Filed April 23, 2010

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

In the Matter of:

STEVEN R. ROBERTSON,

Attorney-Respondent,

No. 6182196.

Commission No. 09 CH 61

REPORT AND RECOMMENDATION OF THE HEARING BOARD

DEFAULT PROCEEDING

INTRODUCTION

The hearing in this matter was commenced on January 21, 2010, at the Chicago offices of the Attorney Registration and Disciplinary Commission, before a Hearing Board Panel consisting of John B. Whiton, Chair, Adrienne D. Mebane, and Joseph J. Calvanico. The Administrator was represented by Marita C. Sullivan. Respondent, Steven R. Robertson, did not appear and was not represented by counsel.

PLEADINGS AND PRE-HEARING PROCEEDINGS

On August 17, 2009, the Administrator filed a three-count Complaint against Respondent. Counts I and II allege Respondent engaged in criminal conduct. The Administrator alleges in Count III that Respondent neglected a probate matter.

Respondent was personally served with the Administrator's Complaint on August 24, 2009. By order of the Chair dated September 17, 2009, Respondent was directed to answer or otherwise plead to the Administrator's Complaint and file a report pursuant to Commission Rule 253 on or before September 30, 2009. The order further stated if Respondent failed to file an

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answer by September 30, 2009, the allegations of the Administrator's Complaint would be deemed admitted without further hearing.

After Respondent failed to file an answer or other responsive pleading, the Administrator's oral motion to deem the allegations of the complaint admitted pursuant to Commission Rule 236 was granted on October 23, 2009. As a result of Respondent's failure to file a report pursuant to Commission Rule 253, his failure to file a response to the Administrator's Notice to Produce, and his failure to appear for deposition, the Administrator's Motion to Bar Respondent from Presenting any Evidence at the Hearing was granted on December 4, 2009.

THE EVIDENCE

Administrator's Exhibits 1 through 9 were admitted into evidence. (Tr. 14, 16).

Count I

On June 7, 1997, Respondent got into an argument with his wife while in a Batavia, Illinois, restaurant, El Taco Grande. Respondent, who was intoxicated at the time, slapped his wife on the right side of her face causing redness and swelling. Batavia police officers were called to the scene and Respondent's wife signed a complaint prepared by the officers. (Adm. Ex. 2).

At the time of this incident there was a criminal statute in Illinois, 720 ILCS 5/12-3.2(a)(1) outlawing domestic battery. By the actions described above, Respondent knowingly and without legal justification caused bodily harm to his wife. Accordingly, on June 16, 1997, the State's Attorney of Kane County filed a complaint against Respondent docketed as People of the State of Illinois v. Steven R. Robertson, No. 97 CM 3685, in the Circuit Court of Kane County, Illinois. The complaint charged Respondent with committing the offense of domestic

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battery in violation of 720 ILCS 5/12-3.2(a)(1). On July 31, 1997, Respondent pleaded guilty and was ordered to pay a fine to the clerk of the Circuit Court of Kane County in the amount of $200. (Adm. Exs. 1, 2).

Illinois Supreme Court Rule 761(a) requires that Respondent report his conviction to the Administrator of the Attorney Registration and Disciplinary Commission in writing. At no time has Respondent notified the Administrator of his conviction in writing.

Count II

On February 13, 2007, Respondent got into an argument with his 17-year-old daughter while at their home in Aurora, Illinois. Respondent squirted his daughter with a water bottle and in an ensuing struggle, when his daughter attempted to wrest the bottle from him, Respondent slapped her and scratched her neck. Respondent's daughter stated that she would telephone the police. Respondent threatened to "beat the shit out of" her if she called the police. Respondent's daughter then telephoned the police. (Adm. Ex. 3).

After the police arrived, Respondent's daughter signed a sworn statement attesting to the facts of the incident set forth above. At that time, an Aurora police officer prepared and signed a complaint against Respondent, placed him under arrest, and transported him to the Aurora Police Department, where he was held overnight. (Adm. Ex. 3).

At the time of this incident there were criminal statutes in Illinois, 720 ILCS 5/12-3.2(a)(1) and 720 ILCS 5/12-3.2(a)(2), which outlaw domestic battery and outlaw making contact of an insulting or provoking nature, respectively. By the actions described above, Respondent knowingly, and without legal justification, caused bodily harm to his daughter. Accordingly, on February 14, 2007, the State's Attorney of Kane County filed a two-count complaint against Respondent docketed as People of the State of Illinois v. Steven R. Robertson,

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No. 07 CM 746, in the Circuit Court of Kane County, Illinois. The complaint charged Respondent with violating 720 ILCS 5/12-3.2(a)(1) and 720 ILCS 5/12-3.2(a)(2). Respondent's daughter declined to cooperate with the Kane County State's Attorney's Office and on August 16, 2007, the State dismissed Respondent's criminal matter nolle prosequi. (Adm. Exs. 3, 4, 5).

