In re Patrick Joseph Mitchell
Filed May 22, 2009

Commission No. 08 CH 72

Default Proceeding

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) engaging in conduct prejudicial to the administration of justice and 3) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: 8.4(a)(3) and 8.4(a)(5) of the Illinois Rules of Professional Conduct; and Supreme Court Rule 770.

RECOMMENDATION: Suspension from the practice of law for eighteen months and until further order of the Court.

DATE OF OPINION: May 22, 2009.

HEARING PANEL: Lon M. Richey, Chair, George P. Berbas and Joel A. Kagann.

ADMINISTRATOR'S COUNSEL: Meriel R. Coleman.

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

In the Matter of:

PATRICK JOSEPH MITCHELL,

Attorney-Respondent,

No. 6201639.

Commission No. 08 CH 72

REPORT AND RECOMMENDATION OF THE HEARING BOARD

DEFAULT PROCEEDING

INTRODUCTION

The hearing in this matter was held on January 29, 2009, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC" or "Commission") before a hearing panel consisting of Lon M. Richey, Chair, George P. Berbas, lawyer member, and Joel A. Kagann, public member. The Administrator was represented by Meriel R. Coleman. Respondent, Patrick Joseph Mitchell, did not appear and was not represented by counsel.

PLEADINGS AND PRE-HEARING PROCEEDINGS

On July 29, 2008, the Administrator filed a one-count Complaint pursuant to Illinois Supreme Court Rule 761 alleging misconduct based on Respondent's criminal conviction for unlawful possession of a controlled substance. Respondent was personally served with a copy of the Administrator's Complaint on August 7, 2008.

On September 10, 2008, after Respondent failed to answer or otherwise plead in accordance with the time limits set forth in Commission Rule 231, the Administrator filed a Motion to Deem the Allegations in the Complaint Admitted Pursuant to Commission Rule 236.

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On October 17, 2008, the Chair entered an order granting the Administrator's motion and limiting the evidence at the hearing to matters in aggravation and mitigation.

THE EVIDENCE

The Administrator presented the testimony of Dr. Stafford C. Henry and tendered Exhibits 1-3 which were admitted into evidence. The evidence, along with the admitted allegations in the Complaint, established the following facts.

On August 18, 2006, while driving a car in Pike County, Illinois, Respondent was arrested and charged with various offenses, including possession of cocaine and drug paraphernalia. The matter was docketed as People v. Mitchell, 06 CF 65, in the Circuit Court of the Eighth Judicial Circuit, Pike County, Illinois. (Adm. Ex. 3).

On March 27, 2007, Respondent pled guilty to unlawful possession of a controlled substance in violation of 720 ILCS 570/402(c), a Class 4 felony, and was sentenced by the court to two years of court supervision and fined $1,000 plus court costs. Respondent was also required to submit on a monthly basis to random urine testing for the presence of prohibited drugs and other substances. (Adm. Ex. 3).

On August 4, 2007, Respondent submitted to a random urine test through the Pike County Probation Department and at that time tested positive for cocaine. On August 27, 2007, as a result of the Respondent's positive urine test, the Pike County State's Attorney's Office filed a Petition to Revoke that sought to revoke Respondent's supervision and re-sentence him on the original charge. (Adm. Ex. 3).

On May 12, 2008, at the hearing on the Petition to Revoke, Respondent pled guilty to the Violation of Supervision and was re-sentenced by the court to 45 days of conditional discharge, 60 days in jail, and the reinstatement of all fines and costs. On July 10, 2008, Respondent was successfully discharged from his conditional discharge. (Adm. Ex. 3).

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Evidence Offered in Aggravation and Mitigation

Dr. Stafford C. Henry

Dr. Stafford C. Henry is a psychiatrist, board certified in general psychiatry, forensic psychiatry, and addiction psychiatry. (Tr. 5-12; Adm. Ex. 1). Dr. Henry conducted a psychiatric evaluation of Respondent at the request of the ARDC. In connection with this evaluation and in arriving at his impressions and recommendations for Respondent, Dr. Henry reviewed a variety of written materials and conducted a face-to-face evaluation of Respondent on March 18, 2008, that lasted approximately three hours. (Tr. 14-15; Adm. Ex. 2). After completing his evaluation, Dr. Henry memorialized his findings in a report dated April 10, 2008. (Tr. 21-22; Adm. Ex. 2).

