Filed January 24, 2011

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

In the Matter of:

BRUCE A. BRENNAN,

Attorney-Respondent,

No. 6193312.

Commission No. 09 CH 62

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on October 4, 2010, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC"), before a Hearing Board Panel consisting of Kenn Brotman, Chair, George P. Berbas, and K.F. Kitchen, II. The Administrator was represented by Meriel Coleman. Respondent appeared in person and represented himself.

PLEADINGS

On August 18, 2009, the Administrator filed a two-count Complaint against Respondent pursuant to Supreme Court Rule 753(b). Both Counts I and II allege that Respondent committed criminal acts that reflect adversely on his fitness. On September 17, 2009, Respondent filed an Answer to the Complaint in which Respondent admitted all of the factual allegations. Respondent denied all allegations of misconduct.

THE EVIDENCE

The Administrator presented the expert testimony of Dr. Stafford Henry. The Administrator's Exhibits 1 and 2 were admitted into evidence. Respondent testified on his own behalf and offered two exhibits. Respondent's exhibits were denied based on Respondent's

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failure to lay proper foundation.

Count I

At all times, 720 ILCS 550 4(b) provided that any person knowingly in possession of more than 2.5 grams, but not more than 10 grams of any substance containing cannabis is guilty of a Class B misdemeanor. On August 24, 2007, Respondent was arrested by the DeKalb County Police and charged with possession of more than 2.5 grams, but not more than 10 grams, of a substance containing cannabis in violation of 720 ILCS 550 4(b) at KJ's Tap in DeKalb. The matter was docketed as People v. Brennan, 07 CM 1811, in the Circuit Court for the Sixteenth Judicial Circuit, DeKalb County. (Resp. Answer).

On October 24, 2008, Respondent pled guilty to unlawful possession of cannabis and the court sentenced Respondent to 18 months of court supervision and fined him $500 plus court costs. (Resp. Answer)

Count II

At all times relevant, 625 ILCS 5/11-501(a)(2) provided, in part, that a person shall not drive or operate a motor vehicle while under the influence of alcohol. At all times relevant, 625 ILCS 5/11-501(c), provided, in part, that a person who operates a motor vehicle while under the influence of alcohol is guilty of a Class A misdemeanor. (Resp. Answer).

On April 8, 1994, at about 7:30 p.m., Respondent was observed by Batavia Police Officer Timothy D. O'Brien driving on the shoulder and weaving from lane to lane into oncoming traffic while heading westbound on Fabyan Parkway at Randall Road in Batavia. At that time, Respondent was arrested and charged with driving under the influence of alcohol, in violation 625 ILCS 5/11-501(a)(2). The matter was docketed as People v. Brennan, 94 TR 017240, in the Circuit Court for the Sixteenth Judicial Circuit, Kane County. (Resp. Answer).

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On May 4, 1994, Respondent pled guilty to driving under the influence. The court sentenced Respondent to one year of court supervision and ordered him to pay $680 in fines and court costs. Respondent was also ordered to complete an alcohol/drug treatment program. On April 28, 1995, after completing an alcohol treatment program, Respondent was discharged from court supervision. (Resp. Answer).

Evidence Offered in Mitigation

Respondent is 55 years old and has been practicing law since 1986. Respondent is married and resides in DeKalb, Illinois. Respondent has not been previously disciplined. Respondent stated that he has not smoked marijuana for three years. Respondent stated that he has not had any alcohol since mid-February 2010. Respondent stated that for the last 15 years, he has abstained from drinking alcohol during the Lenten season. On March 3, 2010, Respondent suffered a stroke. Respondent stated that he suffers from obesity, hypertension and diabetes. Respondent is scheduled to have rotator cuff surgery which will require rehabilitation. (Tr. 59, 62-63, 65).

Respondent stated that he is active in his church and the community. He has been appointed counsel in two inmate actions. He donates his time for "Law Day." Respondent has been appointed pro bono GAL in DeKalb County on several occasions. (Tr. 63-64).

Expert Testimony

Dr. Stafford Henry

Dr. Stafford Henry is triply board-certified in general psychiatry, forensic psychiatry and addiction psychiatry. Since 1995, Dr. Henry has been in private practice. Dr. Henry performs both assessment and treatment services. His practice involves general psychiatry, treatment of general psychiatric disorders, as well as forensic and addiction psychiatry. Dr. Henry stated that

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the vast majority of his practice relates to professionals such as physicians and attorneys. Dr. Henry submitted a current and accurate curriculum vitae. The Chair recognized Dr. Henry as an expert in the fields of forensic psychiatry, addiction psychiatry and general psychiatry. (Tr. 9-14; Adm. Ex. 1).

