attorney. Respondent did not provide the new attorney with a copy of his file as requested.
Respondent did not perform sufficient work in the Studzinski Post-Divorce proceeding to earn the $5,000 fee Mr. Studzinski paid to him. Respondent has not refunded any of that $5,000 fee and has not provided Mr. Studzinski with a billing statement.
On March 12, 1996, the Honorable Henry C. Tonigan, III, entered a judgment that dissolved the marriage between Deborah L. Schaff ("Deborah") and Walter C. Schaff ("Walter") in a case entitled In re the Marriage of Schaff, Lake County Circuit Court Case No. 95 D 2. On May 27, 2004, attorney Raymond J. Kloss filed a petition on Deborah's behalf seeking to modify certain provisions of the judgment entered in the Schaff divorce case ("Schaff Post-Divorce proceeding"). In August of 2004, Respondent agreed to represent Deborah in relation to the petition to modify the judgment. (Tr. 23). Because Deborah was disabled, Respondent agreed to petition the court to have Walter pay Respondent's attorney's fees.
On December 1, 2004, the court granted Respondent leave to substitute for Kloss as attorney for Deborah. The court also allowed another attorney, Charles J. Fleck ("Fleck"), to enter his appearance as additional counsel for Deborah on a pro bono basis. On December 1, 2004, Respondent filed a Financial Affidavit on Deborah's behalf and a petition seeking interim prospective attorney's fees from Walter. On January 5, 2005, on Respondent's motion, the court
entered an order awarding Respondent $6,000 as interim attorney's fees from Walter. Respondent received the $6,000 shortly thereafter.
On March 1, 2006, while Respondent was present in court, the court entered an order in the Schaff Post-Divorce proceeding that required the parties to update discovery documents and financial affidavits, schedule depositions within 45 days, and exchange lists of fact witnesses and expert witnesses. The order also set a case management conference for May 2, 2006. Respondent received notice of that order shortly after it was entered.
At no time prior to May 24, 2006, did Respondent comply with any of the provisions of the court's March 1, 2006 order. On March 28, 2006, Fleck was granted leave to withdraw as additional counsel for Deborah on the basis that additional counsel was no longer needed.
On April 14, 2006, counsel for Walter served a Notice of Deposition on Respondent notifying him that he would take Deborah's deposition on April 25, 2006, at 2:00 p.m. Respondent received the notice shortly thereafter. Respondent did not notify Deborah of the notice of her deposition. On April 25, 2006, neither Respondent nor Deborah appeared for the deposition. Respondent did not contact Walter's counsel to reschedule the deposition or to request a continuance. (Adm.Ex. 3).
On May 2, 2006, Respondent did not appear at the case management conference on behalf of Deborah. As of that date, Respondent had not complied with the provisions of the court's March 1, 2006 order. On May 2, 2006, the court granted Walter's counsel leave to file a "Petition for Rule to Show Cause, Motion to Compel Deposition and for Sanctions" and set the matter for hearing on May 24, 2006. (Adm.Ex. 3).
At some time in 2005, during the course of reviewing materials related to the case that had been provided to her by Respondent, Deborah learned that her ex-husband had filed a motion
for sanctions against her and that she was in danger of being held in contempt for failure to appear at her deposition and comply with certain other discovery requests. (Tr.23-25). Prior to discovering that this petition had been filed, Deborah was not aware that she was supposed to appear for her deposition, file financial disclosures, or comply with these discovery requests because Respondent had not told her that she had to do any of this. (Tr. 24). After learning about her ex-husband's petition, Deborah contacted Respondent, told him she would immediately begin working on the matter and had everything completed in a week. (Tr. 25).
On May 24, 2006, Walter's petition and motion were rendered moot due to Respondent's subsequent compliance with requests to update discovery documents and financial affidavits and Deborah's appearance for her ordered deposition.
Evidence Offered in Aggravation and Mitigation
Mr. Studzinski testified that Respondent's mishandling of his post-divorce proceeding has put a lot of stress on him and his family, both financially and emotionally. (Tr. 18). He had to hire another attorney to straighten the matter out and said he is still "digging out of the mess" left by Respondent a number of years later. (Tr. 17). Including the amounts he had to pay his ex-wife and the increased attorney's fees, Mr. Studzinski estimated that the matter has probably cost him about $20,000. Mr. Studzinski is a deputy sheriff in Maricopa County, Arizona and works with the courts on a regular basis. Respondent's poor representation or lack of representation of him has left a "bitter taste" in his mouth. (Tr. 17).
