Filed August 12, 2009

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

In the Matter of:

MELVIN H. HOFFMAN,

Attorney-Respondent,

No. 3122970.

Commission No. 08 SH 65

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on April 23, 2009, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois before a Hearing Board Panel consisting of Jack O. Asher, Chair, James R. Mendillo, lawyer member, and Charles E. King, Sr., public member. The Administrator was represented by Denise Churchand Peter L. Rotskoff. The Respondent appeared pro se.

PLEADINGS

On July 10, 2008, the Administrator filed a three-count Complaint against the Respondent. Count I alleged that in February 2008, after receiving unfavorable rulings from a Circuit Court Judge, the Respondent participated in a conference call with the judge and another attorney. During the conference call the Respondent stated to the judge "you are a narcissistic, maniacal, mental case" and "you should not be on the bench." A few days later, the Respondent sent the judge a letter, in which the Respondent said "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."

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Count II alleged that in 1997 the Respondent, while representing a client at an administrative hearing with the Illinois Department of Children and Family Services, made several inappropriate comments to the Administrative Law Judge. The Respondent's comments included saying "this is a kangaroo court;" referring to opposing counsel as the judge's "fellow employee;" stating the judge was "an advocate and adversary to my position in everything that's done here;" saying he would be "embarrassed to have to take such jobs [as Administrative Law Judge];" and stating that the proceeding was "no more a fair hearing than they had in Russia when they were operating under the Soviet system."

Count III alleged that in 2004, the Respondent stated to another attorney in a courtroom that the attorney was "unethical" and "you must be from a Jewish firm."

Based upon the above, the Respondent was charged with: violating Rule 8.2 of the Illinois Rules of Professional Conduct by 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, adjudicative officer, or public legal officer (Count I and II); violating Rule 4.4 by using means that have no substantial purpose other than to embarrass, delay, or burden a third person (Counts I, II, and III); violating Rule 8.4(a)(5) by engaging in conduct that is prejudicial to the administration of justice (Counts I, II, and III); and violating Supreme Court Rule 770 by engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute (Counts I, II, and III).

The Respondent filed a "Response to Complaint," in which he admitted some factual allegations, denied others, and denied all of the charges of misconduct.

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THE EVIDENCE

The Administrator presented the testimony of five witnesses, including the Respondent as an adverse witness. The Administrator's Exhibits 1 through 47 were received into evidence. (Tr. 29). The Respondent testified in his own behalf.

Patrick T. Murphy

Judge Murphy testified that he is a Circuit Court Judge in Cook County and is assigned to the Domestic Relations Division. He provided information about his background. (Tr. 30-34, 59).

In November 2007 Judge Murphy heard matters in the case of In re Marriage of Solner (96 D5 30578). Mr. Solner, who was represented by attorney Joel Schaps, filed an Emergency Petition for Change of Custody. (Adm. Ex. 3). The custody issue pertained to the 14-year old daughter of Mr. Solner and Kimberly Novak (formerly Solner). The Respondent represented Mrs. Novak. (Tr. 59). When the case was called on November 27, 2007, the Respondent stepped up to the bench and asked that the case be transferred to LaSalle County. Mr. Schaps objected to the transfer. (Tr. 58-59). After being informed that none of the parties resided in Cook County, Judge Murphy told the attorneys that he did not know what the law was as to the transfer issue. (Tr. 59-60). He then went into his chambers and researched the issue. (Tr. 59). Thereafter, Judge Murphy returned to the courtroom, informed the parties that based on his research "the law is such that it stays here," and said he was not going to transfer the case. (Tr. 59-60, 68)

After Judge Murphy denied the Respondent's motion to transfer the case to LaSalle County, the Respondent filed a motion for change of judge as a matter of right. Judge Murphy denied the motion because he had already ruled against the Respondent as to the transfer issue. (Tr. 58-59).

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Judge Murphy conducted a hearing on the Emergency Petition for Change of Custody on November 27, 2007. (Adm. Ex. 47). The daughter of the parties testified in chambers. Neither Mr. Solner nor Mrs. Novak testified. Judge Murphy said that he asked the Respondent on "at least two or three occasions" if his client was going to testify, and the Respondent replied no. (Tr. 35, 64, 70; Adm. Ex. 47 at 18). The parties were also sent to a case manager. (Tr. 71; Adm. Ex. 4). Following the hearing on November 27, 2007, Judge Murphy signed an order granting temporary custody to the father. (Tr. 35-36; Adm. Ex. 5).

After the proceeding of November 27, 2006, additional pleadings were filed. A further hearing was scheduled for February 8, 2008, regarding an agreement by the parties to transfer the case to LaSalle County. Judge Murphy said he did not recall if the case was set for the morning or for the afternoon. (Tr. 36, 47-48, 89). Mr. Schaps appeared on February 8, 2008, and presented an agreed order to transfer the case to LaSalle County. (Tr. 37, 48-49, 51). Judge Murphy informed Mr. Schaps that he had no problem with the case being transferred, but that he first wanted to have a hearing in regard to certain remarks in an affidavit of Kimberly Novak, which was attached to pleadings filed by the Respondent. Judge Murphy felt that the remarks "might violate [Supreme Court] Rule 137" or "alternatively that someone on my staff should be fired." (Tr. 37, 48-49, 51, 76). After Mr. Schaps said the Respondent was not available that day, Judge Murphy asked Mr. Schaps to call the Respondent and obtain a date for the hearing. A few minutes later, Mr. Schaps reported that the Respondent was on the phone and "wanted to do a telephone hearing in chambers." Judge Murphy and Mr. Schaps then went into the judge's chambers, turned the speaker phone on, and a "telephone hearing" was held. (Tr. 38, 50-51, 56-57).

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During the telephone hearing on February 8, 2008, Judge Murphy indicated he would transfer the case to LaSalle County, but that he first wanted to conduct a hearing as to statements made in the affidavits. (Tr. 38-39). The Respondent then said that Judge Murphy was a "narcissistic, maniacal mental case" who "should not be on the bench." Judge Murphy replied, without raising his voice, that he had no problem with the case going to LaSalle County. The Respondent then repeated the above comments about Judge Murphy a second time, and Judge Murphy wrote down the comments. Judge Murphy described the Respondent's tone of voice as "screaming at me." The Respondent said he was not going to appear in front of judge Murphy and hung up. (Tr. 38-41, 77).

Following the telephone conference on February 8, 2008, Judge Murphy sent the Respondent an order "warning him not to do it again." (Adm. Ex. 24). The Respondent then, on February 12, 2008, sent a letter to Judge Murphy. (Adm. Ex. 25 at 2). In the letter, the Respondent "pretty much repeated what he said on the phone." Judge Murphy sent a second order to the Respondent "warning him not to do this." (Adm. Ex. 25 at 1). (Tr. 41-42, 74). Judge Murphy testified that the Respondent's letter was attached to the order and made a part of the record. He explained that the Respondent made the letter "part of the court record by sending it to a judge;" and that "any letter you send to a judge becomes part of the record." (Tr. 46-47).

Judge Murphy further testified that the comments made by the Respondent did not affect the proceedings in the Solner case. (Tr. 55-56, 61). He also said that he did not take the comments personally, but felt they were "an attack on the judicial system, not me personally, and that's not a way to conduct business." (Tr. 42). Finally, Judge Murphy expressed the view that the Respondent's comments had a "very debilitating effect" on the court system." (Tr. 62).

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Joel Schaps

Joel Schaps testified that he is an attorney and represented Mr. Solner in the case of Solner v. Solner (96 D5 30578) in Cook County. In November 2007, Mr. Schaps filed an emergency petition to change the custody of the Solners' minor child to Mr. Solner, and notice was given to Mrs. Solner. (Tr. 97-98). Mr. Solner appeared in court, before Judge Patrick Murphy, at about 9 a.m. on November 27, 2007. (Tr. 98). The Respondent was present in court with Mrs. Solner. (Tr. 99). The Respondent asked for time to file a response and to prepare for a hearing, but Judge Murphy said he was going to hear the emergency petition that day. (Tr.101-02). The cases were recessed, and later reconvened. (Tr.100). The minor child was interviewed, but neither Mr. nor Mrs. Solner testified. (Tr. 113). At the end of the day, Judge Murphy ordered that Mr. Solner would have temporary custody of the child. (Tr. 101).

Subsequent to the emergency hearing in November 2007, the Respondent filed motions on behalf of Mrs. Solner. Mr. Schaps filed responses, and the matter set for hearing on the afternoon of February 8, 2008. (Tr. 92). Prior to February 8, 2008, Mr. Schaps agreed with the Respondent that the Solner case should be transferred to LaSalle County, and an agreed order for the transfer was prepared. Mr. Schaps appeared before Judge Murphy on the morning of February 8, 2008, and presented the agreed order to the judge. (Tr. 93, 112). Judge Murphy stated that he wanted the Respondent "to come to court." Mr. Schaps replied that the Respondent was not in court because of the agreed order. Judge Murphy said to pick another date, and Mr. Schap telephoned the Respondent from the judge's chambers. (Tr. 93).

When Mr. Schaps spoke with the Respondent by telephone from the judge's chambers, the Respondent said he wanted to talk to the Judge. Mr. Schaps then suggested a conference call. (Tr. 93-94). A secretary informed Judge Murphy of the conference call. Judge Murphy then

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went into his chambers with Mr. Schaps, and the conference call took place on speaker phone. (Tr. 94). During the conference call, the Respondent said "he wasn't going to appear, the case belonged in LaSalle County and then got kind of personal with the Judge." The Respondent said that Judge Murphy "was narcissistic, he was a mental case, maniacal and should be thrown off the bench." (Tr. 95). The Respondent made the foregoing comments in a tone that "was loud enough for the people outside his chambers to hear it" with the door shut. (Tr. 95). Judge Murphy "didn't counterattack so to speak but he was calm about it." The call then "ended abruptly." (Tr. 96).

Sometime after February 8, 2008, Mr. Schaps received from the Respondent a copy of a letter (Adm. Ex. 25 at 2) the Respondent sent to Judge Murphy. (Tr. 96-97).

Partial Transcript of the proceedings in In re Marriage of Solner, November 27, 2007, before Judge Patrick Murphy.

The proceedings that were transcribed commenced at 10 a. m. (Adm. Ex. 47 at 1). The transcript showed, however, that the Respondent and attorney Schaps had appeared earlier, without a court reporter being present. (Adm. Ex. 47 at 2). At that time Judge Murphy denied the Respondent's objection to the court's jurisdiction and ruled that he could hear the emergency motion. After the foregoing rulings, the Respondent filed a motion for change of judge as a matter of right. Judge Murphy ruled that the motion was untimely because the previous rulings had already been made. (Adm. Ex. 47 at 13-15, 47-49).

In making his rulings at the proceedings on November 27, 2007, Judge Murphy cited statutory provisions and court decisions. (Adm. Ex. 47 at 10, 13-15, 48, 49, 51).

The Respondent stated that Judge Murphy "made comments that [he] believed based upon the allegations in the petition that it was sufficient for a change of custody on an emergency basis." Judge Murphy responded that the Respondent was "misstating what I said. I said the

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allegations are enough for an emergency hearing . . . to determine a change of custody . . . But he's got put on evidence to prove it." (Adm. Ex. 47 at 4-5).

