Filed June 23, 2010
In re Melvin H. Hoffman
Commission No. 08 SH 65
Synopsis of Review Board Report and Recommendation
The Administrator charged Hoffman with making statements regarding the qualifications and integrity of a circuit court judge and an administrative law judge with knowledge that the statements were false or with reckless disregard for their truth or falsity. Hoffman was also charged with making an improper statement to another lawyer related to the other lawyer's religion. Specifically, Hoffman was charged with violating Rules of Professional Conduct 8.2(a), 4.4, and 8.4(a)(5), as well as Supreme Court Rule 770. Hoffman admitted some of the factual allegations against him, denied others, and denied all allegations of misconduct.
The Hearing Board found that Hoffman committed all of the charged misconduct. The majority of the Hearing Board recommended that Hoffman be suspended for three years, with the last nineteen months of the suspension stayed by twenty-four months of probation. The Hearing Board Chair recommended that Hoffman receive a suspension of three years and until further order of the court, with the last twenty-four months of the suspension stayed by twenty-four months of probation.
Hoffman argued on review that (1) his due process rights were violated when the Administrator reopened closed investigations and filed charges based on the reopened investigations; (2) the Rules of Professional Conduct as applied in this case are unconstitutionally vague; (3) Hoffman's statements were protected under the First Amendment; (4) the Hearing Board's findings were against the manifest weight of the evidence; (5) the Hearing Board made evidentiary errors; and (6) the Hearing Board's sanction recommendation is too severe.
The Review Board determined that there was no violation of Hoffman's due process or First Amendment rights and rejected the argument that the Rules of Professional Conduct are void for vagueness. The Review Board affirmed the Hearing Board's findings of fact and misconduct except that it reversed the finding that Hoffman's improper remarks to the administrative law judge prejudiced the administration of justice. The Review Board further found that the Hearing Board Chair's evidentiary rulings were not an abuse of discretion.
The Review Board concluded that Hoffman is not an appropriate candidate for probation and recommended that he receive a suspension of six months and until further order of the court.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
MELVIN H. HOFFMAN,
Commission No. 08 SH 65
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This case involves allegedly improper statements that Respondent-Appellant, Melvin H. Hoffman, made to a circuit court judge, an administrative law judge for the Department of Children and Family Services (DCFS), and another lawyer. The Administrator-Appellee filed a three-count amended complaint against Respondent, charging him with making statements that he knew were false or with reckless disregard for their truth or falsity concerning the qualifications or integrity of a judge and an adjudicative officer, in violation of Rule of Professional Conduct 8.2(a) (Counts I-II); while representing a client, using means having no substantial purpose other than to embarrass, delay or burden a third person, in violation of Rule 4.4 (Counts I-III); and engaging in conduct that prejudices the administration of justice or tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 770 (Counts I-III). Respondent admitted some of the Administrator's allegations, denied others, and denied all allegations of misconduct.
Prior to the hearing, Respondent moved to dismiss Counts II and III on the ground that before the complaint was filed the Administrator had closed the investigations pertaining to
those charges and, in the case of the misconduct alleged in Count II, expunged the records. The Hearing Board denied Respondent's motion to dismiss.
The Hearing Board found that Respondent committed all of the charged misconduct. The majority of the Hearing Board recommended that Respondent's license be suspended for three (3) years, with the last nineteen (19) months stayed by twenty-four (24) months of probation. The Hearing Board Chair dissented with respect to the sanction and recommended that Respondent be suspended for three (3) years and until further order of the court, with the last twenty-four (24) months of the suspension stayed by twenty-four (24) months of probation.
On review, Respondent contends that (1) the Administrator's reopening of closed investigations and subsequent filing of charges based on the reopened investigations violates Respondent's due process rights; (2) the Rules of Professional Conduct as applied in this case are unconstitutionally vague; (3) Respondent's statements are protected by the First Amendment; (4) the Hearing Board's findings of misconduct are against the manifest weight of the evidence; (5) the Hearing Board erroneously barred Respondent from presenting testimony from critical witnesses and rejected his offers of proof; and (6) the Hearing Board's recommended sanction is too severe.
The Administrator asks us to uphold the Hearing Board's findings of fact and misconduct but takes exception to the Hearing Board's sanction recommendation, arguing that Respondent should be suspended for one year and until further order of the court.
We briefly summarize the evidence relevant to our report. The Hearing Board Report and Recommendation contains a thorough recitation of the facts.
Respondent represented Kim Novak with respect to an emergency change of custody petition (petition) filed by her former husband, Michael Solner, in which Michael sought to remove custody of Kim and Michael's 14-year-old daughter, Robin, from Kim and her husband, David Novak. Michael's attorney, Joel Schaps, filed the petition in the circuit court of Cook County, where the Solners' dissolution action had been filed.
