Filed October 8, 2008

In re Donald David Knuckey
Commission No. 08 SH 36

Synopsis of Hearing Board Report and Recommendation

Default Proceeding

NATURE OF THE CASE: 1) committing a criminal act, driving under the influence of alcohol, that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 2) failing to notify the Administrator in writing within 30 days of the entry of a judgment of conviction; 3) engaging in conduct that is prejudicial to the administration of justice; and 4) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: Rules 8.4(a)(3) and (a)(5) of the Illinois Rules of Professional Conduct; Rule 1-102(a)(5) of the Code of Professional Responsibility; and Supreme Court Rules 761(a) and 770.

RECOMMENDATION: Suspension from the practice of law for one (1) year and until further order of the Court.

DATE OF OPINION: October 8, 2008.

HEARING PANEL: John L. Gilbert, Chair, Edward W. Huntley, and Richard Corkery.

RESPONDENT'S COUNSEL:

ADMINISTRATOR'S COUNSEL: Peter L. Rotskoff.

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

In the Matter of:

DONALD DAVID KNUCKEY,

Attorney-Respondent,

No. 1494597.

Commission No. 08 SH 36

REPORT AND RECOMMENDATION OF THE HEARING BOARD

DEFAULT PROCEEDING

INTRODUCTION

The hearing in this matter was held on August 5, 2008 at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois before a Panel of the Hearing Board consisting of John L. Gilbert, Chair, Edward W. Huntley, lawyer member, and Richard Corkery, public member. Peter L. Rotskoff appeared on behalf of the Administrator. The Respondent was not present at the hearing and no counsel appeared on his behalf.

PLEADINGS AND PRE-HEARING PROCEEDINGS

On May 13, 2008, the Administrator filed a three-count Complaint against the Respondent. He was charged with committing criminal acts, driving under the influence on three occasions, that reflected adversely on his fitness as a lawyer (Counts I, II); was prejudicial to the administration of justice (Counts I, II, III); and tended to bring the courts or the legal profession into disrepute (Counts I, II, III). It was also alleged that he failed to notify the Administrator of his conviction on one occasion (Count I). A copy of the Complaint, Notice of Complaint, Order assigning the Chair, Rules of the Supreme Court of Illinois, and a Pre-hearing Conference Procedures Memorandum were personally served on the Respondent in Henry, Illinois on May

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19, 2008. The Notice of Complaint stated "you must answer (including disclosures required by Commission Rule 231) or otherwise plead within 21 days of service and comply with Commission Rule 253 (disclosure of witnesses) within 28 days."

The Respondent never filed an Answer or otherwise plead to the Complaint. On June 12, 2008, the Administrator filed a Motion to Deem the Allegations of the Complaint Admitted Pursuant to Commission Rule 236, based upon the Respondent's failure to answer or otherwise plead to the Complaint. The Respondent participated in a telephonic pre-hearing conference on June 26, 2008, and stated that he did not plan to respond to the foregoing motion of the Administrator. (Adm. Ex. 6, p. 3-4) At the pre-hearing conference, the hearing was scheduled for August 5, 2008, at 9:30 a.m. The Respondent voiced no objection to the scheduled hearing date. (Adm. Ex. 6, p. 6-12) On June 27, 2008, the Chair granted the Administrator's Motion to Deem the Allegations of the Complaint Admitted. The order stated that "[n]o further proof of the allegations of the Complaint is required" and the "evidence presented at the hearing in this matter shall be limited to evidence of aggravation and mitigation."

THE EVIDENCE

The Administrator's exhibits 1 through 6 were received into evidence, and the Administrator presented the testimony of Dr. Lawrence L. Jeckel.

Dr. Jeckel, an experienced psychiatrist (Adm. Ex. 6), testified that he was asked by the ARDC to conduct a psychological evaluation of the Respondent. Dr. Jeckel reviewed various documents and met with the Respondent for one and one-half hours in November 2007. The Respondent was also given a psychological test in January 2008. Dr. Jeckel stated that the Respondent's cooperation in regard to the evaluation was unsatisfactory. For example, the Respondent was not a good historian, he was cantankerous, and he declined to provide the names

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of individuals for Dr. Jeckel to contact. At the time of the psychological testing in January 2008, the Respondent was argumentative, denigrated the process, and revealed a deficiency in his mental state. For example, he was unable to correctly identify the date or the day of the week.

Dr. Jeckel voiced the opinion that the Respondent has alcohol induced-dementia and is severely impaired. He further stated that it is "hard to imagine" that the Respondent can practice law in an appropriate manner. Dr. Jeckel also noted that the Respondent has continued to use alcohol and has not taken any steps to obtain necessary treatment.