Judge Murphy stated to the Respondent "I know you wanted to make your record, Counsel. And, so I will let you do that now." Judge Murphy also said "I want to make sure that both Counsels have an opportunity to make a record. (Adm. Ex. 47 at 2). Later Judge Murphy said to the Respondent "[y]ou can call the stepfather and the mom today." The Respondent replied, "[n]o, I'm not going to proceed because I am not ready to proceed. I have not had any opportunity to prepare." Judge Murphy then said "[w]e'll give you a date at the earliest possible time." (Adm. Ex. 47 at 18).

Judy Heineken

Judy Heineken testified that she is an attorney, and has been an Administrative Law Judge for the Illinois Department of Children and Family Services (DCFS) since 1997. (Tr. 119-20, 141-42). The majority of cases that she has heard involved indicated findings of child abuse or neglect. She has seen statistics that show she has ruled in favor of DCFS in about 35 percent of her cases. (Tr. 121-22).

Ms. Heineken was the administrative judge in a 1998 case involving Christine Allison. The hearing in that case was held at the DCFS office in Bloomington, and the Respondent represented Allison. Ms. Heineken said she remembered the Allison case, but she also read the transcript of the hearing prior to her testimony in this matter. The allegations in the case were that Allison, who was a foster mother, engaged in acts of sexual penetration and sexual molestation with a 15 year old foster child. The Department has the burden of proof, by a preponderance of the evidence. (Tr. 122-24, 140).

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Ms. Heineken said that, when the Respondent walked into the room for the hearing in the Allison case, he "raised his hands [and] finger, in quotation marks and said so, this is my fair hearing." (Tr. 128). "Many times" during the hearing, the Respondent made hearsay objections. Ms. Heineken said that the statements of children are admissible "under the Department rules and the Administrative Procedure Act." (Tr. 129). At one point, the Respondent asked her if she was a lawyer. (Tr. 129). The Respondent also objected because Ms. Heineken, as an administrative judge, was employed by DCFS. Then, throughout the hearing, the Respondent referred to the DCFS attorney in the case of Ms. Heineken's "colleague or co-counsel." Ms. Heineken said that the Respondent also asserted that "since we both ultimately got paid for DCFS we were both against him and I could not be impartial because of my position and where I got my paycheck from." (Tr. 129-30). The Respondent also told her that he "would be embarrassed" to have her job, and told her "to get a job in the private sector." Ms. Heineken said she found the foregoing remark "offensive" and that the Respondent "was disparaging me personally and the whole administrative hearing process." (Tr. 132-33, 136).

The Respondent referred to the proceeding in the Allison case as a "kangaroo court." Ms. Heineken said that, by making such a comment, the Respondent "was telling me that he believed that it was a sham legal proceeding, that I could not possibly be fair or give his client a fair hearing." She further stated that the Respondent "was basically saying I was corrupt and unethical." (Tr. 130-31)

Ms. Heineken acknowledged that, at some point in the proceeding, she told the Respondent he could appeal. She explained "it was my way of saying to him that he's made his record and it was time to move on." (Tr. 136, 159). In fact, the Respondent did appeal, and both the circuit court and the appellate court affirmed her decision. (Tr. 139).

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Ms. Heineken described the Respondent's demeanor throughout the hearing in the Allison case as "antagonistic and very disrespectful toward myself and toward his opposing counsel." (Tr. 132). He did not use any obscenities or profanity. (Tr. 159). While the Respondent's conduct did not affect the ruling in the case, it did delay the hearing. Ms. Heineken explained that the "hearing took quite a few hours and given the small number of witnesses it normally would not have taken as long to understand the case, to hear the evidence." (Tr. 133-34). Ms. Heineken further stated that the Respondent's conduct "was very stressful to me personally. It was three or four hours of constant banting." (Tr. 137-38).

Transcript of the hearing In the Matter of Christine Allison, August 5, 1998, before Administrative Law Judge Judy Heineken.

The transcript of hearing shows that Ms. Allison was represented by the Respondent. (Adm. Ex. 29 at 2, 8). The Respondent objected to the proceeding on the ground that the attorney for DCFS at the hearing and the administrative law judge are employed by DCFS. The objection was overruled. (Adm. Ex. 29 at 14-15, 23, 138). Thereafter, the Respondent referred to opposing counsel as Ms. Heineken's "fellow employee." (Adm. Ex. 29 at 29-30). He also commented that Ms. Heineken was "an advocate and adversary to my position in everything that's done here with regard to rules of evidence and your own rules; her rulings "have entirely favored the Department;" and she "pretends to be impartial." (Adm. Ex. 29, at 139, 206, 229). After Ms. Heineken overruled an objection by the Respondent he said "how did I anticipate that with such an objective hearing officer." (Adm. Ex. 29 at 26, 148).

The Respondent also said to Ms. Heineken: "I would be embarrassed to have to take such jobs [like she had];" "you're so sensitive;" "nobody in this room is objective;" and "you need to go find a job in the private sector in the real world." (Adm. Ex. 29 at 30, 38, 124, 204).

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The Respondent made an objection to the admission of hearsay evidence, his objection was overruled, and it was recognized that he had a continuing objection to hearsay. (Adm. Ex. 29 at 25-30). Thereafter, the Respondent continued to make hearsay objections. (Adm. Ex. 29 at 46, 81, 85, 89, 90-91, 108-09, 116, 129, 130, 143, 193).

The Respondent described the administrative hearing as a "kangaroo court" and a joke." (Adm. Ex. 29 at 206, 230). He further stated "this is no more a fair hearing than they had in Russia when they were operating under the Soviet system" and "I don't pretend that this can be a fair hearing.' (Adm. Ex. 29 at 230-31).

The Administrative Hearing Record in the Christine Allison case.

The Administrative Law Judge, Judy Heineken, rendered a Recommendation and Opinion, dated September 25, 1998, in which she found that DCFS has shown by a preponderance of the evidence that the appellant sexually molested or penetrated the minor." (Adm. Ex. 30 at 118-28)

Order of the Circuit Court.

On July 2, 1999, the Circuit Court affirmed the decision of the Director of DCFS, which adopted the recommendation of the administrative law judge. (Adm. Ex. 31 at 1, 4). The Circuit Court also upheld the admission of hearsay statements at the administrative hearing; rejected the contention that the connection of the administrative law judge to DCFS was a violation of due process; and rejected the contention that administrative law judge was bias. (Adm. Ex. 31, at 2-4).

Appellate Court Decision.

The Appellate Court affirmed the decision of the Circuit Court in the Allison case. (Adm. Ex. 32 at 1, 12). The Appellate Court rejected Allison's contention that the administrative

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law judge improperly admitted out-of-court statements made by the minor and that such statements were inadmissible hearsay. (Adm. Ex. 32 at 3). The Appellate Court also rejected Allison's contention that she was deprived pf a fair hearing because the administrative law judge was an employee of DCFS. (Adm. Ex. 32 at 11). Finally, the Appellate Court stated that the "record further shows [Administrative Law Judge Heineken] was very patient and considerate in her conduct of the hearing even in light of [the Respondent's] constant badgering and show of disrespect for the ALJ and the conduct of the proceeding." (Adm. Ex. 32 at 12).

Robert Markoff

Robert Markoff testified that he has been an attorney since 1976, and his law firm, Markoff and Krasny, is located in Chicago. His law firm has four attorneys, and their practice is almost exclusively debt collection matters. (Tr. 212-13). He provided information about his background and professional activities. For example, he is currently the president of the National Association of Retail Collection attorneys; he is the chair of the Illinois State Bar Association's Commercial Banking and Bankruptcy Section Counsel; he is on the Executive Board of the Illinois Institute for Continuing Legal Education, and the General Editor of Institute's revised volume of Creditors Rights in Illinois; and he is a member of the Illinois Creditors Bar and Decalogue Society of Lawyers. (Tr. 214-16).

Mr. Markoff was the attorney for the plaintiffs in the case of Madoff & Madoff v. Glenwood Resort Owners Association, Cook County, 02 M1-152655. (Adm. Ex. 33). An arbitration proceeding was held, the defendant did not appear, and an award was entered in favor of the plaintiffs. (Adm. Ex. 33 at 54). Judgment was then entered on the award of arbitration. (Adm. Ex. 33 at 57). Mr. Markoff filed a citation to discover assets and about $14,000 in the defendant's bank account was ordered to be turned over to the plaintiffs. (Adm. Ex. 33 at 58-

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71). The Respondent filed a motion to vacate the default judgment (on the ground that neither the defendant nor the Respondent had received notice of the arbitration proceeding) (Adm. Ex. 33 at 73). (Tr. 218, 230-36, 250-52).

On February 1, 2005, the Respondent and Mr. Markoff appeared in court in regard to the motion to vacate. The court proceeding was held in an "antechamber" to the side of a large, ceremonial courtroom. The judge decided to continue the case so that the judge could review the court file. The Respondent continued to argue with the judge saying I don't see why I should have to come back to Chicago from Ottawa, Illinois on a case like this, that my opposing counsel is not an honorable person." The judge replied that "attorneys have responsibility to follow your own case," and if the Respondent continued to argue the judge would rule against him at that time. (Tr. 220-21, 2441-44). Thereafter, Mr. Markoff went into the larger courtroom to prepare a draft order. The court was no longer in session in the larger courtroom, but other attorneys were still present. (Tr. 222, 224, 244-45).

As Mr. Markoff was writing the draft order, the Respondent continued to argue. Mr. Markoff stepped away to the other side of the room and completed the order. He then handed the draft order to the Respondent. (Tr. 222-24, 245-46). When the Respondent handed the draft order back, the Respondent said to Mr. Markoff, "you must be from a Jewish law firm." (Tr. 225, 247). Mr. Markoff was "stunned," "shocked," and had a "look of surprise." The Respondent then said "you heard me right." (Tr. 225, 228, 247). Mr. Markoff testified that the Respondent comment is "etched in my memory." (Tr. 225). He also said he did not understand why anyone would make a "comment about my being of the Jewish faith," particularly in "the middle of a courtroom," and Mr. Markoff "took it as a provocation." (Tr. 228).

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Finally, Mr. Markoff acknowledged that the Madoff case was "civilly settled after negotiations." (Tr. 257; Adm. Ex. 33 at 101).

The Respondent

The Respondent testified that he was born in July 1948, has been married for 29 years, and has 3 adult children. His wife is a psychologist and has a Ph.D. She is employed as a school psychologist and director of special education. He has practiced law in Ottawa, Illinois since 1973. He was employed by another attorney for about four years, and then had a partner for several years. Thereafter he has been a solo practitioner. He described his practice as diverse. (Tr. 167, 259-61, 330-31).

The Respondent has no previous discipline (Tr. 258, 262), or any criminal convictions (Tr. 324). He mentioned various community activities in which he has been involved, such as the Lions Club; the Garden Club; a group that raises funds for and repairs houses for the poor and elderly; coaching youth baseball and softball; and the United Fund. (Tr. 325-26). Also, he has handled pro bono cases for Prairie State Legal Services, and stated that many of his clients are "financially challenged" and pay him reduced fees. He is a member of the Illinois State Bar Association, the LaSalle County bar, and has "participated in a lot of activities." (Tr. 326-29).

Count I

The Respondent admitted that he called Judge Patrick Murphy an "egomaniac" and "narcissistic" during a telephone conversation with the judge and another attorney on February 8, 2008, and in a letter dated February 12, 2008 (Adm. Ex. 25 at 2). (Tr. 168, 206, 288, 290). The Respondent said he did not remember calling Judge Murphy a "mental case," but "I may have said mental case." (Tr. 168). The Respondent contended that his statements regarding Judge Murphy were truthful and were based upon his reasonable belief. (Tr. 169, 209, 318, 323).