Judge Patrick Murphy heard the petition on November 27, 2007. Respondent appeared before Judge Murphy and asked that the case be transferred to LaSalle County because none of the parties resided in Cook County. Judge Murphy declined to do so and ordered that Michael be given temporary custody of Robin, based on the recommendation of Dr. Michael Karpowicz, a case manager who interviewed Robin. Robin was later removed from Michael's custody.
Respondent and attorney Schaps subsequently reached an agreement to transfer the case, but Judge Murphy would not sign the agreed order to transfer because he wanted Respondent and his client to appear before him in person to explain parts of an affidavit that Judge Murphy believed to be untrue. When attorney Schaps called Respondent to advise him of this, Respondent asked to speak with Judge Murphy. The parties went to Judge Murphy's chambers and Respondent appeared via speakerphone on his client's behalf.
Attorney Schaps and Judge Murphy testified that during the telephone conversation Respondent stated that he refused to appear before Judge Murphy. He yelled at Judge Murphy and said that he was a "narcissistic, maniacal, mental case, and should not be on the bench." Respondent denied that he raised his voice or that he used the phrase "mental case."
Following this incident, Judge Murphy entered an order requiring Respondent and his client to appear before him on February 21, 2008.
On February 12, 2008, Respondent sent Judge Murphy a letter stating as follows, in relevant part:
I must note further that during our telephone conference on February 8, 2008, you personally stated: "I have no problem with the matter being heard in LaSalle County." If that is correct, and no Motions are pending in Cook County, it is extremely difficult to comprehend any justification or motivation whatsoever for requiring the appearance of counsel other than the interjection of your personal vendetta in an attempt to rationalize your own mistake in summarily placing a 14 year old child with a drug and alcohol addict.
As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?
Respondent testified that he researched Judge Murphy on the internet and talked with other lawyers about him. He believes he was justified in making those statements about Judge Murphy.
In 1998, Respondent represented Christine Allison in an administrative appeal before the Department of Children and Family Services (DCFS). On August 5, 1998,
Respondent and his client appeared for a hearing before Administrative Law Judge (ALJ) Judy Heineken. The hearing pertained to allegations that Ms. Allison had sexually abused a minor foster child who was in her care.
During the hearing, Respondent stated several times that ALJ Heineken only "pretended" to be impartial because she was employed by DCFS. Among other things, he stated DCFS was an adversary to his client "and also hires and employs the hearing officer who purports to be independent, which she obviously is not since she's employed by the same agency and under the same state umbrella." He further stated to ALJ Heineken, "Obviously, you're an advocate and adversary to my position in everything that's done here with regard to rules of evidence and your own rules."
Respondent also stated on the record to ALJ Heineken, "I'd be embarrassed to have to take such jobs," and, "Obviously you need to go find a job in the private sector in the real world instead of bothering people with this kind of stuff." Respondent referred to the DCFS proceeding several times as a "kangaroo court" and "a joke" and said that "[t]his is no more a fair hearing than they had in Russia when they were operating under the Soviet system."
ALJ Heineken found that DCFS proved one of the charges against Ms. Allison but did not prove the second charge. Respondent appealed the decision, which the appellate court affirmed. The appellate court noted that Respondent constantly badgered ALJ Heineken and showed disrespect for her and the conduct of the proceeding.
Respondent testified that, by his comments, he simply meant to challenge existing law and that he was offended by the manner in which the proceedings took place.
Respondent represented a homeowners association in a debt collection action filed by a law firm. Attorney Robert Markoff represented the law firm. On February 1, 2005, Respondent appeared in the circuit court of Cook County on a motion to vacate a default judgment against his client. After the court continued the matter, Respondent told Markoff that he was acting unethically and then said, "You must be from a Jewish law firm." Respondent denied making that statement. Markoff testified that he felt that Respondent's comment was a provocation.
Respondent has been licensed to practice law since 1973 and has no prior discipline. He has performed some pro bono work and has been involved in community and bar activities. His secretary, Karen Donnelly, testified that he has a good reputation in the legal community for honesty.
The Hearing Board found that Respondent gave false testimony during his hearing and failed to recognize the wrongfulness of his conduct or to show any remorse. In addition, Respondent engaged in similar conduct during the proceedings before the Hearing Board. Respondent made several comments indicating that the Hearing Board Chair and Panel Members were not impartial or qualified to hear his case. For example, Respondent said that both chairpersons who presided over the case summarily denied his motions "without any significant argument or ability to actually participate in a meaningful way." With respect to his disciplinary proceeding, Respondent testified that "it's obvious that this proceeding is not much different than the DCFS proceeding."