Mr. Studzinski testified that he tried hard to work with Respondent. Even after all that went wrong in the case he told Respondent that if he would have given him back his $5,000, he would have gone on his way and written it off as a bad experience. (Tr. 17-18). After thinking
about it, however, he decided that what Respondent had done to him and his family was not right and he decided to file the complaint with the ARDC. (Adm. Ex. 4; Tr. 18).
Deborah Schaff testified that her experience with Respondent caused her a great amount of stress and affected her financially, physically, and emotionally. (Tr. 26). She said that learning that a motion for sanctions had been filed against her in her divorce case based upon her failure to do something she did not know she was supposed to do had a horrendous affect on her physically. (Tr. 25). She is disabled and is not well and having to suddenly start working on the discovery and get it done in a hurry caused her health to rapidly decline. (Tr. 25). She said that when you are poor and disabled it is hard to find a lawyer and you are at the mercy of any lawyer that is willing to take your case. Although she was grateful at the beginning for finally finding a lawyer to handle the matter, it was nothing but constant stress and constant last minute work with Respondent. (Tr. 26).
In addition to his failure to tell her about the deposition and other discovery, Ms. Schaff also testified that she felt Respondent had acted unprofessionally towards her in other ways during the time that he had represented her. This included telling her that he wasn't ready and needed help when the case was scheduled for trial, getting angry with her for not settling her case, and blaming her and the trial for his own health problems. (Tr. 27). She also testified that on one occasion Respondent had called her up and asked her for her pain pills. (Tr. 27).
Respondent was previously censured by the Court in 1983 for misconduct that occurred in 1978 in a matter entitled In re Armentrout, 99 Ill.2d 242, 457 N.E.2d 1262 (1983). That case, which involved a number of different respondents, arose out of a scheme orchestrated by Eugene
Armentrout, then the State's Attorney of Kane County, to gather the signatures necessary to place a state-wide advisory referendum on the ballot in an upcoming election by forging voters' signatures on the required petitions. The plan was implemented through a procedure referred to as "roundtabling," whereby a group of people gathers and circulates petitions to one another and, using names obtained from the phone book or voter registration lists, forges signatures on the petitions. Respondent was one of a number of attorneys who took part in several of these roundtabling sessions.
At the time that this misconduct took place, Respondent was 26 years old and had been licensed to practice law for only three months. He was working as an assistant state's attorney in Kane County for Armentrout and was recruited to participate in the scheme by another assistant state's attorney who was acting at Armentrout's direction. In a criminal proceeding against the various parties involved, Respondent pled guilty to one count of violation of the Election Code. He was sentenced to 6 months of supervision, fined $1,000 and later had his record expunged.
In the disciplinary proceeding, all of the attorneys involved, including Respondent, were found to have engaged in conduct involving fraud, dishonesty, deceit and misrepresentation as a result of their unlawful activities. Although Armentrout and the assistant state's attorney who organized the roundtabling received harsher sanctions, Respondent and the other participants received only censures for their misconduct. In imposing this discipline, the Supreme Court noted that all of these other attorneys had acknowledged the fraudulent and dishonest nature of their acts and had conceded that their actions had damaged the reputation of the legal profession and brought it into disrepute. In Respondent's case, although the Court found it aggravating that the misconduct occurred while he was an assistant state's attorney, it also found a number of
significant mitigating factors, including the Respondent's age and inexperience, the fact that he did not organize any of the sessions, and the fact that he had already pled guilty in the criminal proceeding and paid a substantial fine. It also found it significant that his participation in the scheme had resulted from the request of his supervisors and recognized that he was undoubtedly influenced by their approval of the project. The Court noted that, while this fact did not excuse his participation in an obviously improper activity, it was a substantial consideration.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. Illinois Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill.2d 163, 168, 710 N.E.2d 390 (1999). Clear and convincing evidence constitutes a high level of certainty which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill.2d 477, 484-85, 577 N.E.2d 762 (1991).