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The Respondent described the circumstances in which his comments to Judge Murphy were made. The ex-husband of the Respondent's client filed an emergency motion for change of custody of their minor child in Cook County. None of the parties resided in Cook County. The Respondent and his client, Kimberly Solner, appeared in the courtroom of Judge Murphy on November 27, 2007, in regard to the emergency motion. The Respondent said that he assumed the judge would give him "an opportunity to respond, to send the parties to mediation, and proceed in accordance with the law." However, that "wasn't done." (Tr. 291). When the Respondent, along with attorney Joel Schaps for the father, appeared before Judge Murphy, the Respondent objected to the proceedings and filed a motion for change of judge. At the time, the motion for change of judge was filed "there had been no hearing, no witnesses had been called, no arguments had been made, we hadn't even had a chance to file a response." (Tr. 296-97). The Respondent said that then Judge Murphy "looked at me with this kind of look on his face, [and said] motion denied." He described the look on Judge Murphy's face as a "smirk of a conceited type . . . as if he doesn't have to follow the law." (Tr. 298). Judge Murphy insisted that he was going to hear the case that day "because he, Patrick Murphy, was apparently above the law." (Tr. 299, 313).

Judge Murphy interviewed the minor child and sent the parties to a case management person. The Respondent said that nobody testified during the proceeding on November 27, 2008, and that his client "did not have an opportunity to testify." (Tr. 301). The Respondent also said that on each occasion he brought up a point of law "the judge would have the same look on his face, that he didn't care what it was, he was going to do what he decided was right regardless of the law." (Tr. 302). At the end of the day, Judge Murphy signed a handwritten order turning

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custody of the child over to the father, who was a "known substance abuse addict." (Tr. 171, 302).

About a week later, Judge Murphy signed a typed order. (Adm. Ex. 7). The Respondent said that the typed order was prepared by Judge Murphy "to cover his tracks so to speak," "that's an egomaniacal situation," and "it fits with my assessment . . . that this man doesn't care what the law is." (Tr. 303).

Subsequent to the November 27, 2007 proceeding, the Respondent filed various pleadings, including an objection to venue in Cook County and a motion requesting Judge Murphy to reverse his ruling denying a change of judge. Ultimately, the motions were set to be heard on February 8, 2008. (Tr. 303-04). The Respondent had discussions with opposing counsel, Mr. Schaps, and they reached an agreement to have the case transferred to LaSalle County. An agreed order was prepared, and Mr. Schaps was going to appear on February 8 and present the agreed order to Judge Murphy. (Tr. 304-08).

Between November 27, 2007, and February 8, 2008, the Respondent did research on Judge Murphy. He said he used the internet and read newspaper articles about Judge Murphy; he discussed Judge Murphy with people who had come in contact with the judge; he read about personality disorders in the DSM (Diagnostic and Statistical Manual of mental Disorders), and he discussed the matter with his wife, a psychologist. (Tr. 168-69, 313, 318-319). The Respondent also noted that he has handled "many cases dealing with mental disorders and illnesses." (Tr. 168). Based upon the above and on his own personal observation of Judge Murphy's behavior on November 27, 2007, the Respondent said he concluded, and had a reasonable belief, that Judge Murphy is a "egomaniac" and has a "narcissistic personality disorder." (Tr. 168-69, 206, 209, 288, 318, 329, 323).

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On February 8, 1008, the Respondent received a telephone call from Mr. Schaps. Mrs. Schaps told him that Judge Murphy would not sign the agreed order to transfer the case, and that Judge Murphy wanted the Respondent and his client to appear for hearing in regard to "something about [Respondent's] client not telling the truth." (Tr. 308). The Respondent said he asked Mr. Schaps why the judge would "be insisting we come up there," and Mr. Schaps "made a comment to the effect as well, you know how he is." (Tr. 309). The Respondent then asked to speak with the judge. Judge Murphy then came on the phone. The Respondent said that he believed the subsequent telephone conversation was between only Judge Murphy and the Respondent. (Tr. 310).

During the telephone conversation with Judge Murphy on February 8, 2008, Judge Murphy said he wanted the Respondent's client to appear and explain "some paragraphs in an affidavit that I have concluded were not true." The Respondent replied that the judge had improperly denied the motion for change of judge, the case is now being heard in LaSalle County, and "I'm not coming up there." The Respondent asserted that he said the foregoing things without yelling. (Tr. 310-11). Judge Murphy "became quite upset, raised his voice and said well, I'm not entering this [agreed] order until you come up here." (Tr. 311). The Respondent told Judge Murphy that "he was an egomaniac and appeared to have a narcissistic or a problem with narcissism." He "may have said mental case" as well. The Respondent asserted that he did not yell when he made the foregoing comments. (Tr. 168).

The Respondent testified that "after Judge Murphy became so upset "during the telephone conversation, he entered an order denying venue in LaSalle County and continuing the case for possible Rule 137 sanctions against the Respondent's client. (Tr. 312, 317; Adm. Ex. 22, 23). The Respondent said "I believe this was done in retaliation and as a result of his

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narcissistic personality disorder because one of the key symptoms of that disorder is that when a person is confronted with an error that they have made they tend to blame somebody else or attack somebody else that's involved in that transaction." (Tr. 317).

On February 12, 2008, the Respondent sent a letter to Judge Murphy. The letter contained the caption "In re Marriage of Solner, Court No. 96D530578." In the letter, the Respondent stated: "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." (Adm. Ex. 25 at 2-3; Tr. 171, 290).

The Respondent was asked what his purpose was in calling Judge Murphy egomaniacal and narcissistic. The Respondent replied "because by that time in fact I had determined that the case was not going to be any longer in his hands and I did intend . . . to send correspondence to the judicial inquiry board advising them what I believed was a serious problem with this Judge based on everything I had learned about him in my observation of his conduct. I wanted to alert him to the fact that in fact I did believe that and that's what was motivating him to force me and my client to come to Cook County after he had made the egregious error of turning the daughter over to a known substance abuse addict and jeopardizing her welfare." (Tr. 170-71). The Respondent also explained that a reason for sending the letter to Judge Murphy "was sort of a final way of determining whether he had that problem [narcissistic personality disorder]." (Tr. 210).

Count II

The Respondent testified that he represented Christine Allison in a criminal proceeding and then in an administrative proceeding in regard to the same incident. Ms. Allison was charged with the offense of criminal sexual assault on a 14-year old foster child. There was also an

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"indicated" finding by the Illinois Department of Children and Family Services (DCFS). This meant DCFS found credible evidence that she had committed the offense. (Tr. 263) Ms. Allison was found not guilty of the criminal charge following a bench trial in Livingston County, and the trial judge "expunged the entire record because he felt so strongly about the fact that the evidence was that poor." (Tr. 200-01, 264-66).

Following the criminal trial, the Respondent represented Ms. Allison at the DCFS administrative hearing before Administrative Law Judge Judy Heineken. The Respondent said that he attempted to have the alleged victim, who was then 17-years of age, and his younger brother subpoenaed to appear at the hearing, but DCFS refused to do so. (Tr. 265, 267). The Respondent also said that he was offended by the manner in which the administrative proceeding took place. His client had no criminal record and she had been acquitted of the criminal charge when witnesses' testimony rather than hearsay was presented. (Tr. 264, 266, 271).

The Respondent denied that he made a comment about a "fair hearing" when he first walked into the hearing room. (Tr. 266). He acknowledged that he told Ms. Heineken that he would be embarrassed to have her job. He explained that his purpose for this comment, and others, was to make a record to challenge the existing law that allowed the administrative law judge to be employed by DCFS, one of the parties in the case. (Tr. 173-74, 270). He said he was offended by a system where there is a "charade" in which the person "pretending to be an impartial arbiter of facts" is "employed by, directed, paid, trained and even shares offices in many cases with one of the adversary parties in the proceedings." (Tr. 172). He noted that he said only that he would be embarrassed to have Ms. Heineken's job, but did not say she should be embarrassed. (Tr. 173, 273).

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The Respondent testified that the entire case of DCFS at the administrative proceeding was based upon hearsay. In fact, he said Ms. Heineken allowed the attorney for DCFS to just slap the entire file down, have it marked as an exhibit and admitted the entire file, all the records and notes and subjective opinions and everything else that were written in there and admitted it into evidence in considering the case." (Tr. 268-69). He was offended by the way the proceeding took place, and his objection to the hearsay was "not a flippant issue." He was hoping that he was making a sufficient record so that a circuit or appellate judge would note the seriousness of his objections and the manner in which his client was treated at the administrative proceeding. (Tr. 200-02, 267, 270).

At one point during the administrative proceeding, the Respondent asked if he could speak with his client "in the room alone." Ms. Heineken agreed and left the room for "a few minutes." After Ms. Heineken returned to the hearing room, she "would interject and say don't speak so loud" while the Respondent was discussing "hearsay situation" with his client. Also, Ms. Heineken "kept being offended by the fact that I had said to my client I believed she was in error for that." (Tr. 272).

The Respondent also testified that he "did not attack" Ms. Heineken, he did not utter any obscenities, made no threats, and made no sexist comments. (Tr. 173, 272, 237). He explained that people may say "there's a few comments there that [he] shouldn't have made," but the "general thrust of my representation was that my client was not receiving a fair hearing . . . hearsay was being admitted without a proper basis . . . and I always objected . . . to the lack of impartiality of the . . .administrative law judge." (Tr. 270).

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Count III

The Respondent testified about the background of the case Maduff and Maduff v. Glenwood Resort Owners Association, Cook County, No. 902MI152655 (Adm. Ex. 33). Maduff and Maduff was a law firm seeking to be paid attorney fees for representing the Association. At some point, the Association filed an ARDC complaint against one of Maduff's attorneys. Robert Markoff represented the Maduff law firm in the case, and the Respondent represented the Association. (Tr. 274-76). The Respondent filed an answer and a jury demand. He and Mr.Markoff appeared in court on the case "at least twice." The case was then placed on the arbitration call. A date for the arbitration hearing was set, but the Respondent did not receive notice of hearing. Rather, the circuit clerk sent the notice to another attorney, Mr. Lehman, who had never been involved in the case. Mr Markoff appeared at the arbitration hearing and obtained a default judgment without the Respondent's knowledge. (Tr. 276-77).

A citation to discover assets was sent to a bank at which the Association deposited its funds. Someone from the Association called the Respondent and asked him why there was a garnishment on the Association funds. The Respondent then called Mr. Markoff. Mr. Markoff said to the Respondent "you should have followed the case." (Tr. 278-29) The Respondent filed a motion to vacate the judgment and attached an affidavit stating that he did not receive notice of the arbitration hearing. Mr. Markoff filed a response, and the matter was heard by Judge Healy on February 1, 2005. Judge Healy stated that the file could not be located. The Respondent asked the judge to consider his file stamped copy of the motion to vacate and his affidavit in lieu of finding the file, so that the Respondent would not have to return to Chicago in the matter. Mr. Markoff objected, and the judge continued the case to review the file. (Tr. 279-81).

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The Respondent testified that he believed Mr. Markoff had treated the Respondent's client "unethically," and he expressed his belief to Mr. Markoff while Mr. Markoff was preparing the continuance order. (Tr. 178-79) However, the Respondent also testified that "I adamantly deny that I made any comment to him about you must be from a Jewish law firm." (Tr. 284).