At one point during the hearing, Respondent engaged in a discussion with the Chair about the Administrator's burden of proof. Respondent told the Chair, "It's a fact and you need to read the rules." At another point, Respondent said to the Chair, "Sir, I'm trying to point out what the relevance is under the rule. The rule is in the complaint. I'm not sure that this Hearing Panel understands what it says or means." Respondent also questioned whether the Panel was "well trained in the law or anything else" and whether "they know anything about constitutional law dealing with the issues of attorney free speech."
Denial of Due Process with Respect to Counts II and III
We begin by addressing Respondent's argument that he was denied due process because the initial investigations into his statements to ALJ Heineken (Count II) and attorney Markoff (Count III) were closed several years before the Administrator filed the complaint in this proceeding. Respondent made the allegedly improper statements to ALJ Heineken in 1998. According to ARDC Staff Counsel Denise Church, the file pertaining to this incident was expunged. As part of attorney Church's investigation into Respondent's statements to Judge Murphy, she obtained a copy of the transcript of proceedings before ALJ Heineken. The charges in Count II are based solely on the transcript.
The charges in Count III are based on a statement that Respondent allegedly made to attorney Robert Markoff in February 2005. Attorney Church sent Respondent a letter on December 13, 2005, advising Respondent that the Administrator "decided to close the above-captioned matters at this time." The letter also calls Respondent's attention to the provision in Commission Rule 54 that closure of an investigation shall not bar the Administrator from resuming the investigation if circumstances warrant. Respondent acknowledges this provision in
Commission Rule 54 but asserts that it was improper for the Administrator to resume the investigations in this case.
Neither party has cited any case law pertaining to the application of Commission Rule 54. Our research reveals that in some instances the Administrator has been held to have waived the right to prosecute charges based on previously closed files, but has been allowed to prosecute such charges under certain circumstances.
If new facts come to light of which the Administrator was not aware at the time the investigation was closed, the Administrator may resume the investigation. In re Teplitz, 97 CH 94 (Review Board, Aug. 11, 1999) at 9, petition for leave to file exceptions allowed, No. M.R. 16148 (Nov. 19, 1999). In In re Quinlivan, 01 CH 10 (Hearing Board, March 5, 2003), petition for leave to file exceptions denied, No. M.R. 19653 (Nov. 17, 2004), the Hearing Board, in determining that the Administrator did not waive the right to charge the respondent with misconduct related to a closed investigation, stated that the plain language of Commission Rule 54 "suggests that after an investigation is closed the Administrator can reopen it under certain circumstances, such as where there is new evidence or some other development is brought to the Administrator's attention." Quinlivan, 01 CH 10, Hearing Board Report at 11-13. The charges against Quinlivan were deemed proper because they were based in part on evidence that arose after the Administrator closed the initial investigation.
In In re Howard, 96 CH 531 (Hearing Board, Aug. 27, 1997), petition for leave to file exceptions denied and complaint discharged, No. M.R. 15103 (Sept. 28, 1998) and In re Schwartz, 98 CH 92 (Hearing Board, May 19, 2000), petition for leave to file exceptions denied, No. M.R. 17696 (Nov. 28, 2001), the Hearing Board concluded that the Administrator did waive the right to charge the respondents with past misconduct. In Howard, the Administrator sent the
respondent a letter indicating that the Administrator would not file charges but that "if the Commission receives evidence of similar future conduct, the investigation may be reopened." Nonetheless, the Administrator did file charges against Howard without any evidence of subsequent similar misconduct. Although the Hearing Board found that Howard committed some misconduct, it further found waiver and prosecutorial misconduct on the Administrator's part and recommended dismissal of the charges against Howard. The Review Board did not address the waiver issue, having found Howard's misconduct so minimal that a sanction was not warranted. Howard, 96 CH 531, Review Board Report at 15-16 and footnote 3.
In Schwartz, the respondent was charged with twelve counts of misconduct which included assisting a non-lawyer in the unauthorized practice of law, mishandling client settlement funds, failing to advise the Court of Claims of the death of a claimant, breach of fiduciary duty, advancement of funds to clients, and conduct involving dishonesty, fraud deceit or misrepresentation. The Hearing Board found that some of the charges were proven and further found that the Administrator waived the right to prosecute the charges in the counts related to advancement of funds to clients, which the Administrator had previously investigated and declined to prosecute. The Hearing Board stated as follows:
A party waives a right when the party voluntarily relinquishes that right. Howard, 96 CH 531, M.R. 15103 (Hearing Bd. Report). Waiver can be express or implied, and arises from acts, words or conduct of the one waiving the right. Id. Applying these principles to the present case supports our conclusion that the Administrator waived the right to prosecute claims against Respondent regarding advances to his clients. We infer from the facts of this case that the Administrator investigated the advances and decided to take no further action regarding that conduct. Three or four years later, in 1998, when the Administrator filed a complaint against Respondent for other alleged misconduct, she included the earlier conduct in the complaint. Based on the Administrator's previous actions, she waived her right to prosecute Respondent for advances he made to his clients between 1990 and 1992.
