Filed January 14, 2010
In re Loren Elliotte Friedman
Commission No. 08 CH 32
Synopsis of Review Board Report and Recommendation
The Administrator alleged that Friedman provided false information on his law school application, changed his grades on his law school transcripts and submitted the altered transcripts to prospective employers, and failed to disclose information regarding these activities on his Illinois Character and Fitness questionnaire. Friedman admitted most of the allegations against him but denied committing misconduct.
The Hearing Board found that the Administrator proved all of the misconduct alleged against Friedman with the exception of the charge that his misconduct prejudiced the administration of justice. The Hearing Board recommended that Friedman's license be suspended for three years.
The Administrator challenged the Hearing Board's sanction recommendation, contending that Friedman's misconduct warrants disbarment or a suspension until further order of the court.
The Review Board determined that Friedman should not be allowed to avoid a comprehensive evaluation of his character and fitness and recommended that he be suspended for eighteen months and until further order of the court.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
LOREN ELLIOTTE FRIEDMAN,
Commission No. 08 CH 32
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellant filed a three-count complaint against Respondent-Appellee, Loren Elliotte Friedman, charging him with providing false information on his law school application, altering his law school transcript and submitting it to prospective employers, and failing to disclose information regarding his misconduct on his Illinois Character and Fitness questionnaire. Specifically, the Administrator charged Respondent with three counts of engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule of Professional Conduct 8.4(a)(4); engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and engaging in conduct that 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. In addition, Count III charged Respondent with making a statement of fact in his application to the Bar that he knew was false, in violation of Rule 8.1(a)(1); and failing to disclose a fact necessary to correct a material misapprehension in his application to the Bar, in violation of Rule 8.1(a)(2). Respondent admitted most of the allegations against him but denied committing misconduct.
The Hearing Board found that Respondent committed all of the charged misconduct, except that it did not find any prejudice to the administration of justice. The Hearing Board recommended that Respondent's license be suspended for three years.
This matter comes before the Review Board on the Administrator's exceptions to the Hearing Board's sanction recommendation. The Administrator argues that Respondent's pattern of dishonest conduct warrants disbarment or suspension until further order of the court. Respondent asserts that the Hearing Board's recommended sanction is appropriate.
The relevant facts are not in dispute. They are fully set forth in the Hearing Board's Report and Recommendation and are briefly summarized as follows.
Respondent attended medical school at the University of Illinois for approximately one year, until he was dismissed for poor scholarship on August 30, 1999. Respondent applied to law school at the University of Chicago in December 1999. Despite the fact that the application requested a list of all professional schools that Respondent attended and asked whether he had ever been dismissed or placed on academic probation at any college or university, Respondent did not disclose that he attended and was dismissed from medical school. Respondent admitted that he purposely omitted his medical school attendance information from the application because he thought it would harm his chances of being accepted to law school.
Respondent was admitted to the University of Chicago Law School and began his studies there in August 2000. During his second year of law school, Respondent submitted his resume and an altered law school transcript to ten to fifteen law firms as part of his search for a summer associate position. Respondent's grades during his first year of law school were the equivalent of eight C's and two B's. However, he altered his transcript so it appeared that he had received the equivalent of four A's and six B's. In addition to using the transcript to obtain a
summer associate position, Respondent also used it to obtain a job as a law clerk at the firm of Sheats & Kellogg during the 2001-2002 school year.
The law firm of Sidley Austin LLP (Sidley) offered Respondent a summer associate position. Respondent had given Sidley his altered transcript as part of the interview process. Respondent accepted Sidley's offer and worked there from June 2002 through August 2002. During his employment, Respondent gave Sidley a second altered transcript containing his second-year grades, all of which he had changed.
In addition, Respondent plagiarized a portion of a paper he submitted in his Law, Science and Medicine class in the spring of 2002. His professor, Julie Palmer, reported him to Saul Levmore, the law school's dean of students. As a result, Respondent was required to submit to Levmore all of the papers he wrote for the remainder of his law school career. Respondent told Levmore that he did not intend to plagiarize, but was merely careless. At the time, Levmore did not know that Respondent had altered his transcripts or misrepresented his academic history on his law school application. Levmore would have convened a disciplinary committee to review Respondent's actions had he known of Respondent's other transgressions.
After graduating from law school, Respondent worked as a clerk for a bankruptcy judge. He submitted his true transcript to the judge. Sidley had offered Respondent permanent employment but he did not accept the offer because he knew he had obtained his summer associate position under false pretenses.
Respondent applied for the New York bar in 2003 and was required to submit a copy of his law school application to the bar examiners. Respondent sent a letter to the University of Chicago Law School Dean of Students, Ellen Cosgrove, stating that he was "very surprised to note that [he] had not disclosed in the law school application that I had attended the
University of Illinois Medical School for one academic year." Respondent was licensed in New York on January 25, 2006.