The Respondent "had to go back [to Chicago] two more times to finally get that vacated" (Tr. 282-84) before the case was ultimately settled (Tr. 287).

Other Matters

The Respondent testified that "you three gentlemen [of the Hearing Panel] I assume are picked by the opposing party, these people sitting at counsel table." (Tr. 176).

During a prehearing conference, the Respondent stated that the current Chair "just denied all these things [motions] just like the last guy [the previous chair]." (Adm. Ex. 41 at 14). The Respondent was asked what he meant by the foregoing comment and he said "I believe he had just summarily denied the same motions again without any real argument or anything and in fact that's what's occurred throughout this entire proceeding if you've noticed." (Tr. 193). He further explained "essentially the last chairperson without me even being present summarily denied the motions that I had filed and the new chairperson did exactly the same thing without any significant argument or ability to actually participate in any meaningful way." (Tr. 193). The Respondent also testified that "it's very obvious that this proceeding is not much different than the DCFS proceeding." (Tr. 190).

Also during the prehearing conference, the Respondent stated "the instant that there would be anything suggested that I had allegedly made an anti-Semitic comment, the ACLU wouldn't touch it because their primary funding (inaudible). Look it up sometime. That's

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actually one of the political reasons they attack Christian (inaudible) never raise an issue about funding that goes to Israel or anything like that." (Adm. Ex. 41 at 15). The Respondent was asked what he meant by the foregoing comments, and he refused to respond. He said this was not part of the complaint in this case and "if you didn't like what I said I'm sorry but that's my prerogative." He also said that he did call the ACLU, but that ACLU would take his case. (Tr. 187-88, 193-95).

Karen Donnelly

Karen Donnelly testified that she has worked at the Respondent's law office for 22 years. She is his secretary and paralegal. (Tr. 336-39).

She said that she has talked with lawyers, judges, the Respondent's clients, and others about the Respondent. Based upon such conversations, the Respondent has a reputation for being honest, ethical, and hardworking. (Tr. 339-41).

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 Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 972 (2006). This standard requires a high level of certainty, greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. In re Verett, 07 SH 105, M.R. 22567 (September 17, 2008) (Hearing Bd. at 24).

In determining whether the burden of proof has been satisfied, the Hearing Panel has the responsibility of assessing the credibility and believability of the witnesses, weighing conflicting testimony, drawing reasonable inferences from the evidence, and making factual findings based upon all the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126, 1133 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 Ne.2d 983, 987 (1991). In assessing the evidence the Hearing

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Panel is not required to be "na´ve or impractical" or to believe testimony that is "beyond human experience," "an unreasonable story," or "an inherent improbability." In re Discipio, 163 Ill. 2d 515, 523-24, 645 N.E.2d 906, 910 (1994); In re Holz, 125 Ill. 2d at 555, 533 N.E.2d at 821; Tepper v. Campo, 398 Ill. 496, 504-05, 76 N.E.2d 490, 494 (1948).

With the above principles in mind, and after carefully considering the testimony and exhibits, we make the findings set out below.

Count I

The evidence showed that on February 8, 2008, Judge Murphy declined to sign an agreed order to transfer a custody matter (In re Marriage of Solner) from Cook County to LaSalle County, as requested by the Respondent, counsel for the mother, and attorney Joel Schaps, counsel for the father. Judge Murphy voiced concern about certain statements made by the mother in an affidavit the Respondent had filed with the court and, before transferring the case, Judge Murphy wanted a hearing regarding those statements to determine if there was a Supreme Court Rule 137 violation. At the judge's request Mr. Schaps telephoned the Respondent from the judge's chambers for the purpose of obtaining an acceptable date for the hearing. The Respondent did not want to attend a hearing, asked to speak with Judge Murphy, and agreed to a telephone conference call. A telephone conference call was then held, with Judge Murphy and Mr. Schaps participating by speaker phone in the judge's chambers, and the Respondent by phone in his office. The evidence established, and the Respondent admitted, that during the conference call he called Judge Murphy "narcissistic" and "maniacal, and said Judge Murphy "should not be on the bench." The Respondent testified that he did not recall if he also called Judge Murphy a "mental case." However, both Judge Murphy and attorney Joel Schaps testified

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that the Respondent did call judge Murphy a "mental case" during the telephone conference. We found both Judge Murphy and Mr. Schaps to credible witnesses.

The Respondent contended that when he spoke with Judge Murphy by telephone on February 8, 2008, he did not know that Mr. Schaps was also participating in the conversation. We found the Respondent's testimony in this regard to be unbelievable and false. Mr. Schaps testified that he suggested a conference call and the Respondent agreed. Judge Murphy testified that Mr. Schaps told him that the Respondent wanted a telephonic hearing, and both Judge Murphy and Mr. Schaps testified that the speaker phone in the judge's chambers was turned on. We find it impossible to believe the Respondent thought that Judge Murphy was having an ex parte conversation with him about the pending case.

The Respondent also contended that he was not yelling at Judge Murphy during the telephone conference call. Again, we find the Respondent's testimony unbelievable and false. Judge Murphy testified that the Respondent was "screaming at me," and Mr. Schaps testified that the Respondent's voice was so loud that it could be heard outside the judge's chambers with the door closed.

The evidence also established, and the Respondent admitted, that he sent a letter to Judge Murphy, with a copy to Mr. Schaps, on February 12, 2008, and in the letter he stated that Judge Murphy has "serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a judge." The Respondent's letter was sent in response to an order issued by Judge Murphy on February 8, 2008.

We find that the Respondent's comments to Judge Murphy during the telephone conference on February 8, 2008, and in the Respondent's letter of February 12, 2008, were insulting, degrading, offensive, and demonstrated a lack of respect for a judicial officer. We also

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find that there was no legitimate purpose for the Respondent making such comments, and that the comments were made because the Respondent was angry with the judge for adverse rulings in the custody case.

The Supreme Court has stated that a "lawyer is an officer of the court" and "[u]pon admission to the bar, he must accept the imposition of certain standards of conduct, which , hopefully, are conducive to maintaining faith in the integrity of the legal profession and the judiciary." In re Sarelas, 50 Ill. 2d 87, 97, 277 N.E.2d 313, 318 (1971).

The Supreme Court has also stated:

Judges are not exempt from just criticism, and whenever there is proper ground for serious complaint against a judge it is the right and duty of a lawyer to submit his grievances to the proper authorities, but the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language and offensive conduct toward judges, personally, by attorneys who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted." In re Jafree, 93 Ill. 2d 450, 460, 444 N.E.2d 143, 149 (1982), citing People ex rel. Chicago Bar Association v. Metzen, 291 Ill. 55, 58, 125 N.E. 734, 735 (1919).

In this case, if the Respondent believed he had grounds for a grievance against Judge Murphy, he could present his claims to a proper authority. However, by choosing to make insulting and offensive comments to the judge, his conduct was clearly unnecessary, inappropriate, and exceeded acceptable bounds of professional conduct. The administration of justice and the very integrity of the courts are adversely affected by an attorney engaging in this type of disruptive and disrespectful behavior in response to adverse rulings by a judge. Because of the Respondent's obstreperous behavior, including his comments, his refusal to reasonably participate in the conference call, and refusal to appear, Judge Murphy found it necessary to issue otherwise unnecessary orders, or portions thereof, and the hearing regarding the possible

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Rule 137 violation was delayed and rescheduled. We agree with the following statement of Judge Murphy in his order of February 13, 2008:

The rule of law depends on a system where attorneys advocate vigorously, indeed aggressively, for their clients without succumbing to intimidation, threats, bullying and unduly insulting the trier of fact. Mr. Hoffman's comments brought disrepute not to this particular judge but to the practice of law in this state. (Adm. Ex. 24 at 2).

The conduct of the Respondent described above is clearly prejudicial to the administration of justice, tends to bring the courts and the legal profession into disrepute, and serves no legitimate purpose.

We also find that the Respondent had no reasonable basis for believing that his statements regarding Judge Murphy's mental condition or fitness to be on the bench were truthful. The Respondent contended that the factual basis for his conclusions was his observations of Judge Murphy's conduct and attitude during the proceedings on November 27, 2007. The Respondent said that after that proceeding he looked into Judge Murphy's background; talked with people who had contact with Judge Murphy; discussed Judge Murphy's conduct with Respondent's wife, who is a psychologist; relied upon his own experience in handling cases involving mental disorders and illnesses; and consulted the Diagnostic and Statistical Manual of Mental Disorders (DSM).

If the Respondent believed his statements that Judge Murphy was narcissistic, maniacal, had illusions of grandiosity, and should not be on the bench were true, his belief was based in critical part on his observations of Judge Murphy's conduct and attitude during the proceedings on November 27, 2007. However, after listening to the testimony and observing the demeanor of the Respondent, Judge Murphy, and Mr. Schaps, and after reviewing the partial transcript of those proceeding and the orders issued by Judge Murphy, we find that the Respondent's claimed belief regarding Judge Murphy was based upon the Respondent's conjecture and

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misrepresentation of the facts. (See In re Palmisano, 92 CH 109, M.R. 10116 (May 19, 1994) (Review Board affirmed Hearing Board's findings that Hearing Board found that the respondent had no factual basis for his statements and that they were made in retaliation for adverse rulings).

The Respondent testified that at the proceedings on November 27, 2007, Judge Murphy chose to retain jurisdiction of the opposing party's emergency petition for change of custody and denied the Respondent's motion for change of judge without regard for the law. According to the Respondent, Judge Murphy "did not follow the law," but "followed nothing." Instead, Judge Murphy had an "attitude of arrogance and conceit" and was going to do what he wanted "regardless of the law and that he was going to be God and that he, Patrick T. Murphy, knew better than anybody [and] didn't have to follow the law." The Respondent said that, in denying the Respondent's motion for substitution of judge, Judge Murphy had a "smirk of a conceited type of look on his face as if he doesn't have to follow the law." The Respondent also claimed that whenever he brought up a point of law, Judge Murphy "would have the same look on his face, that he didn't care what it was, he was going to do what he decided was right regardless of the law."

Contrary to the Respondent's testimony, the partial transcript of the proceedings on November 27, 2007, showed that Judge Murphy repeatedly cited to both statutory provisions and court decisions in support of his rulings. For example, in ruling that he had jurisdiction, Judge Murphy cited to section 602, 602.1, and 603, of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS, 5/101, et seq.). In regard to the Respondent's motion for change of judge, Judge Murphy explained, at least twice on November 27, 2007, that before the Respondent filed the change of judge motion, Judge Murphy had already ruled on and denied the Respondent's objection to jurisdiction and had determined that he would hear the emergency

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petition that day. Mr. Shaps agreed that the foregoing had occurred. Thus, Judge Murphy determined that the Respondent's motion for change of judge as a matter of right was untimely because it was filed after the judge had made a ruling on a substantial issue in the case and after the Respondent "had an opportunity to discern the Court's disposition towards the case." In support of his ruling, Judge Murphy cited appellate court decisions. We note that, pursuant to 735 ILCS 5/2-1001(a)(2), an application for substitution of judge as a matter of right is untimely if not filed before the judge "has ruled on any substantial issue in the case." In a typewritten order filed on December 3, 2007, Judge Murphy also set out the reasons for his denial of the Respondent's oral motion regarding lack of jurisdiction and cited statutory provisions in support his ruling. In the same order, Judge Murphy also explained, again, his basis for denying the Respondent's motion for change of judge, and cited the appellate court decision he previously cited on November 27, 2007.