Schwartz, 98 CH 92, Hearing Board Report at 41-42. The Hearing Board went on to say that its finding should be narrowly construed and limited to the facts of that case. Schwartz, 98 CH 92, Hearing Board Report at 41-42.
In the case before us, the Administrator did not discover any new evidence specific to the charges in Counts II and III. The language of Commission Rule 54 is broad, however, and allows for resumption of an investigation "if circumstances warrant." The misconduct alleged in Counts II and III is similar in nature to the more recent allegations contained in Count I and could be considered new evidence of a pattern of unethical behavior that warranted reopening the closed investigations. For this reason, the instant case is distinguishable from Howard and Schwartz, where the charges based on reopened investigations were unrelated to the other charges in the complaints.
It should also be noted that Respondent does not argue that the Administrator waived his right to prosecute the incidents set forth in Counts II and III. Rather, he argues that his due process rights were violated. In attorney disciplinary proceedings, procedural due process requires that the respondent be given notice of the charges and a meaningful opportunity to defend against them and also requires compliance with basic notions of fairness. In re Redell, 03 CH 66 (Review Board Oct. 12, 2005), citing In re Chandler, 161 Ill. 2d 459, 470, 641 N.E.2d 473, 204 Ill. Dec. 249 (1994).
Respondent cannot claim that he lacked notice that the closed investigations could be resumed at a later date. The letter he received from attorney Church in December 2005 specifically alerted him to that possibility and quoted Commission Rule 54. The letter said only, "we have decided to close the above-captioned matter at this time." It did not state that no misconduct occurred.
We understand Respondent's concern, particularly with respect to Count II, that the incident in question took place so long ago that the pertinent records no longer exist and witnesses' memories have faded. This concern is alleviated, however, by the fact that the charges in Count II are based entirely on statements contained in a transcript of proceedings that was available to Respondent and whose accuracy he does not dispute. The records pertaining to Count III were not expunged and that incident was more recent. Consequently, under the circumstances of this case, Respondent has not shown that he was prejudiced by the expungement of the records pertaining to Count II.
Moreover, we agree with the Administrator that Supreme Court Rule 778(b), which provides for the expungement of the record of an investigation three years after its dismissal or closure by the Administrator, is strictly an administrative rule and is not intended to terminate the Administrator's ability to charge a respondent.
For all of the foregoing reasons, we conclude that the reopening of the investigations pertaining to Counts II and III did not violate Respondent's due process rights.
Rules Void for Vagueness
Respondent argues in a summary fashion that the Rules of Professional Conduct as applied to his disciplinary proceeding are void for vagueness. Respondent's argument on this issue is neither well-developed nor entirely clear. We understand his argument to be that the Administrator's reopening of closed investigations did not provide fair notice of the conduct that was prohibited. However, Respondent fails to identify which rule or rules he believes to be impermissibly vague or to cite any authority relevant to a particular rule, making it impossible for this Board to address his argument. See ARDC Rule 302(i), providing that the Review Board may refuse to review arguments not supported by citation to the record or legal precedent.
Accordingly, we reject Respondent's claim that the Rules of Professional Conduct as applied herein are unconstitutionally vague.
Charges Not Proved by Clear and Convincing Evidence
Next we address Respondent's assertions that the charges against him were not proved by clear and convincing evidence. The Administrator bears the burden of proving the charges against a respondent by clear and convincing evidence. In re Ingersoll, 186 Ill.2d 163, 710 N.E.2d 390 (1999). The Hearing Board is the trier of fact, and we will not disturb its findings unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961 (2006). A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill.2d at 542, 848 N.E.2d 961. Our review of the Hearing Board's legal conclusions, including whether the facts as found by the Hearing Board constitute misconduct, is de novo. In re Discipio, 163 Ill.2d 515, 527, 645 N.E.2d 906 (1994).
With respect to Count I, we find that the evidence amply supports the Hearing Board's findings of misconduct. Respondent devotes many pages of his brief to his effort to persuade us that Judge Murphy did not act in accordance with applicable law. The propriety of Judge Murphy's rulings in the Solner matter is not at issue in this proceeding, however. Rather, our focus is on Respondent's statements and whether the findings that Respondent violated Rules 8.2(a), 4.4, 8.4(a)(5) and Supreme Court 770 were against the manifest weight of the evidence.
