Filed August 23, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
BRUCE PAUL GOLDEN,
Commission No. 09 CH 88
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on January 19, 2011, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Panel of the Hearing Board consisting of Michael C. Greenfield, Chair, Roxanna M. Hipple, and Cheryl M. Kneubuehl. Tracy L. Kepler appeared on behalf of the Administrator. Respondent appeared pro se.
PLEADINGS AND PREHEARING PROCEEDINGS
On August 24, 2009, the Administrator filed a four-count Complaint charging Respondent with misconduct in connection with applications for financial aid from a school attended by his daughter, and for failure to cooperate with the ARDC. Counts I through III charged Respondent with submitting false information to his daughter's school (Francis W. Parker School, Chicago, Illinois) for each of three school years in an effort to obtain financial aid to which Respondent's family would not have otherwise been entitled. Count IV charged Respondent with failing to respond to a lawful demand for information from a disciplinary authority.
Ultimately, the allegations of the Complaint were deemed admitted and Respondent was barred from presenting substantive evidence, given his conduct during the prehearing stage of these proceedings.
Respondent was served on August 27, 2009 with copies of the Complaint and accompanying documents, including the Rules of the Supreme Court of Illinois and Prehearing Conference Procedures Memorandum. Under Commission Rule 231, Respondent was due to have responded to the Complaint by September 17, 2009. He had not done so by October 5, 2009, and the Administrator filed a Motion to Deem the Allegations of the Complaint Admitted Pursuant to Commission Rule 236. This Motion was entered and continued at the initial prehearing conference, on October 6, 2009, and the Chair gave Respondent until November 12, 2009 to respond to the Complaint. While Respondent denied having received service of the Complaint and asserted he did not know a Complaint had been filed, the Commission file contains an entry to the effect Respondent was personally served with a copy of the Complaint on August 27, 2009.1
On November 12, 2009, Respondent filed a Motion to Dismiss Complaint ("Motion to Dismiss"). The Motion to Dismiss was based on Respondent's allegations that: 1) the witnesses identified in the Administrator's Rule 253 Report were not competent to testify; 2) certain witnesses identified by the Administrator had "unclean hands" so as to bar them from testifying; 3) Respondent's wife was an indispensable party, required to be joined in this case; and 4) no public interest was implicated inasmuch as Respondent was no longer practicing law and the alleged misconduct occurred in the past.
The Motion to Dismiss was denied at the December 1, 2009 prehearing conference. The Chair gave Respondent until January 4, 2010 to answer or otherwise respond to the Complaint
and directed Respondent to file a report pursuant to Commission Rule 253. Respondent's Rule 253 Report had been due on September 24, 2009. See Commission Rule 253.
On January 4, 2010, Respondent filed a Motion to Stay Pending Court Proceeding ("Motion to Stay"), seeking to have the disciplinary proceedings stayed until his divorce case, which had been pending for seven years, was resolved. The Motion to Stay alleged the matters at issue in the disciplinary proceedings were brought to the attention of the ARDC because of the divorce proceeding. The Chair denied the Motion to Stay.
On January 11, 2010, the Chair granted the Administrator's Motion to Deem the Allegations of the Complaint Admitted. Under the terms of the Order, this provision would be vacated automatically if Respondent filed an Answer on or before February 1, 2010, and Respondent filed an Answer on January 27, 2010. Respondent's Affirmative Defenses were stricken on a subsequent motion by the Administrator, but without prejudice to Respondent presenting mitigating evidence at the hearing.
In the meantime, discovery issues were addressed. Although Respondent did not raise timely objections to the Administrator's Notice to Produce, the Administrator's Notices to Produce were stricken with leave to re-issue. The Administrator filed an amended Notice to Produce on March 3, 2010. Rather than comply with this Notice, Respondent filed objections to it. The Chair directed Respondent to comply with the Administrator's Notice to Produce after a prehearing conference on April 13, 2010. During the conference, the Administrator's production request was addressed item by item and in painstaking fashion, with a detailed discussion of what was to be produced.
At the next prehearing conference, a discovery cut-off date was set and the hearing was scheduled, for August 26 and 27, 2010. Although Respondent did not participate in this conference, a copy of the Order was mailed to him.