During his meeting with Dr. Henry, Respondent initially discussed a number of losses that he had recently suffered in his life. Approximately one year earlier, Respondent's father had died. Respondent had left Chicago in 2000 to take care of his father who was living in Champaign and was his father's primary caregiver at the time of his death. Earlier that year, Respondent had lost his aunt. In addition, in August of 2006, Respondent's brother had been murdered. Respondent was on his way back from his brother's funeral when his arrest for cocaine possession occurred. In 2006, Respondent had also lost another aunt, an uncle, and his dog. (Tr. 20-21; Adm. Ex. 2).

Earlier in his life, Respondent had also experienced several other significant losses. When Respondent was 21, his mother died and when he was 25, another brother died. Respondent indicated to Dr. Henry that this series of losses made him "numb." (Tr. 20-21; Adm. Ex. 2).

Respondent told Dr. Henry that he has recently been depressed and that he had previously experienced symptoms associated with depression in 2006. In addition, Respondent described significant financial strain. Respondent admitted that he had used cannabis in the early and mid-

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1980's, at times on a daily basis, but reported he had not used cannabis since 1987. With respect to alcohol, Respondent indicated that his use was more longstanding and included some preadolescent and adolescent use, regular and excessive use as an undergraduate, and periodic excessive use during law school. (Tr. 17). Upon admission to the bar, Respondent said that his use of alcohol was not as excessive or regular, with the exception of a period during the 1990's where he used it regularly and excessively. After Respondent relocated to Champaign in 2000, he has rarely used alcohol and last used it in 2006. (Tr. 17-18; Adm. Ex. 2).

Respondent acknowledged using cocaine on one previous occasion, in 1985, but emphatically denied using cocaine at any point near the time of his 2006 arrest or at any other time since. (Tr. 16; Adm. Ex. 2). Respondent told Dr. Henry that at the time of his arrest, he was driving a car that did not belong to him and was returning from his brother's funeral. Respondent said that he was not speeding but was nonetheless stopped for going over the speed limit. He indicated that he immediately advised the officer that he was driving on a suspended license and was then ordered to exit the car. After the arrival of a second officer, a search of the vehicle was conducted that revealed a baggie containing cocaine, a crack pipe, and residue of cocaine on a suit in a suitcase that was in the vehicle. Respondent was then arrested and taken into custody. (Tr. 15-16; Adm. Ex. 2).

Respondent denied to Dr. Henry that the crack pipe was his, but would not say that it belonged to the car's owner. He also denied that the substance found on his jacket was cocaine. However, Respondent did not have an explanation for his arrest and drug related criminal conviction. (Tr. 25-26; Adm. Ex. 2).

Respondent told Dr. Henry that after his arrest, he pled guilty to criminal charges, including possession of a controlled substance and was placed on supervision. As a condition of his supervision, Respondent was required to provide serial urine samples for testing. Respondent

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provided about twelve urine samples, approximately half of which came back positive for cocaine. (Adm. Ex. 2).

Dr. Henry discussed with Respondent the urine screens that came back positive for cocaine. Respondent told Dr. Henry that all of the positive urine toxicology screens were false positives and that he had not used cocaine except for the one time in 1985. Respondent explained that these false positives were due to the fact that he is a genetic variant and his body produces elevated levels of a specific lysozyme called malate dehydrogenase, which causes his urine screens to reflect false positives for cocaine. (Tr. 18; Adm. Ex. 2).

With respect to this explanation, Dr. Henry testified that there is cross reactivity between elevated levels of this enzyme and the antibody that is used to detect metabolites of cocaine. He also stated that there is clinical evidence that indicates that when malate dehydrogenase is excreted in the urine, elevated levels can cause a false positive for cocaine on a drug test. (Tr. 19; Adm. Ex. 2).

Dr. Henry noted, however, that in addition to these positive screens, there were also a number of negative test results. He asked Respondent to explain why, given his elevated levels of this lysozyme, all of his screens were not positive. (Tr. 19). Respondent's explanation for this was that each of the six negative toxicology screens that were returned in the 12-month period was coincident with a time when he had recently given blood. Dr. Henry explained that when an individual gives blood, the levels of this lysozyme excreted in the urine are low. (Tr. 19).