Rule 8.2(a) prohibits lawyers from making a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. Respondent represents to this Board that he did not "in any manner attack the honesty or integrity of the Judge or the Court system." Respondent's brief at 30. Respondent's
February 12, 2008, letter to Judge Murphy demonstrates otherwise. In it, Respondent states, "[I]t is extremely difficult to comprehend any justification or motivation whatsoever for requiring the appearance of counsel other than the interjection of your personal vendetta in an attempt to rationalize your own mistake in summarily placing a 14 year old child with a drug and alcohol addict." The insinuation that Judge Murphy's decisions in the Solner matter were based on a "personal vendetta" rather than on the facts and the law attacked Judge Murphy's honesty and integrity. The Hearing Board found that Judge Murphy set forth the legal bases for his decisions and that there was no factual basis for Respondent's claim that Judge Murphy acted without regard to the law. Respondent has not pointed to any evidence that would cause us to disturb this finding.
Respondent also attacked Judge Murphy's qualifications by asserting verbally and in writing that he was mentally unfit to serve as a judge. Respondent admitted that he called Judge Murphy "narcissistic" and "maniacal" and said that he should not be on the bench. Further, it is undisputed that Respondent stated in his February 12, 2008, letter to Judge Murphy that he "appear[ed] to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge." The Hearing Board found that Respondent had no reasonable basis for these statements, which were based on Respondent's conjecture and misrepresentation of the facts.
Respondent continues to point to Judge Murphy's purportedly hostile behavior as evidence of an alleged mental disorder and a basis for reversing the Hearing Board. This argument is unpersuasive for the following reasons. First, the Hearing Board found that much of Respondent's testimony regarding the proceedings before Judge Murphy was false and inaccurate. It found Judge Murphy, on the other hand, to be a very credible witness. We defer to
the Hearing Board's credibility findings. In re Timpone, 208 Ill.2d 371, 383, 804 N.E.2d 560 (2004). Respondent has provided us with no reason to disturb those findings.
Second, Respondent admittedly is not trained in psychology or psychiatry and cannot point to a single piece of evidence from a qualified professional that would support his armchair diagnosis of Judge Murphy. Respondent's layperson's opinion is not a sufficient or reasonable basis for declaring a judge to be mentally unfit, and that should have been obvious to Respondent. Accordingly, we affirm the finding that Respondent made a false statement about Judge Murphy that Respondent knew to be false or made with reckless disregard as to its truth or falsity.
The manifest weight of the evidence also supports the finding that Respondent's statements about Judge Murphy had no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4. As the Hearing Board points out, if Respondent had a legitimate grievance with Judge Murphy, he could have used proper channels to report it. The evidence supports the Hearing Board's finding that Respondent made the comments not for a legitimate purpose, but because he was angry. The tone of Respondent's letter to Judge Murphy, for example, is insulting and angry. In addition, attorney Schaps testified that Respondent's voice during their conference call was so loud that it could be heard outside the judge's chambers with the door closed. Respondent's outbursts did nothing to advance his client's interests and in fact diverted the court's attention from the real issues in the case.
The Hearing Board further found that Respondent's misconduct prejudiced the administration of justice because, due to Respondent's comments and his refusal to appear, "Judge Murphy found it necessary to issue otherwise unnecessary orders, or portions thereof, and
the hearing regarding the possible Rule 137 violation was delayed and rescheduled." (Hearing Board Report at 26-27).
Judge Murphy's order of February 13, 2008, states that Respondent's refusal to appear in court was "in direct defiance of this court's orders," and that his other statements "were a broadside and an open threat to the orderly procedure and the integrity and jurisdiction of the court system." After Judge Murphy received Respondent's letter, he issued an order on February 14, 2008, which states in part that the initial purpose of the conference call with Respondent was to "obtain a mutually convenient date to resolve the potential Rule 137 issues. Mr. Hoffman instead requested that the court reconvene in chambers to hear him out. The court twice asked him for a convenient date but instead Mr. Hoffman attacked the court which he again does in the attached letter." Respondent asserts that his comments and letter did not affect the proceeding in any respect.
Rule 8.4(a)(5) requires proof of actual prejudice to the administration of justice. In re Vrdolyak, 137 Ill.2d 407, 425, 560 N.E.2d 840, 847, 148 Ill.Dec. 243 (1990). In In re Zurek, 99 CH 45 (Review Board March 28, 2002), petition for leave to file exceptions denied, No. M.R. 18164 (Sept. 25, 2002), the respondent accused a judge and opposing counsel of bribery and made vulgar remarks to a deponent. The Review Board determined that "[m]isconduct of this nature during the course of ongoing litigation clearly interferes with the effective functioning of the judicial process and thereby causes prejudice to the administration of justice." Zurek, 99 CH 45, Review Board Report at 10.