Count III

On September 1, 2004, Respondent filed a Petition for Probate of Will and for Letters of Administration with Will Annexed ("Petition") in the Circuit Court of Cook County, in the matter docketed as In re the Estate of Fred H. Scott, 04 P 4286 ("Scott estate matter"). Prior to that date, Respondent agreed to represent Sheena Marsh in matters relating to the administration of the estate of her stepfather, Fred H. Scott. Respondent listed the approximate value of the estate as $111,000 and attached an exhibit to the Petition indicating that there were eight living heirs and that the addresses for two of those heirs were unknown. (Adm. Exs. 7,8).

Between September 1, 2004, and January 4, 2006, Respondent and Ms. Marsh, in her capacity as independent representative of the Scott estate, sold Mr. Scott's real estate, filed an order declaring heirship limiting the heirs to Mr. Scott's six sisters, satisfied the claims of creditors and disbursed the funds to the heirs. In February 2005, at the closing of the sale of Mr. Scott's real estate, Respondent received $1,950 to serve as his total legal fees for his representation of Ms. Marsh. (Adm. Exs. 6,7,8).

In February 2005, at the direction of Respondent, Ms. Marsh obtained a surety bond in connection with the sale of Mr. Scott's real estate. Between 2005 and 2007, DiDomenico Agency, the insurance agency that issued the surety insurance coverage, mailed the surety bond premium statements to Respondent. Respondent received the statements, but neither paid the invoice nor advised Ms. Marsh of his receipt of the statements.

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On May 17, 2007, DiDomenico Agency filed a complaint in the Circuit Court of Cook County against Ms. Marsh demanding payment for the prior two years for the surety bond relating to Mr. Scott's real estate in a case captioned Deedee's of Illinois, Inc., an Illinois corporation d/b/a DiDomenico Agency v. Sheena Bradley Marsh, 07-M1-149405. (Adm. Ex. 9).

On July 3, 2007, an ex-parte default judgment was entered against Ms. Marsh in the amount of $1690 plus costs. Ms. Marsh ultimately paid DiDomenico Agency $2,087. (Adm. Exs. 6, 9).

Between July 2007 and March 2009, Ms. Marsh called Respondent on at least three occasions to inquire about the status of the Scott estate matter. On each occasion Ms. Marsh left a message advising Respondent that she would have to continue to pay the surety bond until the estate was closed and requesting that Respondent call her. Respondent received the messages, but he did not return Ms. Marsh's telephone calls.

At the time of his representation of Ms. Marsh, 755 ILCS 5/28-11(b) required that a verified report be filed with the probate court to conclude a probate matter. At no time has Respondent file a verified report or concluded the administration of the Scott estate matter. Ms. Marsh has continued to pay the for the surety bond every year.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. Illinois Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill.2d 163, 168, 710 N.E.2d 390 (1999). Clear and convincing evidence constitutes a high level of certainty which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill.2d 477, 484-85, 577 N.E.2d 762 (1991).

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Having considered the Administrator's Complaint, the order deeming the allegations of the Complaint admitted, and Administrator's Exhibits 1-9, we find by clear and convincing evidence that Respondent engaged in the acts alleged and engaged in the misconduct as alleged in the Complaint. Specifically, we find Respondent:

  1. committed a criminal act, to wit, domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) and 720 ILCS 5/12-3.2(a)(2), that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct ("Rules")(Counts I and II);

  2. failed to provide competent representation in representing a client in violation Rule 1.1 of the Rules (Count III);

  3. failed to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3 of the Rules (Count III) ;

  4. failed to keep a client reasonably informed as to the status of a matter or comply with reasonable requests for information in violation of Rule 1.4(a) of the Rules (Count III);

  5. failed to notify the Administrator in writing within 30 days of the entry of a judgment of conviction in violation of Supreme Court Rule 761(a)(Count I);

  6. engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (Counts I, II and III); and

  7. engaged in conduct which tends to defeat the administration of justice or to bring the legal profession into disrepute in violation of Supreme Court Rule 770 (Counts I, II, and III).

RECOMMENDATION

Having found Respondent engaged in misconduct, we must determine the appropriate discipline. In making this recommendation, we take into account the goal of the disciplinary process is not to punish the Respondent, but to safeguard the public, maintain the integrity of the profession, and protect the administration of justice. In re Timpone, 157 Ill.2d 178, 623 N.E.2d 300 (1993). We also consider the nature of the misconduct, the aggravating and mitigating

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factors, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. In re Gorecki, 208 Ill.2d 350, 360-61, 802 N.E.2d 1194 (2003).