On July 29, 2010, the Administrator filed a Motion to Strike Answer, Deem the Allegations Admitted and to Bar Respondent from Testifying and Introducing at Hearing Any Documents and Witnesses ("Motion to Strike and Bar"). The Motion to Strike and Bar alleged, inter alia:
At his deposition, Respondent declined to answer most of the questions posed by counsel for the Administrator, relying on his rights "as a U.S. citizen."
Respondent had not replied to the Administrator's request he identify the rights on which he was relying.
Respondent had informed counsel for the Administrator he had approximately 10,000 pages to produce in response to the Administrator's Notice to Produce, but could not afford to have the documents copied. Counsel for the Administrator and Respondent agreed Respondent would take the documents to a copy service, to be copied at the Administrator's expense. Although counsel for the Administrator requested this be done by May 20, 2010, Respondent had not contacted counsel further regarding the production request.
Respondent had not filed a Commission Rule 253 Report, although the Chair had given him a deadline of January 4, 2010 within which to do so.
The Chair initially granted the Motion to Strike and Bar, as Respondent had not responded to it. However, on the date the hearing was scheduled to begin, August 26, 2010, Respondent filed an Objection to the Order of August 10, 2010. The full Hearing Panel was present, prepared to hear the case. While denying Respondent's Objection, the Panel vacated the prior order, permitted the Administrator to refile the Motion to Strike and Bar, extended the discovery cut-off dates, and set October 15, 2010 as the deadline to file any motions or objections relating to discovery.
Within the extended discovery deadlines, the Administrator filed his First Request For Admission of Facts and Genuineness of Documents. In his Response, while admitting several facts, Respondent denied most of the alleged facts and declined to answer certain factual allegations based on his "rights as a U.S. citizen." Respondent later filed Added Objections/Responses to Revised Notice to Produce ("Added Objections I").
On October 15, 2010, the Administrator filed a Motion to Bar Respondent from Presenting Any Witnesses at Hearing ("Motion to Bar"), as Respondent had not filed a Commission Rule 253 Report or disclosed any potential witnesses. By then, the extended discovery cut-off date had passed. The Administrator also filed a Motion to Strike Respondent's Answer and Responses to the First Request for Admission of Facts and Genuineness of Documents and Deem Admitted ("Motion to Strike"). According to the Motion to Strike, in response to the Administrator's notice directing Respondent to appear for a continued discovery deposition, Respondent told counsel for the Administrator he would not appear as he would answer her questions in the same manner he had answered during his original deposition.
At a prehearing conference on November 1, 2010, the hearing was scheduled for January 19 and 20, 2011. While Respondent did not participate in the conference, a copy of the order was mailed to him.
On November 17, 2010, an Order was entered concerning the pending motions. Although neither party had filed any motions raising objections to discovery requests, Respondent's Added Objections I and his response to the Administrator's Request for Admissions did not comply with Supreme Court Rules 214 or 216. The Order specified ways in which Respondent's pleadings did not comply, including a pattern of simply referencing other
documents and not responding to some requests other than to broadly decline to answer "based on the rights afforded him as a U.S. Citizen."
Therefore, the Chair's Order of November 17, 2010:
struck Respondent's Response to Administrator's First Request for Admissions;
gave Respondent until December 16, 2010 to file a response conforming with Supreme Court Rule 216. The Order expressly directed the response be made under oath and accompanied by an affidavit. The Order also expressly directed Respondent to "include complete and explicit responses to each requested admission" and "not respond to any request by reference to any other document filed in this matter;"
struck Added Objections I;
gave Respondent until December 16, 2010 to file a response to the Administrator's Notice to Produce conforming with Supreme Court Rule 214 and including an affidavit stating whether the production was complete. The Order further directed Respondent to "include complete and explicit responses to each requested document" and "not respond to any request by reference to any other document filed in this matter;"
directed the Administrator to make any objection he might have to Respondent's responses by filing appropriate motions; and
entered and continued the Administrator's Motion to Strike and Motion to Bar.
On December 15, 2010, Respondent filed Added Objections/Responses to Revised Notice to Produce Pursuant to 11-17-10 Order ("Added Objections II"). In this pleading, Respondent reiterated his position that the issues in the disciplinary proceeding were being considered in Respondent's divorce and the ARDC was precluded from addressing these matters. Respondent also, inter alia, referred generally to documents previously produced.