Dr. Henry asked Respondent to provide documentation for the six times in one year that he had given blood, but Respondent said he was unable to do so. (Tr. 20). Dr. Henry then asked Respondent for the name of the facility where he had given blood, thinking that he could contact the facility to obtain confirmation. Dr. Henry testified that when he pressed Respondent on this,

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he was "very evasive" and said that each of these times he gave blood at a mobile unit on the north side of Chicago. (Tr. 20, 25; Adm. Ex. 2).

It was Dr. Henry's opinion, given the totality of the circumstances, that Respondent's explanation for the positive toxicology screens was not plausible. Although Dr. Henry acknowledged that the elevated lysozyme explanation was theoretically possible, if such were the case you would expect all of Respondent's urine screens to be positive. With regard to Respondent's explanation for the six negative screens, Dr. Henry indicated that while this also was theoretically possible, he believed that it was unlikely that someone would give blood six times in one year and that each of those instances would coincide with a negative drug test result. Dr. Henry also noted Respondent's inability to provide documentation to verify that he had given blood on these six occasions. Dr. Henry said that given the ramifications that would flow from the positive test results, including the ARDC matters and possible incarceration in the criminal case, he expected that Respondent would have been able to provide documentation if in fact he had given blood six times during this time period. (Tr. 20, 23-25; Adm. Ex. 2).

In arriving at his opinion, Dr. Henry also considered the other circumstances in the case. This included the fact that Respondent tested positive for the same drug that was found in the car he was driving and his inability to identify the owner or account for the crack pipe that was also discovered in the vehicle. Putting all of this information together, Dr. Henry's opinion was that Respondent was cocaine dependent and that the positive drug tests returned during the period of supervision were the result of him self-administering cocaine. (Tr. 25-26; Adm. Ex. 2).

Based on his evaluation, Dr. Henry diagnosed Respondent as primarily suffering from major depressive disorder and cocaine dependence. He also diagnosed him as having alcohol dependence and cannabis dependence, both in sustained remission. (Tr. 20-21; Adm. Ex. 2). Dr. Henry was of the opinion that Respondent's depression stemmed from the series of significant

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losses he had suffered both recently and earlier in his life. He noted that Respondent was obviously in significant distress, in denial and ashamed, struggling financially and occupationally, and with poor social support. In connection with this diagnosis, Dr. Henry found it clinically significant that Respondent had acknowledged turning to substances in the past in order to deal with loss and that his most recent arrest and subsequent positive drug screens occurred at a time immediately following the death of his brother. (Tr. 20-21; Adm. Ex. 2).

With regard to treatment, Dr. Henry recommended that Respondent immediately engage in a chemical dependency treatment program and suggested several specific treatment programs that Respondent could pursue given his limited means. Completion of that program should be followed by an intensive aftercare program that would include at least a one-year Caduceus contract under the auspices of the Lawyers Assistance Program, urine toxicology screenings for at least a two-year period, regular participation in a 12-step program, and abstinence from cocaine, alcohol and all other non-prescribed mood altering substances. He also recommended that once Respondent is engaged in aftercare and is successfully abstaining from the use of substances, he should engage in a course of psychotherapy to address his grief and loss issues. (Adm. Ex. 2).

As to Respondent's fitness to practice law, Dr. Henry concluded that there was insufficient evidence to form an opinion regarding whether his cocaine use currently rises to the level of incapacitating him from practicing. Given his opinion that Respondent is currently dependent on and actively using cocaine, Dr. Henry believes that Respondent is subject to impairment of judgment and other faculties critical in the practice of law. As a result, Dr. Henry is of the opinion that there currently exists a risk that Respondent would be unable to consistently fulfill his fiduciary obligations and that this risk necessitates that Respondent immediately comply with the treatment recommendations. (Adm. Ex. 2).

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Prior Discipline

Respondent was previously disciplined in 2004 for misconduct that involved conversion and failure to promptly deliver funds to a third party. In that matter, which was resolved based on a petition to impose discipline on consent, Respondent was found to have converted $2,208.19 in funds from a client's personal injury settlement that were supposed to have been paid to the client's medical providers. The underlying personal injury case had been settled in 1996 and the conversion took place in 1999 when Respondent's trust account became overdrawn. In mitigation, it was noted that Respondent's records reflected that he had issued checks to the medical providers in the appropriate amounts at the time of the settlement, but the checks had not been presented for payment. Respondent was suspended for sixty (60) days. In re Patrick Joseph Mitchell, 03 CH 88, M.R. 19440 (September 24, 2004).