Respondent applied for admission to the Illinois bar on December 25, 2005. In his application, he disclosed his dismissal from medical school and also disclosed that he had omitted this information from his law school application. He did not disclose that he had altered his law school transcripts.
In April 2007, Michael Sweeney, a hiring partner at Sidley, received e-mail correspondence from a legal search firm that was trying to find employment for Respondent. A copy of Respondent's actual law school transcript was attached to the correspondence. Sweeney asked the attorneys who had recruited Respondent why they offered him a job given the grades shown on his transcript. Sweeney then looked at the transcripts that Respondent had submitted to Sidley and, after discussing the discrepancies with his partners, called Respondent. Respondent admitted to Sweeney and John Levi, another Sidley partner, that he had changed his grades.
In a second telephone conversation, Sweeney told Respondent that Sidley would give him the opportunity to report his actions to the Illinois and New York disciplinary authorities instead of Sidley doing so. He also told Respondent that Sidley would report his activities to the University of Chicago Law School. On May 10, 2007, Respondent sent letters to the Illinois and New York bar admission and disciplinary authorities disclosing that he falsified his transcripts.
In mitigation, Respondent presented the testimony of Delaware attorney Megan Cleghorn, New York attorney John Katsanos, and Illinois attorneys Ennedy Rivera and Jacob Hildner. Each witness testified that Respondent has a good reputation for honesty and integrity.
Respondent acknowledged that he did a "terrible thing" and that his actions warrant an appropriate sanction.
The Hearing Board determined that Respondent is sincerely remorseful for his misconduct. Because of this factor, as well as Respondent's positive character evidence, his lack of prior discipline and his cooperation in the proceedings, the Hearing Board determined that neither disbarment nor suspension until further order of the court is necessary and recommended a three-year suspension.
Neither party challenges the Hearing Board's findings of fact and misconduct. The only issue on review is the sanction recommendation.
The Hearing Board's sanction recommendation is advisory. In re Cutright, 233 Ill.2d 474, 490-91, 910 N.E.2d 581 (2009). When making our own recommendation, we seek to achieve consistency and predictability but must consider the unique facts of each case, including any factors in aggravation and mitigation. Cutright, 233 Ill.2d at 491, 910 N.E.2d 581. We bear in mind that the purpose of a sanction is not to punish an attorney, but to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. Cutright, 233 Ill.2d at 491, 910 N.E.2d 581.
The Administrator argues that Respondent's pattern of deceptive behavior requires a more significant sanction than the three-year suspension recommended by the Hearing Board. In support of his contention that disbarment is appropriate, the Administrator relies on In re Parker, 01 SH 103, disbarment on consent, No. M.R. 18152 (March 21, 2006); In re Mitan, 75 Ill.2d 118, 387 N.E.2d 278 (1979); and In re Jordan, 106 Ill.2d 162, 478 N.E.2d 316 (1985).
Like Respondent, Parker altered law school transcripts that he submitted to prospective employers so that they showed higher grades than he actually received. Parker also
put false information on his resume, provided false information on his bar application regarding his military service and discharge, and falsely told his employer that he was involved in a car accident to cover up the fact that he was interviewing with other law firms. Unlike Respondent, Parker did not present any mitigating evidence.
Mitan was found to have made nine material misrepresentations on his bar application. He gave an incorrect birth date and failed to disclose that he had changed his name, been married and divorced, been involved in several civil suits, and been arrested three times and convicted of felony fraud. He also failed to disclose four prior addresses, five prior jobs, his application to another state's bar, and his attendance at a law school other than the one from which he received his degree. Mitan, 75 Ill.2d at 122-23, 387 N.E.2d 278.
The supreme court noted that a bar applicant "has a duty to accurately state matters contained in an application for admission" and determined that Mitan's responses "present[ed] evidence of a calculated effort by the respondent to frustrate any meaningful examination and investigation of the applicant's fitness to practice law." Mitan, 75 Ill.2d at 126, 387 N.E.2d 278. By concealing his prior conviction, Mitan perpetrated a fraud upon the court which justified disbarment. Mitan, 75 Ill.2d at 127, 387 N.E.2d 278.