In People ex rel. Chicago Bar Association v. Standidge, 333 Ill. 361, 364-65, 164 N.E. 844, 845-46 (1928), an attorney accused three appellate court judges of "willfully, wantonly, and corruptly making false findings against him" in a decision. The Supreme Court found the charge unjustified, stating that the "record fails utterly to support the charge," and that the appellate court "opinion evinces careful consideration of the evidence upon which the order for the preliminary injunction was based." Similarly in this case, the record simply does not support the Respondent's contention that Judge Murphy made rulings without regard to or in spite of the law, but affirmatively shows the contrary. Additionally, the testimony of Judge Murphy, who we found very credible, showed that he researched the various issues and sought to rule in accordance with the law.

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The Respondent also testified that Judge Murphy prepared the above mentioned order of December 3, 2007, "to cover his tracks so to speak," "[t]hat's an egomaniacal situation," and "fits in with my assessment . . . that this man doesn't care what the law is." We reject the Respondent's contention that the order somehow showed that Judge Murphy "doesn't care what the law is" when, in fact, Judge Murphy relied upon a statute and appellate court decisions in the order itself to support his rulings. Also, the contention that the order was issued to "cover his tracks" is gross speculation.

We agree with the following statement by the Hearing Board in In re Greanias, 01 SH 117, M.R. 19079 (January 20, 2004):

Thus, the mere fact that a judge or administrative officer makes a decision that an attorney believes is contrary to law or a particular decision does not give rise to a reasonable inference of deliberate misconduct. Such a decision could just as likely, if not more so, be the result of a good faith disagreement about the controlling law, disagreement as to how a decision should by applied to specific facts, or a simple mistake. (Hearing Bd. at 47).

The Respondent also testified that Judge Murphy had prejudged the case on November 27, 2007, because he had "already ruled that what's in that petition is adequate for a change of custody before we even start the case." The Respondent made this charge to Judge Murphy, and was told it was incorrect. Judge Murphy explained that the allegations in the petition were sufficient for a hearing, but not for a change of custody, and that a change of custody could only be ordered after a hearing and after the allegations were proved. Judge Murphy also noted that he has seen situations in which allegations were made, but not proven. Thus, the Respondent's suggestion that Judge Murphy had prejudged the case was not supported by the record and was pure conjecture.

The Respondent also stated that Judge Murphy granted custody on November 27, 2007, to the child's father who was a "known substance abuse addict." His testimony in this regard

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was highly misleading. The only evidence pertaining to the father's substance abuse came form the 14-year child who was the subject of the custody petition. The child testified that her father had a drug problem in the past, but that "he's been to rehab and he hasn't used since," that is for "three years." On cross-examination, the Respondent asked her if she had ever seen marijuana in his home, and she relied yes. Judge Murphy then asked her when was the last time she had seen marijuana in her dad's house, and she replied "three years ago." The child's testimony that her father had abstained for three years was not contradicted. The Respondent's client, the mother of the child, was present but chose not to testify. In light of the child's undisputed testimony, there was simply no evidence that the father was a "substance abuse addict" or would relapse at the time of Judge Murphy's order.

The Respondent contended that his client, the mother of the child, "did not have an opportunity to testify" at the hearing on November 27, 2007. This contention was refuted by the record and was clearly false. The transcript affirmative showed that Judge Murphy told the Respondent that his client could testify. Specifically, Judge Murphy said "[y]ou can call the stepfather and the mom today," and the Respondent declined to do. Judge Murphy also testified before us that he had asked the Respondent if his client was going to testify, and that the Respondent said no.

We also found that the Respondent's description of the telephone conference call on February 8, 2008, was inaccurate. The Respondent said that he did not yell at judge Murphy during that telephone call. However, both Judge Murphy and Mr. Schaps testified to the contrary, and we found them very credible. Judge Murphy testified that the Respondent was "screaming at me," and Mr. Schaps testified that the Respondent's voice was so loud that it could be heard outside the judge's chambers with the door closed. Judge Murphy also pointed out in his order of

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February 13, 2008, that the Respondent's tone during the conference call was "loud, abrasive and insulting." The Respondent also claimed that Judge Murphy "became quite upset" and "raised his voice" during the conference call. Both Judge Murphy and Mr. Schaps testified to the contrary.

The Respondent further asserted that "after Judge Murphy became so upset during that [February 8, 2008] conversation he entered what he called a possible Rule 137 sanctions order against my client," and "I believe that was done in retaliation and as a result of his narcissistic personality disorder." Contrary to the Respondent's assertion, it is clearly apparent from the record that Judge Murphy intended to have a "Rule 137" hearing regarding certain statements in the affidavit of the Respondent's client before the telephone conference was held. In fact, the purpose of the telephone conference was to obtain a date for that hearing. Consequently, the Respondent's claim that Judge Murphy issued the order for a Rule 137 hearing in retaliation for the Respondent's comments during the telephone conference was contrary to the facts in the record.

In In re Martin-Trigona, 55 Ill. 2d 301, 302 N.E.2d 68 (1973), an admissions case, the petitioner had charged that members of the Committee on Character and Fitness were "emotionally ill." In another matter, he filed a post-trial motion accusing a judge of "pathological antipathy" toward the petitioner and of being "temporarily mentally insane for the purpose of the proceeding." In a third matter, he filed a motion seeking a hearing to determine a judge's "sanity, competence and fitness to hold judicial office." The Supreme Court said the question in the case was "whether his propensity to unreasonably react against anyone whom he believes opposes him reveals his lack of responsibility, which renders him unfit to practice law." The Court concluded that the petitioner "lacks the qualities of responsibility, candor, fairness, self-restraint,

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objectivity, and respect for the judicial system which are necessary adjuncts to the orderly administration of justice." (55 Ill. 2d at 307-09, 312, 302 N.E.2d at 71-72, 74).

In People ex rel. Chicago Bar Association v. Standidge, 333 Ill. at 363-64, 366, 164 N.E. at 845-46, mentioned above, an attorney filed a civil suit against the three appellate judges after receiving an adverse decision from the court. He accused the three judges of "willfully, wantonly and corruptly making false findings against him." The Supreme Court stated that the "record fails utterly to support" the attorney's charges. The Court further stated that an attorney has a duty to maintain "a respectful attitude" toward the courts and, by bringing the charges against the appellate judges, the attorney "demonstrated a complete lack of the proper conception of his duties and responsibilities as a member of the bar." Similarly in this case, the record fails to support the Respondent's contention that Judge Murphy ignored the law or considered himself above the law. Rather, the statements and written orders of Judge Murphy showed that he repeated cited and sought to comply with the statutes and case law to making his rulings.

In In re Betts, 90 SH 49, M.R. 9296 (September 27, 1993), the attorney sent a letter to a judge and his opposing counsel regarding a "post dated" order he had received. The letter stated the following:

It is a large financial burden for me to have to make a useless trip to Paxton when it would seem that the source of the useless trip is caused by a false pleading of some sort that I received. That pleading was prepared, at least in part, between you and [the judge]. Since the pleading is obviously false and misleading and served without the benefit of law, the two of you should take it upon yourselves to remedy the situation without having to inconvenience me.

I have filed a motion to change judges and I see no reason why that motion will not be granted in light of the scandalous conduct of you and [the judge]. (Review Bd. at 12-13).

At a subsequent hearing, the judge explained that the date on the pertinent order was a "scrivener's error" and that he had amended the order on its face to show the correct date. Also,

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at that hearing, the attorney stated to the judge that "it's obvious that there's never going to be a fair trial in Ford County." The Review Board pointed out that the attorney's "statements were based solely on conjecture without any factual substantiation." (Review Bd. at 14). Based upon the foregoing, the attorney was found to have directed false accusations against a judge and another attorney, and engaged in conduct which is degrading to a tribunal, in violation of provisions of the Code of Professional Responsibility (which was in effect prior to August 1990). He also engaged in conduct which tends to bring the courts and the legal profession into disrepute, in violation of Supreme Court Rule 771 (now 770). (Review Bd. at 13-15).

Finally, we note a New York disciplinary case in which an attorney was found to have engaged in misconduct for calling a judge "corrupt" during a conference call. The Court stated that the attorney's comments were "derogatory, undignified and is excusable." In re Dinhofer, 690 N.Y.S.2d 245 (1999).

Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in Count I: (a) made statements the lawyer knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge, in violation of Rule 8.2(a) of the Illinois Rules of Professional Conduct; (b) in representing a client, the lawyer used means that have no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4; (c) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); 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.

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Count II

The misconduct charged in Count II arose from the conduct of the Respondent during an Illinois Department of Children and Family Services (DCFS) administrative hearing before Administrative Law Judge Judy Heineken in August 1998.

The transcript of the administrative hearing showed that the Respondent objected to the proceedings on the ground that the administrative law judge, Ms. Heineken, and the counsel for DCFS at the hearing were employed by DCFS. The Respondent also objected to the admission of hearsay evidence. The administrative law judge denied his objections. The transcript of the administrative hearing also showed that, as charged in the Complaint, the Respondent made the comments set out below to Ms. Heineken.

The Respondent said that the hearing officer "purports to be independent, which she obviously is not since she's employed by the same agency [as Respondent's opposing counsel];" "[w]e have a hearing officer who pretends to be impartial;" and the hearing officer "pretends she can rule [fairly]." Ms Heineken stated, on the record, that she would provide a "fair hearing;" " [m]y job is to decide things fairly and impartially;" and "[t]hat is what I'm going to do in this case, Counsel."

The Respondent said that Ms. Heineken was "personally acquainted with" the counsel for DCFS and his witnesses. Ms. Heineken replied that she had "[n]ever seen them before in my life." After Ms. Heineken made rulings the Respondent disagreed with, he stated "[h]ow did I anticipate that with such an objective hearing officer." The Respondent referred to his opposing counsel as Ms. Heineken's "fellow employee" and said he would be "embarrassed to have to take such jobs." The Respondent said he was "sorry" that Ms. Heinken was "so sensitive," and that "if you're so sensitive . . . maybe you should be my client." The Respondent said to Ms.

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Heineken "[o]bviously, you're an advocate and adversary to my position in everything that's done here with regard to the rules of evidence and your own rules." After Ms. Heineken told the Respondent "you can appeal me," he replied "[a]nd, 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."

The Respondent also said to Ms. Heineken that he "made statements disparaging of this hearing because it's as much of a kangaroo court as you could possibly have;" "this is a joke;" "this is no fair hearing;" "this is no more a fair hearing than they had in Russia when they were operating under the Soviet system;" and "this is a kangaroo court by definition." Finally, the Respondent said "I don't pretend that this can be a fair hearing. I don't pretend that a fair decision can be made based upon the statements that have been made by this hearing officer;" and "I have been treated with nothing but contempt and smirks."

We have reviewed the transcript of the administrative proceeding and found no comments by Ms. Heineken that indicated she would not be fair and impartial. Ms. Heineken testified before us, without contradiction, that she has ruled in favor of DCFS in only about 35 per cent of her cases. She also testified that she found the comments of the Respondent during the administrative proceeding to be "offensive" and that "he was disparaging me personally." She also said that by referring to the proceeding as a "kangaroo court," the Respondent "was telling me that he believed that it was sham legal proceeding," "I could not possibly be fair or give his client a fair hearing," and he was "basically saying I was corrupt and unethical." She further stated that the Respondent's conduct caused the hearing to take much longer than otherwise would have been necessary.