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 Complaint allegations 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 engaged in the following misconduct as alleged in the Complaint:

  1. committed a criminal act 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;

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  1. engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  2. 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 Supreme Court Rule 770.

RECOMMENDATION

Having found that Respondent engaged in misconduct, we must determine the appropriate sanction. 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 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).

In this matter Respondent's misconduct arises out of his criminal conviction for possession of a controlled substance. Criminal conduct of this nature is clearly a serious matter that, when engaged in by an attorney, reflects adversely on the entire legal profession. Although Respondent's behavior did not arise out of or involve his practice of law, it nonetheless is an appropriate matter for discipline. See, e.g., In re Scarnavack, 108 Ill.2d 456, 485 N.E.2d 1 (1985) (attorney disciplined for possession of .46 grams of cocaine); In re Lunardi, 127 Ill.2d 413, 537 N.E.2d 767 (1989) (attorney disciplined for possession of less than 30 grams of cocaine

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and other misconduct). As the Court has recognized, attorneys are held to a higher standard of conduct than the general public, particularly with regard to upholding the law. Scarnavack, 108 Ill.2d at 460-61. When an attorney evidences a lack of respect for the law by engaging in criminal behavior, disciplinary action is warranted in order to "protect the public, the courts, and the legal profession." Id.

In addition to the underlying criminal conduct, we also consider the aggravating factors present here. Respondent has been previously disciplined. Prior discipline is normally a significant factor in aggravation that frequently results in the imposition of a harsher sanction than might otherwise be imposed. The weight to be accorded this factor in a particular case depends on a number of considerations, including the nature and similarity of the prior misconduct and the period of time that has passed since it occurred. 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). Where the misconduct in the prior case is similar to the current misconduct, it is considered especially aggravating because it demonstrates that the attorney has failed to reform his behavior in response to past mistakes. Levin, 101 Ill.2d at 541-42.

Here, the prior misconduct involved the conversion of about $2,000 in settlement funds that were supposed to be paid to medical providers. It arose out of Respondent's professional duties as a lawyer and there is no suggestion in the prior matter that the misconduct was related to drug use or other substance abuse by Respondent. Thus, the misconduct in the two cases is not at all similar in nature. We also note, however, that the prior conduct occurred in 1999 and discipline was imposed by the Court in 2004, just two years before the incident that gave rise to these proceedings. Although Respondent cannot be characterized as a repeat offender, it is nonetheless troubling that he again finds himself charged with misconduct so soon after being disciplined by the Court in the prior matter. Based on these considerations, while we accord this

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prior discipline some weight, we do not give it great weight as an aggravating factor in determining discipline here.

Respondent's failure to respond to these charges or to otherwise participate in this proceeding is a significant aggravating factor. The Court has made it clear that attorneys have a duty to cooperate with the Administrator in the disciplinary process. 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 his or her own disciplinary proceeding is normally viewed as evidencing a lack of respect for the process and is considered a serious factor in aggravation. 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).

Here, the record reflects that although Respondent initially cooperated in the investigation and submitted to an evaluation by Dr. Henry before the Complaint was filed, he has not participated in this matter since this proceeding was instituted. While we understand that Respondent is going through a difficult period and may be struggling with some challenging personal matters, his failure to respond in any manner to these charges simply cannot be ignored or excused. In addition, his failure to participate has left us with no evidence to consider in mitigation in arriving at our disciplinary recommendation.

With regard to sanction, the Administrator recommends that Respondent be suspended for eighteen months and until further order of the court. In support of that recommendation, he relies on the following cases.

In In re Economy, 95 SH 679, M.R. 11740 (December 1, 1995), the respondent was found guilty of one count of possession of less than 15 grams of a substance containing cocaine. At the time discipline was imposed, the respondent had enrolled in and successfully completed a comprehensive drug treatment and aftercare program and was regularly attending meetings of

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Narcotics Anonymous. He had also submitted to approximately 25 random drug tests, all of which showed no evidence of illegal drug use. Pursuant to a petition to impose discipline on consent, the respondent was suspended for two years, with the last 12 months of that suspension stayed by probation.