Respondent also filed an Amended Response to Administrator's First Request for Admissions Pursuant to 11-17-10 Order ("Amended Response"). The Amended Response is
similar to Respondent's prior response and, inter alia, objects to some of the requests based on Respondent's "rights as a U.S. citizen."
On December 17, 2010, the Administrator filed a response, seeking sanctions because Added Objections II did not comply with the November 17, 2010 Order or respond to the Administrator's discovery requests. On December 30, 2010, the Hearing Board entered an Order barring Respondent from introducing any documents into evidence or using any documents for evidentiary purposes.
On January 5, 2011, the Hearing Board granted the Motion to Strike. Based on this Order, Respondent's Answer was stricken and the allegations of the Complaint were deemed admitted, with no further proof of those allegations required.
Most of the critical facts were in the admitted allegations of the Complaint and are discussed below, under Findings of Fact and Conclusions of Law.
The only evidence the Administrator presented was a memorandum dated August 31, 2009, prepared by David Froylan, then an investigator for the ARDC, addressed to the attorney then representing the Administrator. (Adm. Ex. 1).
The memorandum contained the following information: Froylan had been assigned to serve a Complaint Packet on Respondent. Froylan knew the case involving the dissolution of Respondent's marriage to Jodi Rosenbaum ("Rosenbaum") was scheduled on the progress call for August 27, 2009 at 11:30 a.m. On that date and time, Froylan went to the courtroom in which the case was scheduled and observed Rosenbaum's attorney and another person standing before the judge. Circumstances confirmed the person was Respondent; the Judge referred to
him as "Mr. Golden" and to the case as "the Golden" matter, and counsel for Rosenbaum addressed him using Respondent's first name. (Adm. Ex. 1).
When Respondent left the courtroom, Froylan called him by name. Respondent answered. After Froylan identified himself and told Respondent he had a Complaint to serve, Respondent denied his identity and ran into the courtroom. Froylan followed and continued the conversation. Respondent continued to deny his identity. Respondent refused to leave the courtroom, even though a deputy sheriff and Froylan asked him to do so. As Respondent persisted in refusing to leave, the deputy sheriff threatened to arrest Respondent. Froylan explained his purposes to the deputy sheriff, who told Froylan the location of the detention center to which she would take Respondent after she arrested him. Froylan went to the detention center. When the deputy arrived, she told Froylan Respondent had escaped. (Adm. Ex. 1).
After the Administrator rested Respondent testified. (Tr. 114). His conduct and testimony make clear his lack of understanding or lack of acceptance of the prior rulings deeming the allegations of the Complaint admitted and restricting Respondent's presentation at hearing. (Tr. 156-68).
Respondent testified to the following facts:
At the time of the conduct alleged in Counts I through III, Respondent was married to Rosenbaum. (Tr. 158). They filed joint tax returns, which Rosenbaum signed. (Tr. 158).
Respondent and Rosenbaum had a daughter who was a student at the Francis W. Parker School ("Parker") in Chicago from 1997, when she was in junior kindergarten, into her fourth grade year. (Tr. 136). The child did not attend Parker for the 2003-04 school year. (Tr. 138-39).
When Respondent did not accept the Administrator's certified mailings to him, Respondent did not know they were from the Administrator. During that time, Respondent was
not answering the door because Rosenbaum's attorneys were attempting to serve him with notices in multiple legal matters. (Tr. 144-47). The mail carrier never rang Respondent's doorbell, but instead left a slip of paper to indicate there had been an attempt to deliver a certified letter. Respondent, not knowing this was from the Administrator, did not pick up the mailing and did not know the Administrator was trying to send him something. (Tr. 147-48).
Respondent testified he appeared for his deposition, which he apparently equated with a sworn statement. He did not answer some of the questions, based on his constitutional rights. (Tr. 148-50).
Evidence in Aggravation and Mitigation
Respondent testified to the following facts, purportedly in mitigation.
Respondent graduated from Harvard Law School in 1969. During the year between his graduation and his first job as an attorney, Respondent testified he worked on developing a reading machine for blind people.
Respondent worked at the McDermott, Will and Emery law firm ("McDermott") from 1970 through 1991. Respondent testified he had been a partner at McDermott, a senior partner for many years. In 1991, Respondent's employment at McDermott was terminated. Respondent testified he was terminated due to a problem with a single client who, unbeknownst to Respondent, was running a Ponzi scheme. Respondent testified he filed and prevailed in a law suit alleging slander as a result of this incident. (Tr. 130-33).