Having considered the Complaint, the order deeming the allegations in the Complaint admitted, and the evidence presented by the Administrator at the hearing, we find by clear and convincing evidence that Respondent engaged in the acts alleged and committed the following misconduct as charged in the Complaint:
committed a criminal act in violation of 720 ILCS 5.0/21-1-1-A 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 ("Rules") (Count I);
failed to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3 of the Rules (Counts II and III);
failed to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information in violation of Rule 1.4(a) of the Rules (Counts II and III);
failed to take reasonable steps to avoid foreseeable prejudice to the rights of the client and deliver to the client all papers and property to which the client is entitled in violation of Rule 1.16(d) of the Rules (Count II);
engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Rules (Counts I, II and III); and
engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Illinois Supreme Court Rule 770 (Counts I, II and III).
Having found that Respondent engaged in misconduct, we must determine appropriate discipline. In making this recommendation, we take into account that the goal of the disciplinary process is not to punish the Respondent, but to safeguard the public, maintain the integrity of the legal profession, and protect the administration of justice. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). We also consider the nature of the misconduct, the aggravating and mitigating factors, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. In re Gorecki, 208 Ill.2d 350, 360-61, 802 N.E.2d 1194 (2003). Although each case is unique and must be resolved in light of its own facts and circumstances, in order to ensure predictability and fairness we generally strive to impose sanctions that are consistent with those imposed in cases involving comparable misconduct. In re Howard, 188 Ill.2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill.2d 459, 472, 641 N.E.2d 473 (1994).
With respect to appropriate discipline, the Administrator suggests that the facts and circumstances here warrant that Respondent be suspended for one year and until further order of the court. In support of this recommendation, the Administrator relies on In re Houdek, 113 Ill.2d 323, 497 N.E.2d 1169 (1986), In re Czarnik, 07 CH 15, M.R. 22203 (March 17, 2008), In
re Goldman, 02 CH 54, M.R. 19089 (January 20, 2004), and In re Fitzgerald, 98 CH 114, M.R. 19376 (May 17, 2004).
In Houdek, the Supreme Court suspended an attorney for two years and until further order of the court for misconduct that included commingling and converting a small amount of client funds, neglecting a legal matter, making misrepresentations to a client, and submitting fabricated evidence to the Commission. Although the original misconduct involved a single case and a small amount of money, the Court was troubled by the fact that the respondent had not dealt with the situation in an honest and straight forward manner but had instead engaged in a series of inappropriate behavior, including delaying answering, answering untruthfully with fabricated evidence, failing to appear until suspended, testifying falsely before the Commission, and failing to make restitution. The Court noted that "[s]uch behavior does not inspire confidence that the respondent is able to conform his conduct to professional standards." 113 Ill.2d at 327. After concluding that the neglect, misrepresentations and other misconduct warranted a 24-month suspension, the Court imposed the until further order of court restriction based on the respondent's failure to make restitution and lack of any evidence that he is willing or able to meet professional standards of conduct in the future.
In Czarnik, where discipline was imposed on consent, the respondent was suspended for one year and until further order of the court for misconduct stemming from two criminal convictions for retail theft. In the disciplinary proceeding, it was noted in mitigation that the respondent had not been previously disciplined, had self-reported his convictions, and had completed the community service and other court-ordered requirements of his criminal sentences. The respondent's underlying misconduct, coupled with an untreated psychiatric condition, was the basis for the suspension for one year and until further order of the court.
In Goldman, the respondent was suspended for one year and until further order of the court for misconduct that included the neglect of two divorce matters. In addition, the respondent initially provided the Commission with false information regarding the matter, made misrepresentations to his clients concerning the status of their cases, failed to refund unearned fees in one case, and made restitution to the other client only after a complaint was filed with the Commission. Respondent failed to cooperate with the Administrator's investigation and did not appear or participate in the disciplinary process.
In Fitzgerald, the respondent received a six month suspension for misconduct that stemmed from two felony convictions for criminal damage to property and aggravated battery. In the first incident, the respondent unlawfully forced his way into his ex-girlfriend's home and caused extensive damage to her property. In the second incident, the respondent attacked a man after he left his ex-girlfriend's home by striking him with a hammer. The respondent participated in his disciplinary proceedings and presented evidence that his behavior was related to his abuse of alcohol and a personality disorder, which did not affect his ability to perform his obligations as an attorney.