In In re Higgins, 99 CH 13, M.R. 16788 (September 22, 2000), the respondent pled guilty to unlawful possession of a controlled substance for possession of less than 15 grams of a substance containing cocaine. Subsequent to his arrest, he closed his law practice and voluntarily entered into and successfully completed a treatment program to address his addiction to cocaine. The respondent maintained his sobriety for approximately two years. He then suffered a relapse involving the use of alcohol during which he engaged in conduct that resulted in the revocation of his probation and an additional criminal conviction for public indecency. The respondent was suspended for eighteen months and until further order of the court.

In In re Schickedanz, 90 CH 464, M.R. 8317 (May 29, 1992), the respondent was a circuit court judge who was convicted of driving under the influence of alcohol and unlawful possession of less than 15 grams of cocaine. During the time that these events occurred, the respondent presided over felony criminal matters, including those involving possession of controlled substances and driving under the influence. The respondent was suspended for a period of two years, stayed in its entirety by probation. In staying the suspension by probation, the Hearing Board was influenced by the fact that the respondent's criminal conduct appeared to be isolated incidents that were causally related to his alcoholism for which he had received extensive treatment.

In In re Stern, 95 CH 250, M.R. 12813 (September 24, 1996), the respondent engaged in misconduct that included conversion of $1,000 in client funds, neglect of three criminal matters, and failure to refund unearned fees in several of those cases. The evidence presented indicated

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that the respondent's misconduct was directly linked to his abuse of cocaine and alcohol. It also showed that he was not engaged in an adequate treatment program, had recently tested positive for drugs, and had several prior failed treatment attempts. The Court suspended the respondent for 18 months and until further order of the court.

Based on the foregoing authority and the aggravating factors present in this case, we agree that a suspension for 18 months is appropriate. While the suspensions in both Economy and Schickedanz were stayed either all or in part by periods of probation, we note that in both of those cases the respondents had undergone successful treatment for their addictions and were in recovery. The record in this case clearly does not establish any such basis for the imposition of probation here.

In addition to the underlying period of suspension, there are also several factors present here that make it clear that a suspension until further order of the court is also warranted. Dr. Henry's testimony indicates that Respondent currently suffers from cocaine dependence as well as depression and is need of substantial treatment for these disorders. His testimony also indicates that Respondent is in denial with regard to his drug use and has not undertaken any steps to address this problem.

In his interview with Dr. Henry, Respondent not only denied his guilt on the original criminal charges, but also denied any subsequent use of cocaine at or around the time of the positive drug test results. Instead, he suggested that these tests were all false positives as a result of the fact that he normally possesses elevated levels of a particular enzyme that causes false positives in drug screenings. We concur with Dr. Henry's conclusion that Respondent's explanation for these positive drug tests was not plausible.

Although Dr. Henry was uncertain as to whether Respondent's cocaine use incapacitated him from practicing law, it was his opinion that without treatment there was a risk that he would

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be unable to fulfill his fiduciary obligations to clients. While Respondent apparently is not currently practicing, he could resume practice and thereby potentially put clients at risk. Under these circumstances, as in the Stern matter discussed above, where Respondent is suffering from an untreated condition that poses a risk of interfering with his ability to perform his professional obligations, a suspension until further order of the court is appropriate. See also In re Knuckey, 08 SH 36, M.R. 22794 (January 20, 2009)(until further order suspension appropriate where attorney has addiction problem, has not obtained treatment, and is not in remission).

In addition, although Respondent initially cooperated with the Administrator and submitted to an evaluation by Dr. Henry, he has not since participated in this matter. Respondent's absence from these proceedings demonstrates disrespect for the disciplinary process, a lack of professionalism, and raises significant concerns regarding his ongoing ability to meet professional standards of conduct. This provides an additional basis for a suspension until further order of the court in this case. 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).

As a final matter, we note that we are not unsympathetic to the losses suffered by Respondent or to the difficulties he has encountered in his life. The record in this case makes it clear, however, that he has not only disregarded the law by his criminal behavior, he has also disregarded his professional obligations by ignoring these proceedings. Despite the fact that he

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was given a second chance in the criminal case, he failed to take advantage of that opportunity. In addition, he has apparently failed to take any steps to address the underlying problems that led to both the criminal charges and this disciplinary matter. Under these circumstances, leniency is not warranted.

For the foregoing reasons, we recommend that Respondent, Patrick Joseph Mitchell, be suspended for a period of eighteen months and until further order of the court.

Date Entered: May 22, 2009

Lon M. Richey, Chair, with Panel Members George P. Berbas and Joel A. Kagann, concurring.