In Jordan, the supreme court disbarred the respondent for omitting information and making numerous false statements on his bar application. Among other things, Jordan failed to disclose a prior arrest, disciplinary infractions he committed while he was a police officer, his 297 outstanding parking tickets, his default on his student loan, and his bankruptcy petition. The court considered the cumulative effect of Jordan's omissions and misrepresentations, concluding that Jordan "demonstrated a serious lack of concern for the truth." Jordan, 106 Ill.2d at 180, 478 N.E.2d 316
We do not agree with the Administrator that Parker, Mitan, and Jordan support disbarment in this case. Mitan's and Jordan's fraudulent statements and omissions were more extensive than Respondent's and included, among other things, the concealment of a prior criminal conviction and arrest. Respondent's actions were similar to Parker's but, as the Hearing Board notes, Parker was disbarred on consent without a full hearing. We do not know the details of Parker's misconduct or have any information regarding his ability to meet professional standards in the future. We will not use Parker as the basis for recommending the most serious possible sanction without knowing all of the underlying facts. Moreover, unlike Parker, Respondent expressed remorse and submitted sufficient mitigating evidence to persuade the Hearing Board and us that he capable of meeting his ethical obligations in the future. We do not diminish the seriousness of Respondent's misconduct, but do not believe that disbarment is appropriate.
The Administrator argues in the alternative that Respondent's suspension should run until further order of the court, as in In re Connor, 90 CH 117 (Review Board, Sept. 11, 1992), motion to approve and confirm denied, No. M.R. 8711 (March 19, 1993); and In re Chandler, 161 Ill.2d 459, 641 N.E.2d 473 (1994).
Generally, suspensions until further order (UFO) are reserved for cases in which an attorney must "prove that he or she has remedied a significant problem before resuming practice" (In re Bilal, 05 CH 87 (Review Board, Sept. 5, 2008) at 22, petition for leave to file exceptions denied, No. M.R. 22687 (Jan. 20, 2009)) or where the evidence indicates that the attorney is unlikely to adhere to ethical standards in the future (In re Houdek, 113 Ill.2d 323, 497 N.E.2d 1169 (1986)). The supreme court has also imposed suspensions UFO upon attorneys who have not made full disclosures to the Character and Fitness Committee.
The respondent in Connor failed to disclose on his law school application that he had previously attended and been dismissed from another law school for poor scholarship. He also failed to disclose twenty-one prior employers. Connor omitted this information from his bar application as well and also omitted an arrest for criminal damage to property. Connor did not participate in his disciplinary proceedings or appear for his hearing. Connor, 90 CH 117, Review Board Report at 1-8. The Review Board recommended that Connor be suspended for 18 months UFO. The supreme court imposed a suspension of 30 months UFO. Connor, No. M.R. 8711 (March 19, 1993).
The respondent in Chandler submitted false information on a mortgage application. She provided the lender with falsified tax returns, W-2 forms and employment verification forms. Chandler's lender discovered the fraud and commenced a foreclosure action against Chandler. In her bar application, Chandler did not disclose the foreclosure action or the fraud that gave rise to it. She also misstated her social security number and birth name. Chandler, 161 Ill.2d at 463-65, 641 N.E.2d 473. Because Chandler "developed and carried out an elaborate scheme" for her own gain, the supreme court suspended her for three years UFO. Chandler, 161 Ill.2d at 475, 641 N.E.2d 473.
Counsel for the Administrator acknowledged at oral argument that his primary interest is that Respondent's suspension run until further order of the court so that the public is protected and Respondent is not allowed to avoid an evaluation of his character and fitness. We agree that Respondent should be required to establish his character and fitness before he is allowed to resume practice (see In re Gabe, 04 CH 8 (Review Board, May 24, 2007), petition for leave to file exceptions denied, No. M.R. 21734 (Sept. 18, 2007) (a sanction for misconduct
involving efforts to circumvent the Rules of Professional Conduct should "compel [the respondent] to do that which [the respondent] earlier sought to avoid").
Connor and Chandler provide a basis for recommending a suspension UFO, but we believe that Respondent's misconduct is less egregious than either of the respondent's misconduct in those cases and, therefore, dictates a shorter term of suspension. Unlike Connor, Respondent fully participated and cooperated in his disciplinary proceedings and accepted responsibility for his misconduct. Respondent's fraudulent acts were not as extensive as Chandler's. Given all of the relevant circumstances, we do not agree with the Administrator that Respondent's misconduct warrants a suspension of three years UFO.
While reprehensible, Respondent's misconduct did not harm any clients. Neither is there any indication in the record that Respondent acted dishonestly while practicing law in New York. Based on his sincere remorse and his acceptance of responsibility for his actions, it appears that Respondent has learned from his mistakes. In our view, a suspension of eighteen months UFO is sufficient to protect the public, deter others from engaging in similar misconduct, and require Respondent to satisfy his obligation of establishing his character and fitness before resuming practice.
We affirm the Hearing Board's findings of fact and misconduct. We recommend that the license of Respondent, Loren Elliotte Friedman, be suspended for eighteen months and until further order of the court.
Dated: 14 January 2010
Daniel P. Duffy