In addition to the proven misconduct, there are aggravating factors present in this case. Respondent's violent conduct with his wife and daughter, while not technically a pattern, certainly were not isolated incidents. Respondent's misconduct was also aggravated by the fact that it caused harm to Ms. Marsh and the reputation of the bar. As a result of Respondent's neglect, Ms. Marsh was required to continue to pay the premiums on the surety bond and was ultimately sued for her failure to do so.

Respondent's failure to answer the charges against him or to otherwise participate in this disciplinary process is also a significant factor in aggravation. See In re Samuels, 126 Ill.2d 509, 531, 535 N.E.2d 808, 817 (1989). The Court has recognized that an attorney's failure to cooperate in his own disciplinary proceedings is indicative of indifference toward and even contempt for disciplinary procedures that demonstrates a complete want of professional responsibility. See In re Brody, 65 Ill.2d 152, 156, 357 N.E.2d 498, 500 (1976).

In mitigation, we note that Respondent has not been previously disciplined. However, Respondent's prior good conduct is insufficient to outweigh the severity of his misconduct in this case. See In re Lewis, 138 Ill.2d 310, 562 N.E.2d 198 (1990).

Based upon the proven misconduct and the factors in aggravation, the Administrator suggests that Respondent should be suspended for a period of one year and until further order of the Court. In support of this recommendation, the Administrator provides numerous cases involving similar misconduct with a range of sanctions.

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Cases involving a straight six-month suspension include In In re Ebel, 08 CH 73, M.R.23137 (September 22, 2009)(attorney convicted of aggravated domestic battery after shaking his newborn son causing extensive injuries) and In re Fitzgerald, 98 CH 114, M.R. 19376 (May 17, 2004)(attorney arrested in two separate incidents involving the attorney's ex-girlfriend resulting in his conviction of aggravated battery and criminal damage to property). It is important to note that the attorneys in Ebel and Fitzgerald participated in their disciplinary proceedings.

In In re Karraker, 05 SH 41, M.R. 21231 (January 12, 2007), the attorney was suspended for six months with the suspension stayed entirely by a two-year period of probation after engaging in conduct including domestic battery and aggravated assault. The attorney participated in his disciplinary proceedings and presented substantial evidence in mitigation including his involvement in a recovery program for alcoholism.

The attorney in In re Keeton, 04 SH 117, M.R. 22345 (January 19, 2007), was convicted of misdemeanor battery arising from an altercation with an ex-brother-in-law and engaged in conduct with respect to an ex-girlfriend necessitating the entry of an order of protection against him. While the attorney participated in his disciplinary proceedings he was suspended for six months and until further or of the Court as a result of untreated mental health issues.

Cases submitted by the Administrator in which the Court imposed nine-month suspensions include In re Landry, 95 CH 446, M.R. 14025 (November 25, 1997)(attorney engaged in a sexual relationship with a client, was convicted of domestic battery, attempted to induce a witness not to testify against him in a criminal matter, and filed pleadings that intentionally degraded a party by making statements regarding the mental condition of the party that had no relevance to the case) and In re Morris, 02 CH 48, M.R.20753 (March 21,

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2006)(attorney forced two clients who could not afford his legal fees to have sexual relations with him and engaged in a conflict of interest in a separate matter). Again, these attorneys participated in their disciplinary proceedings.

Finally, in In re Applegate, 05 SH 40, M.R. 20961 (September 20, 2006), the attorney was suspended for three years and until further order of the Court. The attorney, who failed to participate in his disciplinary proceedings, was convicted of domestic battery, abandoned his law practice, failed to return unearned fees, and shared legal fees with a nonlawyer.

After reviewing the foregoing precedent, we believe Respondent's misconduct combined with the factors in aggravation is closer to the misconduct in the Applegate case than the misconduct involved in the other matters that imposed a shorter suspension. 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 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). Accordingly, we recommend Respondent be suspended for two years.

We also conclude that the record in this matter supports the suspension continue until further order of the Court. When, as in this matter, an attorney engages in serious misconduct and then compounds that by refusing to answer the charges or participate in the process, he should be required to make some affirmative showing that he has reformed his behavior and is willing and able to meet professional standards of conduct in the future before being readmitted to the practice of law. See In re Houdek, 113 Ill.2d 323, 497 N.E.2d 1169 (1986) (until further order of the Court restriction appropriate where there is a lack of evidence that respondent is willing or able to meet professional standards of conduct in the future); In re Levinson, 71 Ill.2d

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486, 376 N.E.2d 998 (1978) (suspension until further order of the Court imposed where respondent displays extraordinary disregard for the disciplinary proceedings instituted against him). In this matter, we believe that it is necessary that Respondent be required to affirmatively demonstrate his reformation and commitment to the legal profession before he is again allowed to practice law.

For the foregoing reasons, we recommend that Respondent be suspended for two years and until further order of the Court.

Date Entered: April 23, 2010

John B. Whiton, Chair, with Adrienne D. Mebane and Joseph J. Calvanico, concurring.