We agree with Ms. Heineken that the Respondent's comments to her were offensive and insulting. Also, by stating that the proceeding was a "kangaroo court" and that Ms. Heineken

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"pretends to be impartial," he accused her of being dishonest and bias. The Respondent had no legitimate reason for making the comments set out above, and he had no reasonable basis for believing such accusations were true.

When asked why he made the comments to Ms. Heineken, the Respondent said that he was offended by the system in which the administrative law judge and the counsel for DCFS were both employed by DCFS, and that he was "making a record." An attorney certainly has the right to zealously represent his or her client, make appropriate objections, and preserve issues for appeal. However, the Respondent went far beyond making objections or preserving issues, and exceeded the bounds of professional conduct. His offensive and insulting comments to the administrative law judge were completely unnecessary to preserve issues and make a record for appeal. We are unable to think of any circumstance in which insulting, offensive, and disrespectful comments like those by the Respondent would be necessary to make an objection or preserve an issue for appeal.

We note that the Respondent did appeal the decision in the administrative matter, and both the circuit court and the appellate court rejected his arguments regarding the improper use of hearsay and the conflict of interest arising out of the administrative law judge being employed by DCFS. In fact, the appellate court commented that Ms. Heineken "was very patient and considerate in her conduct of the hearing even in light of [Respondent's] constant badgering and show of disrespect for the ALJ and the conduct of the proceedings."

In In re Spears, 94 CH 579, M.R.11663 (December 1, 1995), the attorney was found to have engaged in misconduct by alleging in a pleading that a certain judge "held an unfair, kangaroo, show trial." The misconduct committed included using means that had no substantial purpose other than to embarrass, delay and burden a third person; making statements he knew to

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be false or with reckless disregard as to their truth or falsity; and engaging in conduct that is prejudicial to the administration of justice. (Hearing Bd. at 7, 18).

In a Nebraska disciplinary case the attorney referred to a court in a certain county as a "kangaroo court" and the judges thereof as "kangaroos." In finding that the attorney engaged in misconduct, the Supreme Court of Nebraska stated that the term kangaroo court "is one of contempt and utter disrespect." The Court also stated that, even if the attorney believed the characterization to be correct, "this certainly could be no defense" and a "lawyer of all people should know the proper procedures if he feels aggrieved." In re Rhodes, 131 N.W.2d 118 (1964).

In In re O"Shea, 02 SH 64, M.R. 19680 (November 17, 2004), another lawyer filed a complaint against O'Shea with the ARDC. In his responding letter to the ARDC, O'Shea made "degrading, insulting comments" about the other lawyer. The Review Board found that O'Shea violated Rule 4.4 because the comments in his letter "served no purpose other than to cause pain and embarrassment." (Review Bd. at 10-11).

Similarly, the comments the Respondent made to Administrative Law Judge Heineken served no legitimate purpose, but rather served only to embarrass, insult, and show disrespect to Ms. Heineken and the proceedings at which she was presiding. As stated by the Review Board in In re Zurek, 98 CH 45, M.R. 18164 (September 29, 2002), "Respondent in this case used his law license to insult and vilify others and to parade his contemptuous behavior, none of which can or should be tolerated." (Review Bd. at 16).

Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in Count II: (a) made statements the lawyer knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of an adjudicative officer, in violation of Rule 8.2(a) of the Illinois

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Rules of Professional Conduct; (b) in representing a client, the lawyer used means that have no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4; (c) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); 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 III

The misconduct charged in Count III pertains to a statement the Respondent made to another attorney, Robert Markoff. The evidence showed that Mr. Markoff represented a plaintiff in a debt collection matter and was granted a default judgment based upon the defendant's failure to appear at an arbitration hearing. The Respondent, the attorney for the defendant, filed a motion to vacate the default judgment. The Respondent and Mr. Markoff appeared in court on February 1, 2005. The Respondent requested the judge to vacate the default judgment because the notice of the underlying arbitration hearing was sent to the wrong attorney, rather than to the Respondent. Mr. Markoff objected. The judge stated that he wanted to review the court file, which could not be located at that time, before making a ruling. The Respondent did not want to return to court again on this matter, and asked the judge to consider his motion and accompanying affidavit in lieu of the file. The judge declined to do so and continued the case. Mr. Markoff then walked into an adjacent courtroom to prepare the continuance order. The Respondent approached Mr. Markoff, continued to argue, and voiced his belief that Mr. Markoff's conduct was unethical.

Mr. Markoff testified that while the draft order was being passed between them, the Respondent said to him "you must be from a Jewish law firm." Mr. Markoff said he was

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"shocked" and had a "look of surprise on his face." The Respondent then said "you heard me right." The Respondent denied that he made the foregoing remarks to Mr. Markoff.

We found Mr. Markoff to be a very credible witness and found that his testimony regarding the statements made by to Respondent to be certain. It is understandable why such statements would be, as Mr. Markoff stated, "etched in my memory" and that Mr. Markoff would find the remarks a "provocation." On the other hand we did not find the Respondent to be a credible witness.

It is clear to us that the Respondent's comment that Mr. Markoff must be from a Jewish law firm was meant to be insulting. The Respondent had alleged that Mr. Markoff had acted unethically, and the comment about being from a Jewish law firm clearly implied that there was a direct relationship between being unethical and being from a Jewish law firm.

In In re Ras, 01 CH 18, M.R. 18605 (March 19, 2003), the attorney was found to have engaged in misconduct by making a ethnic slur in a letter to another lawyer and in a pleading. The Review Board stated that the use of the ethnic slur "had no substantial purpose other than to degrade or harass" and "is deeply disturbing." (Review Bd. at 15, 18).

In In re Ingersoll, 186 Ill. 163, 180, 710 N.E.2d 390, 398 (1999), the Supreme Court noted in aggravation that Ingersoll's pro se cross-examination of a judge called as a character witness by the Administrator at the disciplinary hearing "was disrespectful and insulting." As described by the Hearing Board, Ingersoll asked the associate judge on cross-examination whether he had been appointed based on "the need for minority representation on the bench." (In re Ingersoll, 97 SH 84, (Hearing Bd, at 25-26).

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Likewise, in this case, we find the comments the Respondent made to Mr. Markoff to be disrespectful, insulting, disturbing, and made without any legitimate purpose. Comments of this type have no place in a courtroom or in the legal profession.

Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in Count III: (a) in representing a client, the lawyer used means that have no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4; (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.

RECOMMENDATION

The purpose of the attorney disciplinary system is not to punish the attorney for his or her misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981 (2006). In determining the appropriate sanction, we must consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000); In re Gorecki, 208 Ill. 2d at 361, 802 N.E2d at 1200.

Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other

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cases involving comparable misconduct." In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 1135 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473, 479 (1994).

In this case, the Administrator requested a sanction of suspension for one year and until further order of the Court. The Respondent contended that he did not engage in misconduct and that no discipline is warranted.

The misconduct that was charged and proved in this case was serious. The Respondent made insulting and disrespectful accusations about a judge's mental state and fitness to serve as a judge (Count I). The accusations were made during a conference call and in a subsequent letter. It is clear that there was no reasonable basis or legitimate purpose for the accusations. The Respondent also made insulting and disrespectful comments to an administrative law judge during the course of a hearing (Count II). Again, there was no reasonable basis or legitimate purpose for the comments. The Respondent also made insulting and offensive comment to another attorney by stating that the other attorney was unethical and "must be from a Jewish law firm." There was no legitimate purpose for such comment.

In In re Jafree, 93 Ill. 2d 450, 460, 444 N.E.2d 143, 149 (1982), the Supreme Court stated the "[u]just criticism, insulting language and offensive conduct toward judges, personally, by attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted." Similarly, in In re Phelps, 55 Ill. 2d 319, 322-23, 303 N.E.2d 13, 15 (1973), the Court said "[w]e cannot permit scurrilous charges or groundless lawsuits to be brought by an attorney against the judiciary or another attorney in his capacity as an officer of the court. Such conduct has been repeatedly held to be designed to bring the courts and the profession into disrepute." In In re Zurek, 99 CH 45, M.R. 18164 (September 29, 2002), the Review Board stated that the "Supreme Court long ago

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made it clear that it views unfounded attacks on the judiciary by attorneys as serious misconduct;" such behavior "not only has the potential to damage the reputation of the judge involved, but also to undermine confidence in the integrity of the entire judicial process;" and "harsh sanctions" have been imposed for such misconduct. (Review Bd. at 13, 15).

In In re Ras, 01 CH 18, M.R.18605 (March 19, 2003), an attorney's "offensive ethnic slurs" to another attorney were described as not only "vile," but "deeply disturbing," and served no purpose "other than to degrade or harass." (Hearing Bd. at 13, 15, 18).

There is mitigation in this case. The Respondent has practiced law since 1973 and has not been previously disciplined. One character witness, the Respondent's secretary, testified that he has a good reputation for honesty. The Respondent testified without contradiction that he has been involved in various community and bar activities, and that he has engaged in pro bono work and has handled cases for reduced fees. Also, the Respondent's misconduct was not directed at any of his clients, and no client was harmed by the Respondent's misconduct.

There is considerable aggravation. The Respondent's testimony showed he does not recognize that he engaged in misconduct. He did not show any understanding of the seriousness of his misconduct or any remorse for it. This is particularly troubling. In In re Samuels, 126 Ill. 2d 509, 531, 535 N.E.2d 808, 817 (1989), the Court stated that the respondent "still believes he acted properly in each of the four cases, which does not inspire confidence that respondent is ready to recognize his duty as an attorney and to conform his conduct to that required by the profession." In In re Mason, 122 Ill. 2d 163, 173-74, 522 N.E.2d 1233, 1238 (1988), the Court stated that an "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

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such misconduct." In In re Ras, 01 CH 18, M.R.18605 (March 19, 2003), the Hearing Board stated "[w]hile the Respondent's use of an ethic slur is deeply disturbing, even more troubling to us is his propensity to deny his misdeeds and his attempt to avoid repercussions by offering elaborately concocted explanations." (Hearing Bd. at 18). Finally, we find the following comments of the Hearing Board in In re Sax, 03 CH 99, M.R. 22139 (March 17, 2008), to be applicable in this case:

Respondent aggravated his misconduct by failing to recognize the seriousness of his misconduct and failing to express remorse for his misconduct. Respondent has failed to recognize that he has done anything wrong, much less understand the seriousness of his misconduct. He has also given no indication of remorse. These facts are entitled to significant weight because Respondent's misconduct was so obviously wrong that it is difficult to understand these failures . . . Even if Respondent did not realize he was engaging in misconduct at the time it occurred, he has had several years to reflect on his actions, and has failed to take any responsibility for his conduct. We believe that without acknowledgement of misconduct and an expression of remorse, Respondent is likely to repeat the misconduct. (Hearing Bd. at 49).

Not only did the Respondent show that he does not recognize or understand his misconduct proved in this case, but he has continued to engage in similar behavior during the course of his disciplinary proceedings. For example, after the Chair denied motions filed by the Respondent during a telephonic prehearing conference on January 5, 2009, the Respondent stated "[h]e just denied all these things just like the last guy [the previous Chair]." When asked what he meant by the foregoing comment, the Respondent explained:

I believe he had just summarily denied the same motions again without any real argument or anything and in fact that's what occurred throughout this entire proceeding if you noticed . . . I explained it that essentially the last chairperson without me even being present summarily denied the motions that I had filed and the new chairperson did exactly the same thing without any significant argument or ability to actually participate in any meaningful way.