The Administrator presented sufficient evidence of actual prejudice to support the finding that Respondent's conduct violated Rule 8.4(a)(5). The court had instructed Respondent and attorney Schaps to agree on a mutually convenient date for a hearing, but Respondent told
Judge Murphy that he refused to appear and that the Cook County court had no jurisdiction. Judge Murphy had to issue orders specifically addressing Respondent's behavior and ordering him to appear. This misconduct is similar to the misconduct in Zurek, which was found to have clearly interfered with the effective functioning of the judicial process.
Turning to Count II, we determine that the evidence supported the Hearing Board's findings that Respondent made false statements about ALJ Heineken with knowledge of or reckless disregard for their truth or falsity and used means that had no substantial purpose other than delaying, embarrassing, or burdening a third party. Contrary to Respondent's characterization, his statements to ALJ Heineken were not simply "objections to matters he found objectionable" (Respondent's Brief at p. 34), nor were they accurate. They were unfounded accusations and personal attacks that were clearly intended to intimidate and embarrass ALJ Heineken. There is simply no basis in the record for Respondent's comments that she was biased, "pretended" to be impartial, or acted as an "advocate" for DCFS.
Respondent argues that his remarks about ALJ Heineken and the DCFS proceeding did not adversely affect the proceeding in any way. Although Respondent's behavior was disrespectful and inappropriate, we agree that, based on the facts as found by the Hearing Board, the effect on the DCFS proceeding was minimal and did not rise to the level of actual prejudice as required by Rule 8.4(a)(5). Accordingly, we reverse the Hearing Board's finding with respect to Count II that Respondent's misconduct violated Rule 8.4(a)(5).
With respect to Count III, we affirm the Hearing Board's findings that Respondent violated Rules 4.4, 8.4(a)(5), and Supreme Court Rule 770. Respondent told attorney Markoff that he was acting unethically and then, according to Markoff, said, "You must be from a Jewish law firm." The Hearing Board believed Markoff's testimony that Respondent
made the statement and did not believe Respondent's denial. We have no reason to disturb the Hearing Board's credibility findings. The Hearing Board found no legitimate purpose for Respondent's remark, and we affirm this finding as well. As the Hearing Board said, "[c]omments of this type have no place in a courtroom or in the legal profession." Hearing Board Report at 41.
Rule 8.4(a)(5) provides that an attorney "shall not engage in adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others, based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status." Based on the Rule's language and the Hearing Board's finding that Respondent made a derogatory comment to attorney Markoff based on his religion, we conclude that the evidence supports the finding that Respondent violated Rule 8.4(a)(5). The evidence also supports the finding that Respondent violated Supreme Court Rule 770, which prohibits conduct that tends to bring the legal profession into disrepute.
Respondent asserts that he had the right under the First Amendment to make the statements at issue. We disagree. It has long been established that attorneys' First Amendment rights do not extend to false statements made with knowledge of their falsity or with reckless disregard for the truth. In re Palmisano, No. 92 CH 109, petition for leave to file exceptions denied, No. M.R. 10116 (May 19, 1994). Moreover, attorneys "do not enjoy the same freedoms as a private citizen when it comes to professional discipline." In re Betts, No. 90 SH 49 (Review Board, June 16, 1993), approved and confirmed, No. M.R. 9296 (Sept. 27, 1993). Respondent's assertion that he was expressing an informed opinion as to Judge Murphy is unpersuasive. In In
re Kozel, 96 CH 50 (Review Board, Dec. 30, 1999) at 14, petition for leave to file exceptions allowed, No. M.R. 16530 (June 30, 2000), the Review Board noted the following:
While statements of opinion are constitutionally protected (Owen v. Carr, 113 Ill. 2d 273, 280, 497 N.E.2d 1145, 100 Ill. Dec. 783 (1986)) and attorneys can legitimately criticize a judge and disagree with his or her rulings, attorneys cannot cross the line and unjustly impugn the character or integrity of a judge without having any basis for doing so. See In re Sawyer, 360 U.S. 622, 631-32, 634-36, 79 S.Ct. 1376, 3 L.Ed.2d 1473, 1480-83 (1959); People ex rel. Chicago Bar Association v. Metzen, 291 Ill. 55, 58, 125 N.E. 734 (1919). This is true even of statements which might appear to be matters of opinion, where those statements imply a factual basis and where there is no support for that factual basis. Palmisano, 70 F.3d at 487.
Similarly, an attorney's offensive and abusive language is not protected by the First Amendment because "it is not in any proper sense communication of information or opinion safeguarded by the Constitution" (Cantwell v. Connecticut, 310 U.S. 296, 309-310 (1940), and because "attorneys are bound by rules of conduct significantly more demanding than the requirements of law applicable to other members of society" (Attorney Grievance Commission v. Alison, 565 A.2d 660, 665-66 (Md. 1989)).