Dr. Jeckel recommended the following treatment for the RESPONDENT: abstention from the use of alcohol; placement in a detoxification facility for one to two months, where he could be carefully watched; treatment on an outpatient basis for at least six months to a year; and then re-examination.

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. In re Storment, 203 Ill. 2d 378, 390, 786 N.E.2d 963, 969 (2002). Proof of a criminal conviction is "conclusive evidence" of the attorney's guilt, and that discipline is warranted. In re Bell, 147 Ill.2d 15, 38, 588 N.E.2d 1093 (1992); In re Law, 00 CH 53, Hearing Board Report at 6 (Hearing Board Report approved in M.R.17664, November 28, 2001). An attorney's conviction of a crime, even one that does not involve moral turpitude, constitutes misconduct that is prejudicial to the administration of justice. See In re Scarnavack, 108 Ill. 2d 456, 459-61, 485 N.E.2d 1, 2-3 (1985); In re Lunardi, 127 Ill. 2d 413, 416-21, 537 N.E.2d 767, 768-70 (1989).

In In re Dempsey, 94 CH 454 (Hearing Board Report approved in M.R. 11064, May 26, 1995) the attorney was found to have engaged in misconduct based upon his plea of guilty to

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driving under the influence of alcohol and driving without insurance. The Hearing Board in Dempsey stated:

"Respondent's DUI conviction demonstrates his disrespect for the laws of this State and adversely reflects upon his fitness as a lawyer . . . Thus, the Respondent's criminal conviction constitutes a violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct. Furthermore, criminal conduct by an attorney diminishes the public's confidence in the entire legal profession and therefore, the Panel finds that the Respondent's criminal conduct tends to bring the legal profession into disrepute, in violation of Supreme Court Rule 771 [now770]." (Hearing Board Report, pp. 8-9) See also In re Schickendanz, 01 SH 108, M.R. 18725 (May 22, 2003); In re Law, 00CH 53, M.R. 17664 (November 28, 2001).

With the above principles in mind, and based upon our consideration of the factual allegations of the Complaint, which are deemed admitted by virtue of the order of June 27, 2008, and the evidence submitted at the hearing on August 5, 2008, we find by clear and convincing evidence that the Respondent engaged in the acts alleged and committed the misconduct charged in the Complaint.

Count I

In regard to Count I, we find the following:

On January 22, 2007, the Respondent was seen exiting his motor vehicle, which was in a ditch, on Interstate 70 in Bond County, Illinois. Sheriff's deputies found open scotch and beer in his vehicle. The deputies detected the smell of alcohol on the Respondent's breath. He registered a .218 on the breath alcohol content test. On March 1, 2007, the Respondent entered a plea of guilty to the offense of driving under the influence of alcohol in violation of 625 ILCS 5/11-501(a), a Class A misdemeanor (People v. Knuckey, Bond County, No. 07 DT 6). The Respondent was sentenced to a 12-month term of probation, and was ordered to pay a fine and costs. (Adm. Ex. 1 and 2)

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The Respondent did not notify the Administrator of the above conviction within 30 days, as he was required to do by Supreme Court Rule 761(a).

Based upon the above, we find it clearly and convincingly established that the Respondent committed the following misconduct charged in Count I: (a) committed a criminal act, driving under the influence of alcohol, that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct; (b) failed to notify the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction, in violation of Supreme Court Rule 761(a); (c) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and (d) 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.

Count II

In regard to Count II, we find the following:

On September 11, 1992, the Respondent was stopped by the police on Interstate 39 in Woodford County, Illinois. He then failed a field sobriety test, and was arrested for driving under the influence of alcohol. On November 9, 1992, the Respondent entered a plea of guilty to the offense of driving under the influence of alcohol (People v. Knuckey, Woodford County, No. 92 TR 4088). He was sentenced to a two-year term of court supervision, and was ordered to pay a fine and costs. (Ad. Ex. 3)

Based upon the above, we find it clearly and convincingly established that the Respondent committed the following misconduct charged in Count I: (a) committed a criminal act, driving under the influence of alcohol, that reflects adversely on the lawyer's honesty,

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trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct; (b) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and (c) 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.