On January 6, 2010, Dr. Henry met Respondent in Chicago for his court ordered evaluation. Dr. Henry and Respondent met for two hours. In preparation for the evaluation, Dr. Henry reviewed the ARDC complaint and Respondent's answer. Dr. Henry also reviewed the court files related to the 1994 and 2007 criminal cases. Dr. Henry stated that he was unaware of any prior diagnosis. Dr. Henry stated that his evaluation consisted of reviewing all available data and a face-to-face evaluation of Respondent. (Tr. 17-18).

After interviewing Respondent, Dr. Henry stated that he formulated opinions regarding a diagnosis and recommendation for treatment. Dr. Henry stated that his diagnosis of Respondent was alcohol dependent and probable cannabis abuse. Dr. Henry stated that the cannabis abuse diagnosis was probable because Respondent empathically refused to submit to any laboratory testing. (Tr. 25-26; Adm. Ex. 2).

Based on his diagnosis, Dr. Henry opines that Respondent could benefit from a treatment protocol for his substance use. Dr. Henry stated that Respondent would benefit from a course of intensive outpatient chemical dependency treatment. After completing that course of intensive outpatient treatment, Respondent would benefit from aftercare, which is a fairly common follow-up in which, once a week for a period of one year, an individual goes to a group with other individuals struggling with issues of chemical dependency who have just completed primary treatment. Dr. Henry stated that Respondent would benefit from involvement in a 12-step program, being urine-monitored for accountability purposes and having contact with a sponsor

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with whom Respondent would regularly remain in contact. (Tr. 32-33).

After considering Respondent's statement that he has not consumed alcohol since February 2010 or marijuana since 2007, Dr. Henry gave his opinion of whether Respondent could be considered "cured." Dr. Henry stated that no, Respondent was not cured because no one is ever cured of chemical dependency. One can only be in remission and an individual is always at risk for relapse. Further, Dr. Henry stated that it was his clinical experience that when an individual truly is in recovery, they will very willingly submit to laboratory tests because it proves them to be telling the truth. (Tr. 51).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). It is the responsibility of the Hearing Panel to determine the credibility of the witnesses, weigh conflicting testimony, draw reasonable inferences, and make factual findings based upon all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 308 (1993). With the above principles in mind and after careful consideration of the testimony, exhibits and Respondent's admissions, we make the following findings.

In Counts I and II, Respondent is charged with:

  1. Committing a criminal act that reflects adversely on the lawyer's fitness by being in possession of cannabis in violation of 720 ILCS 550 4(b), in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct;

  2. Committing a criminal act that reflects adversely on the lawyer's fitness by driving under the influence of alcohol, in violation of 625 ILCS 5/11/-501(a)(2), in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct;

  3. Engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

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  1. Engaging 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.

By Respondent's admission, the panel finds that Respondent engaged in criminal activity when he pled guilty to unlawful possession of cannabis in 2007. In addition, Respondent engaged in criminal activity in 1994 when he pled guilty to driving under the influence of alcohol. Therefore, the panel finds that the Administrator met the burden of proof by clear and convincing evidence that Respondent violated Rule 8.4(a)(3) on two separate occasions.

Although Respondent denied that he violated Rule 8.4(a)(5) and Supreme Court Rule 770, the panel finds that these charges were also proven. It is well established that attorneys are held to a high standard, particularly with regard to upholding the law. See In re Lunardi, 127 Ill. 2d 413, 421, 537 N.E.2d 767, 770 (1989); In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1, 3 (1985).

RECOMMENDATION

The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. In re Howard, 188 Ill. 2d 423, 434, 721 N.E.2d 1126 (1999). We should not recommend a sanction which will benefit neither the public nor the legal profession. In re Leonard, 64 Ill. 2d 398, 406, 356 N.E.2d 62 (1976). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 298, 583 N.E.2d 526 (1991).

The Administrator recommends that Respondent be suspended from the practice of law for one year and until further order of the Court. Further, the Administrator recommended that Respondent's suspension be stayed in its entirety upon Respondent's successful completion of the conditions set forth by Dr. Stafford Henry. In support of his recommendation, the Administrator offered the following cases: In re O'Malley, 05 CH 18, M.R. 20582 (Jan. 13,