The foregoing comments, which are similar to the comments the Respondent made to the administrative law judge (Count II), suggest that the Chair was bias, had prejudged matters,

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and/or would not give the Respondent a fair hearing. However, the suggestion that the Chair ruled on the motions without any "real" or "significant" argument is refuted by the transcript of the prehearing conference. The transcript shows that written motions were filed and both parties "briefed" the issues. Even though Rule 235 of the Rules of Attorney Registration and Disciplinary Commission provides that "no oral argument shall be allowed on motions," the Chair expressly inquired if either party wished to add to or supplement anything, and the Respondent made an oral presentation. Before ruling, the Chair asked the Respondent "do you have anything to tell us in addition to what you have briefed and submitted." Consequently, the Respondent's comments suggesting that the Chair was bias or used improper procedures in ruling on the motions had no basis in fact.

Also, during the prehearing conference on January 5, 2009, the Respondent said of the Administrator's counsel "she's a liar." Comments of this type are offensive and serve no legitimate purpose.

At the disciplinary hearing in this matter, the Respondent stated "you three gentlemen [the Hearing Panel] I assume are picked by the opposing party, these people sitting at [Administrator's] Counsel table." The foregoing comment is clearly false. The members of the Hearing Board are appointed by the Commission, not by the Administrator. (Supreme Court Rule 753(c)(1)). Members are assigned to a Hearing Panel by the Clerk of Commission, in accordance with the policies established by the Commission. (Rule 212 of the Rules of Attorney Registration and Disciplinary Commission). The foregoing comment by the Respondent falsely suggested that the Hearing Panel might be bias and unfair because of an inappropriate connection with the Administrator. Not only is such a comment offensive to the Hearing Panel Members,

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but it also tends to bring the disciplinary process established by the Supreme Court of Illinois into disrepute.

The Respondent also stated "[t]hey say people volunteer for it but I don't know anybody that I know that's ever served on one of these Panels;" "I know nothing about who is serving as the arbitrators on this case or whether they're well trained in the law or anything else;" and "do they know anything about constitutional law dealing with the issues of attorney free speech." Again, without any factual basis, the Respondent suggested that Panel Members may not be volunteers or even fit to serve on panels in disciplinary proceedings. Such comments also tend to bring the disciplinary process established by the Supreme Court of Illinois into disrepute.

The Respondent further stated that the procedures in this case is "not consonant with due process" and "so far in this hearing it's very obvious that this proceeding is not much different than the DCFS proceeding." As set out above in regard to Count II, the Respondent described the DCFS proceeding as a "kangaroo court" and a "joke," with a hearing officer "who pretends to be impartial." Thus, the Respondent's comments questioned the very integrity of the Hearing Panel, and are offensive and insulting. Again, the Respondent made comments that tend to bring the disciplinary process established by the Supreme Court of Illinois into disrepute.

In In re Kozel, 96 CH 50, M.R. 16530 (June 30, 2000), the respondent's behavior before the Hearing Panel was considered in aggravation. The Review Board stated that the respondent engaged in "extremely offensive attacks against the members of the hearing panel" and "contrary to [respondent's] arguments, that conduct is legitimately considered in aggravation." (Review Bd. at 19). One matter mentioned by the Hearing Board in Kozel was a motion of the respondent in which he "boldly stated that telephonic pre-hearing conferences are not permitted" and also "objected to a pre-hearing conference being held without a court reporter." The Hearing Board

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stated had the respondent investigated he would have been aware that "there is no requirement that all pre-hearing conference be held in person" and that "all pre-hearing conferences . . . are held in the presence of a court reporter. (Hearing Bd. at 35). Similarly in this case, if the Respondent had investigated he would have been aware that his allegations concerning the manner in which motions were presented and ruled on, and how Hearing Board Members are appointed and assigned were unfounded.

It is apparent from the Respondent's behavior during this disciplinary proceeding that he does not understand the nature of his misconduct or simply chooses to continue to make offensive and insulting comments with reckless disregard for their truth or falsity.

Finally in aggravation, we consider that the Respondent gave false testimony at the disciplinary hearing. As discussed in our findings, the Respondent testified falsely about what occurred during a hearing before Judge Murphy in November 2007 and during a conference call in February 2008 (Count I). He also testified falsely about what he said to attorney Robert Markoff in October 2004 (Count III). The Supreme Court has made it clear that "a lack of candor before the Hearing Board is a factor that may be considered in aggravation" (In re Gorecki, 208 Ill. 2d 350, 366, 802 N.E.2d 1194, 1202 (2003)), and that "an attorney's giving of false testimony in a hearing demonstrates a further unfitness to practice law" (In re Vavrik, 117 Ill. 2d 408, 415, 512 N.E.2d 1226, 1229 (1987)).

Cases in which attorneys have made numerous allegations against judges or administrative officers, without legitimate purpose or factual basis, have generally resulted in the sanction of disbarment or suspension until further order of the Court. See In re Jafree, 93 Ill. 2d 450, 444 N.E.2d 143 (1982)(disbarment); In re Palmisano, 92 CH 109, M.R. 10116 (May 19, 1994)(disbarment); In re Kozel, 96 CH 50, M.R. 16530 (June 30, 2000)(disbarment); In re

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Sarelas, 50 Ill. 2d 87, 277 N.E.2d 313 (1971)(suspension for 2 years and until further order of the Court); In re Phelps, 55 Ill. 2d 319, 303 N.E.2d 13 (1973) (suspension for 2 years and until further order of the Court); In re Greanias, 01 SH 117, M.R. 19079 (January 20, 2004) (suspension for 2 years and until further order of the Court); In re Denzel, 92 CH 114, M.R. 10694 (March 27, 1995) (suspension for 2 years and until further order of the Court). The Respondent's misconduct in this case did not involve numerous incidents or statements as in the foregoing cases. We note that in Jafree, the Supreme Court pointed out that the attorney's 10-year "legal career has been characterized by the filing of frivolous lawsuits and scurrilous charges." Jafree, 93 Ill. 2d at 462, 444 N.E.2d at 149. In this case, however, the Respondent has been practicing law since 1973 with no previous discipline, and his only misconduct involved three incidents that occurred in 1998, 2004, and 2008, respectively.

We also considered the cases of People ex rel. Chicago Bar Association v. Standidge, 333 Ill. 361, 363-64, 366, 164 N.E. 844, 845-46 (1928), and In re Mason, 33 Ill. 2d 53, 55-60, 210 N.E.2d 203, 204-07 (1965), which involved a single incident of inappropriate accusations against a judge. In Standidge, the attorney filed a lawsuit against three judges of the Appellate Court and charged them with "willfully, wantonly and corruptly making false findings against him" in a decision. The Supreme Court found that the attorney's charge against the judges was without support in the record and unjustified. The Court also stated that the attorney "demonstrated a complete lack of the proper conception of his duties and responsibilities as a member of the bar." The attorney was suspended for six months. Standidge, 333 Ill. at 363-64, 366. 164 N.E. at 845-46. In Mason, the attorney filed a lawsuit against a circuit court judge and others. The lawsuit alleged that the judge was "fraudulently" assigned to a case and then made rulings that the judge knew or should have known were "illegal" and "contrary to law." The attorney also contacted a

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newspaper reporter and said "I am going to file a suit that's going to shake hell out of the County" and "nail these officials and that damn judge." The Supreme Court found that the charges in the attorney's lawsuit were "unsubstantiated" and "totally frivolous." In mitigation, the attorney had not been previously disciplined. A suspension of one year was imposed. (33 Ill. 2d at 55-60, 210 N.E.2d at 204-07). We note that, in the case before us, the Respondent's misconduct involved more than a single incident and there is considerable aggravation. However, unlike in Mason, the Respondent did not seek publicity for his allegations against the judge or the administrative law judge.

It is apparent that the Respondent has serious anger issues. He has acted in an insulting and disrespectful manner in response to adverse rulings. He has also assumed, without reasonable basis, that adverse rulings were the result of bias, a refusal to follow the law, or some procedural unfairness. Also, as demonstrated at this disciplinary proceeding, he has made statements that are factually false in an attempt to justify his assumptions and overall conduct. Without his recognition of his anger issues, an understanding of the cause or causes of his anger and unfounded assumptions, and obtaining appropriate treatment, the Respondent presents a significant risk of engaging in similar misconduct in the future. The Supreme Court has stated "we believe the public should be protected from anger that would cause an attorney to disregard his professional responsibilities." In re Ushijima, 119 Ill. 2d 51, 60, 518 N.E.2d 73, 77 (1987).

On the other hand, the Respondent has actively practiced law since 1973 without previous discipline. Thus, he has apparently been able to practice law in a professional manner for more than 35 years, except for the three matters that are the subject of this current disciplinary case. He has provided pro bono services through Prairie State Legal Services and has represented "financially challenged" clients who pay him reduced fees.

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After considering the nature of the Respondent's misconduct, the aggravating and mitigating factors, the cases discussed above, and the purpose of a disciplinary sanction, the majority concludes that a disbarment or a suspension until further order of the Court is unnecessary in this case. Rather, the majority believes that a lengthy suspension, stayed in considerable part by a term of probation with conditions, would adequately protect the public, maintain public confidence in the legal profession, and provide the Respondent with the opportunity to continue to practice law while obtaining appropriate treatment to reduce the likelihood of future misconduct. The conditions of probation should include that the Respondent complete an anger management course, submit to a psychiatric examination, and comply with the ongoing treatment recommended, if any. See In re Prusak, M.R. 22666 (November 18, 2008)(a condition of probation was that the attorney "continue in his course of treatment for anger management"). While serving the actual suspension, the Respondent could make arrangements to comply with the foregoing conditions. In light of the Respondent's failure to recognize the nature or seriousness of his misconduct, the condition of probation that the Respondent comply with the Illinois Rules of Professional Conduct would provide the Respondent with a strong incentive not to engage in future misconduct. If he were to do so, his probation would be revoked, he would be required to serve the remainder of the lengthy suspension, and additional disciplinary charges could be brought against him.

Therefore, the majority recommends that the Respondent, Melvin H. Hoffman, be suspended from the practice of law for a period of three (3) years, with the last nineteen (19) months stayed by a period of probation for twenty-four (24) months, subject to the following conditions:

  1. Within the first 30 days of probation, the Respondent shall have enrolled in an anger management program approved by the Administrator, and thereafter complete such

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program and continue in any course of treatment recommended for anger management;

  1. Within the first 30 days of probation, the Respondent shall have made arrangements for a psychiatric evaluation by a psychiatrist approved by the Administrator, and thereafter comply with any course of treatment recommended by the psychiatrist;

  2. Respondent shall comply with the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigation relating to his conduct;

  3. Respondent shall provide to each qualified mental health professional treating him, an appropriate release, authorizing the treating professional to: (1) disclose to the Administrator on at least a quarterly basis information pertaining to the nature of the Respondent's compliance with any treatment plan established with respect to Respondent's condition; (2) promptly report to the Administrator Respondent's failure to comply with any part of an established treatment plan; and (3) respond to any inquiries by the Administrator regarding Respondent's mental or emotional state or compliance with any established treatment plans;

  4. Respondent shall keep the Administrator informed, as requested, of his current course of treatment, his attendance, and any change in the course of treatment;

  5. Respondent shall notify the Administrator within fourteen days of any change in treatment professionals;

  6. Respondent shall attend meetings scheduled by the Commission probation officer as requested by the Administrator. Respondent shall submit quarterly written reports to the Administrator concerning the extent of his compliance with the conditions of probation;

  7. Respondent shall notify the Administrator within fourteen days of any change of address;

  8. Respondent shall reimburse the Commission for the costs of this proceeding as defined in Supreme Court Rule 773 and shall reimburse the Commission for any further costs incurred during the period of probation;

  9. Probation shall be revoked if Respondent is found to have violated any of the terms of probation. The remainder of the period of suspension shall commence from the date of the determination that any term of probation has been violated; and

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  1. If Respondent successfully completes the term of his probation, the probation shall terminate without further order of the Court.