In this matter, Respondent neglected two client matters and engaged in criminal conduct. Although Respondent's criminal conviction did not arise out of Respondent's law practice, criminal behavior such as this by an attorney clearly damages the profession and warrants some measure of discipline. It is well established that attorneys are held to a higher standard of conduct than the general public, particularly with regard to upholding the law. In re Scarnavack, 108 Ill.2d 456, 460-61, 485 N.E.2d 1, 3 (1985); In re Lunardi, 127 Ill.2d 413, 421, 537 N.E.2d 767, 770 (1989). As the Court observed in Scarnavack, "[e]very lawyer owes a solemn duty to encourage respect for the law" and "obedience to the law exemplifies respect for it." Id. at 460.
When an attorney disregards the law by engaging in criminal behavior, this evidences a lack of respect for the law and disciplinary action is warranted in order to "protect the public, the courts, and the legal profession." Scarnavack, 108 Ill.2d at 460-61.
In addition to the underlying misconduct, there are also several aggravating factors present here. First, Respondent's misconduct is aggravated by the harm it caused to his clients and others. See In re Saladino, 71 Ill.2d 263, 276, 375 N.E.2d 102,107 (1978)(recognizing that discipline should be should be closely linked to the harm caused or unreasonable risk created by the attorney's lack of care). Respondent's criminal conduct clearly harmed Sgt. McNulty by causing costly damage to his vehicle.
Respondent's clients were also clearly hurt by his neglect and mishandling of their cases. Mr. Studzinski suffered substantial prejudice in the underlying legal matter as a result of Respondent's neglect because he not only lost his ability to attack the original child support order, he also lost the opportunity to challenge his ex-wife's fee petition and ended up having to pay her significantly more in fees than had originally been sought. He also paid Respondent $5,000 for services that were of questionable value and ultimately had to hire and pay a new attorney to take over the case. Moreover, in addition to the financial impact of Respondent's actions, the experience also obviously caused him needless anxiety and affected him and his family emotionally. With respect to Deborah Schaff, although there is no indication that she suffered any actual prejudice in her case, Respondent's neglect and failure to keep her informed exposed her to an unnecessary risk of harm, caused her to suffer anxiety and stress, and negatively affected her physical health.
We also note Respondent's prior discipline that arose out of his participation in 1978 in an illegal scheme to falsify signatures on a petition to place a referendum on the ballot in an
election. Prior discipline is normally a significant aggravating factor that frequently results in the imposition of a harsher sanction than might otherwise be imposed. The weight to be accorded this factor, however, depends on a number of important considerations, including the nature and similarity of the prior misconduct and the period of time that has passed between it and the current misconduct. See In re Levin, 101 Ill.2d 535, 541, 463 N.E.2d 715 (1984); In re Hays, 05 SH 3, M.R.21050 (September 21, 2006).
In this case, Respondent's prior misconduct took place approximately 30 years ago at a time when he was a young attorney and had only been licensed for a short period of time. Apart from the incidents at issue in these proceedings, there is no indication that Respondent has engaged in any other misconduct in the many years that have passed since then. Although that misconduct, which involved forgery, violation of election law, and a criminal prosecution, was undoubtedly very serious, it is also apparent from the Court's opinion as well as the discipline imposed that Respondent's involvement in the wrongdoing was mitigated to a significant extent by the particular facts and circumstances present there. Furthermore, although both the prior case and this matter involve some criminal conduct, the nature of the misconduct in the two cases is otherwise dissimilar. Based on these considerations, especially the lengthy period of time that has elapsed since the prior matter, we do not attach significant weight to the Respondent's prior misconduct in determining an appropriate sanction here.
Respondent's failure to participate in these proceedings or respond to the charges in any manner is also a significant factor in aggravation here. The Court has made it clear that attorneys have a duty to cooperate with the Administrator in disciplinary proceedings. See In re Smith, 168 Ill.2d 269, 296, 659 N.E.2d 896 (1995). An attorney's failure to cooperate with or participate in the disciplinary process has been found to be indicative of indifference toward and
even contempt for disciplinary procedures and to demonstrate a complete want of professional responsibility. In re Brody, 65 Ill.2d 152, 156, 357 N.E.2d 498, 500 (1976). Accordingly, such behavior has generally been treated as a serious aggravating factor in determining sanction. See In re Samuels, 126 Ill.2d 509, 531, 535 N.E.2d 808 (1989); In re Houdek, 113 Ill.2d 323, 326-27, 497 N.E.2d 1169 (1986); In re Brody, 65 Ill.2d 152, 156, 357 N.E.2d 498 (1976); In re Roytenberg, 04 CH 48, M.R. 20155 (May 20, 2005).