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2006) (attorney suspended for one year and until further order of the Court, with the suspension stayed in its entirety by a two year period of probation, subject to conditions. The attorney was found guilty of driving under the influence of drugs, unlawful possession of cannabis and resisting a peace officer. Prior to his trial, the attorney tested positive for cocaine on three occasions.); In re Stephens, 01 SH 105, M.R. 18160 (Sept. 19, 2002) (attorney was convicted for possession of less than fifteen grams of a controlled substance. The attorney was suspended for twelve months and until further order of the Court, with the suspension stayed and placed on probation for a period of 24 months.); and In Re Karraker, 05 SH 41, M.R. 21231 (Jan. 12, 2007) (attorney was charged with the crimes of Domestic Battery against his wife and Aggravated Assault against a police officer. The attorney pleaded guilty to the reduced charge of disorderly conduct. The attorney was suspended from the practice of law for six months, with the suspension entirely stayed by a two year period of probation subject to conditions.) Respondent recommends that he be censured and required to submit to drug testing for a pre-determined length of time.

While every case is unique, we find the following cases instructive in determining the proper recommendation for a sanction:

The attorney in In re Larson, 07 SH 10, M.R. 21782 (Sept. 18, 2007), was found guilty of driving under the influence of alcohol on two separate occasions within a two year period. The attorney had no prior discipline and cooperated fully during the disciplinary proceeding. At the time of hearing, the attorney had not consumed alcohol for several months and was engaged in ongoing treatment to maintain abstinence. By approved consent, the attorney was suspended from the practice of law for sixty days and until further order of the Court. The suspension was stayed in its entirety by a two year period of probation.

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In In re Hubbard, 04 CH 135, M.R. 20917 (Sept. 20, 2006), the attorney was convicted of driving under the influence and disorderly conduct on two separate occasions. It was determined that the attorney suffered from mental health issues and substance abuse. Having no prior discipline, the attorney was suspended from the practice of law for six months, until further order of the court, stayed in its entirety by two years of probation.

The attorney in In re Lamoreaux, 05 CH 17, M.R.20486 (Nov. 22, 2005), was arrested and charged with DUI. Following her arrest, Respondent was involved in an altercation with officers, during which she pushed a cell door into an officer, injuring that officer's wrist. Respondent subsequently pled guilty to the misdemeanor charges of battery and DUI and was sentenced to 18 months supervision. By approved consent, the attorney was suspended for three months and until further order of court, with the suspension stayed in its entirety by a two-year period of probation with conditions.

Along with the above stated case law and proven misconduct, we consider factors of mitigation and aggravation. In mitigation, Respondent has no prior discipline. And while no character witness testimony was offered, Respondent testified to his service to the community, his church and the legal profession. We also note that Respondent's clients were not harmed by his misconduct. Finally, we note that Respondent's DUI conviction occurred in 1994, with no further substance abuse issues until 2007. In aggravation, Respondent did not fully cooperate with the Administrator's request for Respondent's psychiatric evaluation.

Based on the proven misconduct, precedent and factors of mitigation and aggravation, the panel recommends that Respondent be suspended from the practice of law for 4 months stayed in its entirety by a one year period of probation subject to the following conditions:

  1. Respondent shall abstain from the usage of alcohol and any unprescribed controlled substances;

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  1. Respondent shall commence within the first thirty (30) days of probation, and thereafter comply with, the course of treatment recommended by a qualified alcohol treatment professional acceptable to the Administrator, including following all treatment recommendations and the taking of medications as prescribed (while the Substance Abuse Assessment of Angela Johns was not admitted into evidence, the Panel suggests that the Administrator approve Ms. Johns as an acceptable treatment professional due to her proximity to Respondent and Respondent's apparent comfort level with Ms. Johns.);

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

  3. Respondent shall provide to the qualified alcohol treatment professional 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 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 compliance with any established treatment plans;

  4. Respondent shall notify the Administrator within fourteen (14) days of any change in treatment professionals;

  5. Respondent shall, upon request by the Administrator, submit to random substance testing by a mental health professional or facility, within DeKalb County or within a reasonable distance to Respondent's home and/or office, approved by the Administrator, within in eight (8) hours of receiving notice by the Administrator that he shall submit to the testing. The results of the tests shall be reported to the Administrator. Respondent shall pay any and all costs of such testing;

  6. Respondent shall report to the Administrator any lapse in his sobriety or usage of any unprescribed controlled substances within 72 hours of that usage;

  7. 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 his compliance with the conditions of probation;

  8. Respondent shall notify the Administrator within fourteen (14) days of any change of address;

  9. 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;

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  1. 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; and

  2. Probation shall be revoked if Respondent is found to have violated any of the terms of probation. The four (4) month period of suspension shall commence from the date of the determination that any condition of probation has been violated.

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

Date Entered: January 24, 2011

Kenn Brotman, Chair, George P. Berbas and K.F. Kitchen, II, Hearing Panel Members.