For the foregoing reasons, Respondent's statements were not protected by the First Amendment.
Exclusion of Evidence
Respondent further contends that the Hearing Board Chair improperly excluded the testimony of Judge James Brusatte and Kimberly and David Novak. His argument on this point, however, does not conform to ARDC Rule 302(f)(5) governing Appellants' Briefs, as it contains no citation to relevant authority or to the record. Moreover, Respondent has not demonstrated that the Hearing Board Chair abused his discretion in excluding the testimony. We will not disturb the Hearing Board's rulings on evidentiary issues unless the Hearing Board
abused its discretion. In re Petrulis, 96 CH 546 (Review Board, Dec. 9, 1999), approved and confirmed, No. M.R. 16556 (June 30, 2000). An abuse of discretion occurs only when no reasonable person would take the position adopted by the Hearing Board. In re Wilson, 98 CH 69 (Review Board, March 23, 2001), petition for leave to file exceptions denied, No. M.R. 17518 (Sept. 24, 2001).
Respondent sought to introduce character testimony from Judge Brusatte. Although Respondent disclosed Judge Brusatte as a witness on the issue of family law and custody proceedings well before the hearing, he did not disclose him as a character witness until two days before the hearing. The Chair's decision to exclude Judge Brusatte's character testimony on the ground that the character witness disclosure was untimely was not an abuse of discretion.
Respondent sought to present the Novaks' testimony about Judge Murphy's demeanor in the custody proceeding. The Novaks were not present, however, for the telephone conference at issue in Count I. Consequently, the Chair ruled that their testimony was not relevant. Given that the Novaks were not present at the time of Respondent's misconduct and that the propriety of Judge Murphy's conduct is not at issue, we cannot say that the Hearing Board's exclusion of their testimony was an abuse of discretion.
The majority of the Hearing Panel recommended that Respondent receive a three (3)-year suspension stayed after seventeen (17) months by a two (2) year term of probation. The Chair of the Hearing Panel dissented, and recommended a three (3) year suspension until further order of the court with the last twenty-four (24) months stayed by twenty-four (24) months of probation. The Administrator argues that probation is not appropriate and that Respondent
should be suspended for one (1) year and until further order of the court. Respondent asserts that his sanction, if any, should be a reprimand or censure.
The Hearing Board's sanction recommendation is advisory. In re Ingersoll, 186 Ill.2d 163,178, 710 N.E.2d 390 (1999). When considering our recommendation, we are mindful that the purpose of the disciplinary process is not to punish the respondent but to protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). We strive to recommend a sanction that is consistent with sanctions imposed in similar cases, but must consider the unique circumstances of the matter before us, including the nature of the misconduct and any factors in aggravation and mitigation. Timpone, 157 Ill.2d at 197, 623 N.E.2d 300; In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526 (1991).
Respondent's misconduct was unprofessional, abusive, and offensive. It demonstrated a blatant disregard and disdain for the Rules of Professional Conduct and the reputation of the legal profession. We recognize that Respondent has some mitigation. Most significantly, he has practiced for over 35 years without prior discipline. There is substantial evidence in aggravation, though, which causes us concern. Respondent is unwilling or unable to recognize that his misconduct was his improper. Moreover, his conduct during his disciplinary proceeding was very similar in nature to the misconduct for which he was charged and demonstrated disrespect for the Hearing Panel and the disciplinary process. See Kozel, 96 CH 50, Review Board Report at 19 (a respondent's conduct before the Hearing Board may be considered in aggravation). Respondent's false testimony before the Hearing Board is also troubling.
The Administrator argues that Respondent fails to acknowledge his misconduct and, for that reason, should be suspended until further order of the court (UFO). The Supreme Court has held that "[a]n attorney's failure to recognize the wrongfulness of his conduct often necessitates a greater degree of discipline than is otherwise necessary, in order that the attorney will come to appreciate the wrongfulness of his conduct and not again victimize members of the public with such misconduct." In re Mason, 122 Ill. 2d 163, 173-74, 522 N.E.2d 1233, 1238.
Respondent's conduct during the proceedings below supports the Administrator's position that a suspension UFO is appropriate. While facing possible discipline for making unfounded accusations and disparaging remarks about Judge Murphy and ALJ Heineken, he continued to make similar remarks about the Hearing Panel's objectivity and qualifications. This demonstrates to us that the disciplinary process has had no deterrent effect on Respondent, and he does not intend to abide by the Rules of Professional Conduct in the future. The court has imposed suspensions UFO in similar situations. See In re Baldwin, 05 SH 46 (Hearing Board, July 24, 2006), approved and confirmed, No. M.R. 21132 (Nov. 17, 2006); In re Pelton, 02 SH 67 (Hearing Board, Jan. 22, 2004), approved and confirmed, No. M.R. 19327 (May 17, 2004). We conclude that Respondent's utter lack of understanding and remorse and his obvious disdain for the disciplinary system require a recommendation of a suspension UFO.