Although Respondent was clearly aware of the existence of these proceedings he elected to totally ignore this process and has failed to respond to the charges or to address them in any manner. Through his deliberate disregard of these proceedings, Respondent has displayed not only a lack of professionalism and disrespect for the disciplinary process, but also complete lack of concern for his clients and the others who were affected by his actions. Moreover, since Respondent did not appear or present any evidence on his own behalf, the record in this case is completely devoid of any mitigation that can be taken into account in determining sanction.
Accordingly, taking into account the nature of the misconduct, the significant aggravating factors present, and the lack of any mitigating evidence we believe that a suspension for one year and until further order of the court, as suggested by the Administrator, is appropriate discipline in this case. We find support for this recommendation in both Czarnick and Goldman, where this same sanction was imposed. Although not identical, the criminal conduct engaged in by Respondent which led to a misdemeanor conviction for criminal damage to property is roughly comparable to the misconduct in Czarnik, which involved misdemeanor criminal convictions for retail theft. Although Czarnik is arguably distinguishable in the sense that it involved two separate instances of criminal conduct and two separate criminal convictions, in this case Respondent also engaged in additional misconduct arising out of his neglect of the divorce
matters. The misconduct in Goldman, which involved neglect of two separate divorce matters as well as a failure to refund fees, was very similar to Respondent's misconduct here in the Studzinski and Schaff divorce matters. Although there was no separate criminal conduct in Goldman as there is here, there was also additional more serious misconduct there that included misrepresentations to clients and providing false information to the Commission. While not identical, we believe that on balance the misconduct in the two cases is sufficiently similar to warrant comparable discipline.
We do not find the Fitzgerald case particularly instructive. The criminal conduct in that case which led to two felony criminal convictions and a period of incarceration was clearly far more serious than the criminal conduct at issue here. The respondent in Fitzgerald participated in the disciplinary proceedings and presented substantial mitigation. It was established that the respondent's misconduct and alcohol use had not affected his ability to perform his professional obligations as an attorney and there was no evidence that he was unfit to practice. The "unique facts and circumstances" of that case, which are not present here, clearly factored heavily into the determination of the sanction in that case and distinguish it from this matter. See Fitzgerald, Hearing Board Report at 24.
We also note that Goldman in particular provides support for our recommendation that Respondent's suspension be until further order of the court. Like Respondent, the attorney in Goldman failed to appear at the disciplinary hearing or to otherwise participate in the process. This case, as well as others like it, make it clear that when an attorney engages in misconduct and then compounds that by refusing to answer the charges or participate in the process, he should be suspended from the practice of law and required to make some affirmative showing that he has reformed his behavior and is willing and able to meet professional standards of conduct in the
future before being readmitted. See also In re Houdek, 113 Ill.2d 323, 497 N.E.2d 1169 (1986)(until further order of the court restriction appropriate where there is a lack of evidence that respondent is willing or able to meet professional standards of conduct in the future); In re Levinson, 71 Ill.2d 486, 376 N.E.2d 998 (1978)(suspension until further order of the court imposed where respondent displays extraordinary disregard for the disciplinary proceedings instituted against him); In re Lasenby, 05 CH 53, M.R. 20924 (September 20, 2006)(until further order of court suspension appropriate where respondent displays lack of professional responsibility by failing to participate in disciplinary process).
In this case, despite the fact that Respondent is aware of the existence and the nature of these proceedings, he has chosen to ignore them. As a result, he has displayed disrespect for the process, a lack of professionalism, and an apparent indifference to his own professional fate. A suspension until further order of the court is clearly warranted under these circumstances.
For the foregoing reasons, we recommend that Respondent, Jay Robert Grodner, be suspended for a period of one year and until further order of the court.
Date Entered: May 12, 2009
|Michael L. Bolos, Chair, with Panel Members Robert A. Chapman and Edward J. Miller, concurring.|