Date Entered: August 12, 2009

James R. Mendillo, with Charles E. King, Sr., concurring

PARTIAL CONCURRENCE AND DISSENT

I concur with the majority's findings of misconduct and with most of what is stated in the Recommendation Section of the Hearing Board Report. However, I respectfully disagree with the sanction recommended by the majority. I believe that, in light of the aggravation discussed below, a suspension until further order of the Court is warranted and that the Respondent should be required to serve an actual suspension of 12 months before the probation commences.

The Respondent's misconduct demonstrated a lack of respect for the legal system, the disciplinary system, and other members of the legal profession by making insulting and offensive comments to a Circuit Court Judge, on two occasions, and to an Administrative Law Judge throughout the course of an administrative hearing, without any legitimate reason for making such comments. He also made insulting and offensive remarks to another attorney by accusing the attorney of being unethical and then adding "you must be from a Jewish law firm."

While the Respondent's misconduct itself is serious, more worrisome to me is the fact that the Respondent failed to recognize that he did anything wrong and failed to show any remorse or repentance for his actions. As pointed out by the majority, the Supreme Court has voiced concern that the failure of an attorney to recognize, understand or show remorse for his or her misconduct makes it more likely that the attorney will repeat the misconduct in the future.

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In this case, the Respondent has demonstrated that he is likely to engage in similar misconduct in the future because, even after being charged with the misconduct, he engaged in similar behavior during the course of this disciplinary proceeding. For example, at a prehearing conference on January 5, 2009, the Respondent stated that the Chair "just denied all these things just like the last guy [the previous Chair]." (Adm. Ex. 41 at 14) When asked what he meant by the foregoing comment, the Respondent explained that the first Chair assigned to the case "summarily denied the motions," and the second Chair "did exactly the same thing without any significant argument or ability to actually participate in any meaningful. (Tr. 193). As discussed by the majority the Respondent's claim that there was no "significant" or "real" argument permitted is refuted by the record. The foregoing comments suggested that the Chair was biased and did not render a fair minded decision, and are similar to the comments the Respondent made to the Administrative Law Judge (Count II).

Also during the prehearing conference on January 5, 2009, the Respondent accused the Administrator's counsel of being "a liar." (Adm. Ex. 41 at 12). He also said "what they said at that seminar bears no relationship to what's going on here. It's a joke." (Adm. Ex. 41 at 14). Again this is similar to comments he made to the Administrative Law Judge. Furthermore, after being told that Counsel for Adjudication was present and "assist[s] the Chair in drafting orders and writing reports," the Respondent said "so that means the Commission has an employee who provides counsel for the Chairperson while they're the adversary party." (Adm. Ex. 41 at 24-25). Contrary to the Respondent's assertion, the Commission is not his adversary in this disciplinary proceeding.

The Respondent denied making the comment to attorney Markof that he "must be from a Jewish law firm." The Respondent is entitled to deny the charges against him, but we

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unanimously determined that Mr. Markoff's testimony established that the comment was made by the Respondent. However, the transcript of the prehearing conference on January 5, 2009, shows that the Respondent, without being asked about the ACLU and for no apparent reason, made the following comments:

First of all, the instant that there would be anything suggested that I had allegedly made an anti semitic comment, the ACLU wouldn't touch it because [of] their primary funding . . . That's actually one of the political reasons they attack Christians [and] never raise an issue about funding that goes to Israel or anything like that." (Adm. Ex. 41 at 15)

It is surprising and troubling to me that an attorney would make such comments during a disciplinary proceeding, and particularly when he is charged with making comments of an anti-semitic nature to another attorney.

The Respondent's reckless and insulting comments continued during the hearing in this matter. He stated "you three gentlemen [the Hearing Panel] I assume are picked by the opposing party, these people sitting at [Administrator's] Counsel table." (Tr. 176). The foregoing comment, which is clearly false, was offensive because it wrongfully suggested that the Hearing Panel was biased based upon an alleged relationship with the Administrator. The Respondent also stated "[t]hey say people volunteer for it but I don't know anybody that I know that's ever served on one of these Panels;" "I know nothing about who is serving as the arbitrators on this case or whether they're well trained in the law or anything else;" and "do they know anything about constitutional law dealing with the issues of attorney free speech." (Tr. 176-77, 202-03). Such comments suggested that Panel Members appointed pursuant to Supreme Court Rules are not really volunteers and may not be fit to serve. Such comments are insulting and tend to bring the disciplinary process established by the Supreme Court of Illinois into disrepute. The Respondent further stated that the disciplinary procedures are "not consonant with due process" and that it is "very obvious that this proceeding is not much different than the DCFS

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proceeding." (Tr. 177, 190). The Respondent was, in effect, asserting that this hearing was, as he described the DCFS hearing to be, a "joke," a "kangaroo court" and presided over by someone "who pretends to be impartial." (Adm. Ex. 29, at 206, 230-31). Thus, at the time of the hearing in this matter, the Respondent was still making comments similar to those that formed the basis of his misconduct.

In addition to the above, the Respondent, in an attempt to justify his comments to Judge Murphy, testified falsely about what occurred at the proceeding before Judge Murphy on November 27, 2007. This was discussed by the majority in the Findings of Fact and Conclusions of Law Section. However, I think it appropriate to highlight some of the Respondent's false testimony. The Respondent testified that at the proceedings on November 27, 2007, Judge Murphy, in retaining jurisdiction of an emergency petition for change of custody and denying the Respondent's motion for change of judge, "did not follow the law," but "followed nothing;" and "regardless of the law . . . he was going to be God and that he, Patrick T. Murphy, knew better than anybody [and] didn't have to follow the law;" and "he was going to do what he decided was right regardless of the law." (Tr. 171-72, 302). However, contrary to the Respondent's testimony, the partial transcript of the proceedings on November 27, 2007, shows that Judge Murphy repeatedly cited statutes and case law to support his rulings. (Adm. Ex. 47 at 10, 13, 14, 15, 17, 19, 48, 49). Thus, regardless of whether the rulings were legally correct, which is not a question for us to decide, the record affirmatively showed that Judge Murphy did not ignore or place himself above the law, but rather relied on the law in making his rulings. Likewise, in his order of December 3, 2007 (Adm. Ex 7), Judge Murphy explained his rulings and again cited statutes and case law.

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The Respondent further testified that at the hearing on November 27, 2007, his client, the mother of the child, "did not have an opportunity to testify contrary to his [Judge Murphy's] testimony by the way." (Tr. 301). The transcript of the proceeding shows that Judge Murphy expressly stated "[y]ou can call the stepfather and the mom today." (Adm. Ex. 47 at 18). Thus, both the contention that his client was not allowed to testify and the contention that Judge Murphy testified falsely about this matter were false.

The Respondent also testified that he assumed Judge Murphy would "send the parties to mediation," but "[t]hat wasn't done." (Tr. 291). The transcript shows that Judge Murphy stated "didn't I suggest that the parties go down to case management and have mediation today and didn't you refuse that request;" I have a mediator and case management . . . who can hear this case and work with this case immediately;" "I offered that to the parties and I thought that you guys said no." The Respondent replied "I did not say no or yes. We're not at that point in the case." (Adm. Ex. 47 at 7). Thus, the Respondent falsely suggested in his testimony that Judge Murphy refused to allow mediation.

The Respondent also testified falsely about the telephone conference that he had with Judge Murphy and attorney Schaps on February 8, 2008. The Respondent testified that he did not yell at Judge Murphy during that telephone call. (Tr. 168, 310-11) However, Judge Murphy testified that the Respondent was "screaming at me," and Mr. Schaps testified that the Respondent's voice was so loud that it could be heard outside the judge's chambers with the door closed. (Tr. 41, 95). The Respondent also testified that Judge Murphy "became quite upset" and "raised his voice" during the conference call. (Tr. 311) Judge Murphy and Mr. Schaps testified to the contrary. (Tr. 40, 96). The Hearing Panel found both Judge Murphy and Mr. Schaps to be credible witnesses. The Respondent further testified that Judge Murphy ordered a hearing on

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possible Rule 137 sanctions in "retaliation" for the Respondent's comments during the above conference call. (Tr. 317). Contrary to the Respondent's testimony, the record shows that the purpose of the conference call was to set a date for the Rule 137 hearing. Thus, Judge Murphy had decided to conduct a Rule 137 hearing prior to the conference call, not because of what was said during the conference call.

Even though the Respondent's testimony about what occurred when he appeared before Judge Murphy was, in critical part, false, the Respondent continues to assert that the judge is a "narcissistic, maniacal, mental case," which "interferes with [his] ability to act as a Judge." (Tr. 103, 105-06, 209, 363). Also, and without any evidentiary support, the Respondent continues to claim that others agree with him in this regard. (Tr. 106, 168, 209-10). Similarly, and without any factual basis, the Respondent continues to assert that Administrative Law Judge Heineken merely pretended to be impartial. (Tr. 146, 172, 174). Thus, the Respondent used the disciplinary system to continue to vilify a Circuit Court Judge and an Administrative Law Judge without reasonable basis or legitimate purpose.

Based upon the Respondent's failure to recognize that he engaged in misconduct, his failure to show any remorse, and his behavior and false testimony during this disciplinary proceeding, I find no basis to conclude that the Respondent is, at this time, able or willing to practice law in an ethical manner. I believe a significant period of actual suspension is necessary to impress upon the Respondent the seriousness of his misconduct and deter him from again engaging in similar misconduct. Thereafter, if the Respondent is able to comply with the conditions of probation for a period of 24 months, I believe he would have sufficiently demonstrated the ability to practice law in an ethical manner. However, if the Respondent does not comply with the conditions and his probation is revoked, a suspension until further order of the

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Court is necessary so that the Respondent would then be required to petition for reinstatement and prove to the Supreme Court that he is able and willing to practice law in an ethical manner.

I do not believe a suspension for a fixed period coupled with probation, as the majority recommends, is sufficient in this case. If the suspension is not until further order of the Court, the Respondent could violate the conditions of probation, or even refuse to participate in probation, and still be able to return to the practice law after three years without being required to file a petition for reinstatement. I respectfully disagree with such a sanction.

Therefore, I recommend that the Respondent be suspended from the practice of law for a period of three (3) years and until further order of the Court, with the last twenty-four (24) months stayed by a period of probation for twenty-four (24) months. The conditions of probation should be the same as those recommended by the majority, except for paragraph (j) which should state: "Probation shall be revoked if Respondent is found to have violated any of the terms of probation. The remainder of the period of suspension shall commence from the date of the determination that any term of probation has been violated and shall continue until further order of the Court."

Date Entered: August 12, 2009

Jack O. Asher, Chair