The Administrator further argues that Respondent is not an appropriate candidate for probation. We agree.
Supreme Court Rule 772 provides that the Court may place an attorney on probation if the attorney has demonstrated that he:
can perform legal services and the continued practice of law will not cause the courts or profession to fall into disrepute;
is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;
has a disability which is temporary or minor and does not require treatment and transfer to disability inactive status; and
is not guilty of acts warranting disbarment.
Respondent does not meet the requirements of Rule 772. While there is no evidence in the record before us that Respondent is unable to perform legal services, we cannot say that his continued practice of law will not cause further harm to the courts or the profession. In fact, given Respondent's behavior during his disciplinary hearing and his refusal to recognize that his behavior was unethical, there is a strong likelihood that such behavior will continue and will damage the reputation of the legal profession.
Moreover, Respondent has given us no reason to believe that he would comply with any recommended terms of probation. Instead of indicating a willingness to satisfy the Hearing Board's probationary requirements, including undergoing a psychiatric evaluation, he questions the Hearing Board's authority to make such a recommendation. He also persists in the misguided belief that he had the right and the responsibility to accuse Judge Murphy of being mentally unfit to act as a judge. Under these circumstances, probation is not appropriate.
Attorneys who make baseless attacks on the judiciary have received significant suspensions or have been disbarred. See In re Denzel, 92 CH 114, M.R. 10694 (March 27, 1995) (two-year suspension until further order of the court); In re Phelps, 55 Ill.2d 319, 393 N.E.2d 13 (1973) (suspension for two years and until further order of the court); In re Mason, 33 Ill.2d 53, 55-60, 210 N.E.2d 203, 204-07 (1965) (disbarment); People ex rel. Chicago Bar Association v. Standidge, 333 Ill.361, 363-64, 164 N.E. 844, 845-46 (1928) (disbarment). Respondent's misconduct is not as egregious as that of the respondents in the foregoing cases, nor does the
Administrator seek disbarment. Given the Supreme Court's intolerance for unfounded attacks on the judiciary, however, we do not agree with Respondent that his sanction should be limited to a censure or reprimand.1
The following cases, while not identical to the case before us, are instructive in considering our recommendation.
The respondent in In re Ras, 01 CH 18 (Hearing Board, Dec. 11, 2002), approved and confirmed, No. M.R. 18605 (March 19, 2003), was suspended for one year and until further order of the court for sending letters containing ethnic slurs to a law firm, using vulgar language in a court pleading, and making false statements to the ARDC. Unlike Respondent, Ras did not appear for his disciplinary hearing.
In Phelps, 55 Ill.2d 319, 393 N.E.2d 13 (1973), the respondent filed a frivolous appeal and a federal lawsuit accusing certain circuit court judges of coercion and other criminal acts. Similar to Respondent, Phelps persisted during her disciplinary proceeding in making the same types of allegations that gave rise to the charges against her. Phelps was suspended for two years and until further order of the court.
The attorney in In re Greanias, 01 SH 117, approved and confirmed, No. M.R. 19079 (January 20, 2004) was also suspended for two years and until further order of the court for filing baseless lawsuits against Commissioners and the Clerk of the Industrial Commission and other lawyers, alleging fraud, conspiracy and racketeering. Greanias had practiced for more than 20 years without prior discipline and, like Respondent, was cooperative during her disciplinary proceedings.
We do not consider Respondent's misconduct to be as egregious as that of Ras, Phelps, or Greanias, so we decline to impose a suspension of one year UFO. Respondent has had
a long career without discipline to this point and appears to be a capable advocate for his clients. In our view, a six-month suspension UFO is sufficient to impress upon Respondent the seriousness of his misconduct and the need to modify his behavior. We strongly recommend that he take steps to address the issues that lead to his misconduct so as to avoid any similar problems in the future.
We affirm the Hearing Board's findings of fact and misconduct, except that we reverse the finding that Respondent's misconduct as charged in Count II was prejudicial to the administration of justice. We recommend that Respondent's license be suspended for six months and until further order of the court.
Date Entered: 23 June 2010
Terrence V. O'Leary
1 We further note that Respondent fails to cite in his brief any cases supporting his sanction argument, in violation of ARDC Rule 302(f)(5). The failure to cite to relevant authority in his Brief constitutes a waiver of that argument on review (ARDC Rule 302(f)(5)). Waiver notwithstanding, the cases listed in the Reply Brief involve less egregious misconduct than Respondent's and do not guide our recommendation.