Count III

In regard to Count III, we find the following:

On November 8, 1984, the Respondent was arrested by the police in Kane County, Illinois, and was charged with driving under the influence of alcohol. On December 19, 1984, the Respondent entered a plea of guilty to the offense of driving under the influence of alcohol (People v. Knuckey, Kane County, No.84 TR 55581-2). He was sentenced to court supervision, and was ordered to pay a fine and costs. (Adm. Ex. 4)

Based upon the above, we find it clearly and convincingly established that the Respondent committed the following misconduct charged in Count I: (a) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 1-102(a)(5) of the Code of Professional Responsibility; and (b) 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 771[now 770].

RECOMMENDATION

In determining the appropriate sanction, we recognize that the purpose of the disciplinary system is not to punish an attorney for misconduct, but rather to protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice from reproach. In re Smith, 168 Ill. 2d 269, 295, 659 N.E.2d 896, 908 (1995). While the goal is to impose a sanction

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generally consistent with sanctions imposed on other attorneys for similar misconduct in similar circumstances, "each case is unique and must be resolved with respect to its particular facts and circumstances." In re Spak, 188 Ill. 2d 53, 67, 719 N.E.2d 747, 755 (1999). Additionally, we may consider the "deterrent value of a sanction and the need to impress upon others the seriousness of the misconduct at issue." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000).

In this case, the Administrator requested the sanction of suspension from the practice of law for one year and until further order of the Court.

In determining the appropriate sanction in this case, we considered the following:

The Respondent committed the criminal offense of driving under the influence of alcohol on three separate occasions over a 23-year period. Thus, his misconduct was "intentional and consisted of a series of improper acts over an extended period of time." In re Feldman, 89 Ill. 2d 7, 13, 431 N.E.2d 388, 390 (1982).

The testimony of Dr. Jeckel showed that the Respondent suffers from alcohol-induced dementia. Yet, he has continued to consume alcohol, and has not obtained necessary treatment, such as that recommended by Dr. Jeckel. We doubt that the Respondent is capable of practicing law in an ethical manner in his present condition.

The Respondent's misconduct is seriously aggravated by his failure to answer the disciplinary complaint and failure to appear at his disciplinary hearing. An attorney has the obligation to fully cooperate in disciplinary investigations and other disciplinary proceedings. In re Zisook, 88 Ill. 2d 321, 331, 430 N.E.2d 1037, 1041 (1982). The failure of an attorney to cooperate in his disciplinary proceeding demonstrates a "want of professional responsibility" (In re Brody, 65 Ill. 2d 152, 156, 357 N.E.2d 498, 500 (1976); In re Pass, 105 Ill. 2d 366, 371, 475

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N.E.2d 525, 527 (1985)); "displays contempt for the Supreme Court and the legal profession" (In re Kuknyo, 01 SH 49, Hearing Board Report, p. 17); "tends to defeat the administration of justice and to bring the courts and the legal profession into disrepute;" (In re Johnson, 133 Ill. 2d 516, 534, 552 N.E.2d 703, 711 (1990)); and "indicates that substantial discipline is warranted" (In re Samuels, 126 Ill. 2d 509, 531, 535 N.E.2d 808, 817 (1989).

In mitigation, the Respondent has had no discipline since being licensed to practice law in 1973.

When the evidence shows that an attorney has addressed his or her alcohol or other addiction problem, is in a solid program of recovery, and is in sustained remission, the sanction is often a suspension stayed by a period of probation. See In re Larson, 07 SH 10, M.R. 21782 (September 18, 2007); In re Lamoreaux, 05 CH 17, M.R. 20486 (November 22, 2005); and In re Palmer, 00 SH 13, M.R. 17881 (January 29, 2002). On the other hand, as in this case, when an attorney has an addiction problem, has not obtained necessary treatment, and is not in remission, the sanction is usually a suspension until further order of the Court. See In re Hillis, 07 SH 14, M.R. 21781 (September 18, 2007); In re Paganucci, 06 CH 48, M.R. 21727 (September 18, 2007); In re Welter, 05 CH 60, M.R. 21300 (January 12, 2007); In re Law, 00 CH 53, M.R. 17664 (November 28, 2001); In re Moore, 99 CH 36, M.R. 17486 (May 25, 2001); and In re Czapski, 92 CH 396, M.R. 10421 (November 30, 1994).

The sanction of suspension for one year and until further order of the Court, as requested by the Administrator, was the sanction imposed in the above cited cases of Hillis, Paganucci, Welter, Law, Moore, and Czapski. We find it to be the appropriate sanction in this case.

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Therefore, we recommend that the Respondent, Donald David Knuckey, be suspended from the practice of law for a period of one (1) year and until further order of the Court.

Date Entered: October 8, 2008

John L. Gilbert, Chair, with Panel Members Edward W. Huntley and Richard Corkery, concurring.