Respondent testified, at the time of the hearing, he had not practiced law in four or five years. He had no clients. He had not paid his registration fee and was on inactive or retired status. (Tr. 202-03).
Respondent has been involved in various volunteer activities. Over time, he has assisted in fundraising efforts for the American Cancer Society, the American Heart Association, and the Jewish United Fund (Tr. 168-72). Respondent had coached a Little League team. (Tr. 126). He volunteered at events benefiting charities, providing services such as cleaning up, performing music with his band, and organizing casino nights. (Tr. 173-80). Respondent also donated his time to a number of groups which assisted entrepreneurs, particularly those starting new businesses. (Tr. 180-85).
Respondent was experiencing health problems. He testified he had an abnormality in the brain. While stating this abnormality had been revealed by an MRI and he was receiving therapy for it, Respondent did not provide further specifics about this condition. (Tr. 186-87).
Respondent testified he was under a doctor's care, as a result of his divorce. The divorce had been going on for eight years. (Tr. 184, 198-99).
Respondent has no prior discipline.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator has the burden of proving the misconduct charged by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). While less stringent than the criminal standard of proof beyond a reasonable doubt, clear and convincing evidence requires more than the usual civil standard of a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); People v. Williams, 143 Ill. 2d 477, 484, 577 N.E.2d 762 (1990). There must be a high level of certainty to meet this burden. In re Stephenson, 67 Ill. 2d 544, 556, 367 N.E.2d 1273 (1977). Clear and convincing evidence means a degree of proof which, considering all the evidence, produces a firm and abiding belief
it is highly probable the proposition at issue is true. Cleary & Graham, Handbook of Illinois Evidence, sec.301.6 (9th ed. 2009).
The Administrator met his burden and established Respondent engaged in all the misconduct charged in the Complaint.
Counts I through III:
The allegations of the Complaint were deemed admitted. Those allegations demonstrated, without contradiction, the following facts.
Applications were filed for financial aid for Respondent's daughter for the 1999-2000 school year (Count I), the 2002-03 school year (Count II), and the 2003-04 school year (Count III). Parker required parents applying for financial aid to submit an application, entitled Parents' Financial Statement, containing information about the parents' income for the preceding year. Parents were also required to submit to Parker a copy of the federal income tax return they had filed for the preceding year.
Respondent prepared and signed the Parents' Financial Statement for each of the three academic years involved. By signing the Parents' Financial Statement, Respondent declared the information in the document was true, correct, and complete.
In each Parents' Financial Statement, Respondent significantly underreported the income obtained during the preceding year. The admitted allegations of the Complaint established Respondent knew the information he placed on the Parents' Financial Statements was false and intended to mislead Parker. The admitted allegations of the Complaint also constituted proof the tax returns Respondent submitted to Parker were not accurate copies of his tax returns, but altered copies containing false information.
Based on the false information thus provided, Parker awarded financial aid to Respondent's daughter. Specifically, Parker gave Respondent's daughter $6,160 in financial aid for the 2001-02 school year, $7,884 in financial aid for the 2002-03 school year; and $8,786 for the 2003-04 school year. Respondent's family would not have been eligible for the financial aid awarded for these years if Respondent had not submitted false information.
The admitted factual allegations of Counts I through III confirm Respondent made false statements to obtain financial aid and Respondent's daughter received financial aid she would not have received if the family's income had been accurately presented. The admitted factual allegations of Counts I through III establish that, for each of the three school years at issue, Respondent knowingly submitted false information and false documents with the intent to mislead Parker. An attorney who knowingly makes false statements and submits false documents, doing so with the intent to mislead the recipient, violates Rule 8.4(a)(4). In re Winthrop, 219 Ill. 2d 526, 558, 848 N.E.2d 961 (2006). This is particularly true where, as here, the false statements are made to induce the recipient to take action which inures to the attorney's benefit. Such conduct brings the legal profession into disrepute and therefore also violates Supreme Court Rule 771. Id.2
Therefore we find, as charged in Counts I, II, and III of the Complaint, Respondent engaged in:
conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct of 1990, and
conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.
The admitted allegations of Count IV establish the following facts:
After receiving a report concerning Respondent's conduct, the Administrator began an investigation. On three separate occasions between March 20, 2009 and April 15, 2009, the Administrator attempted to serve Respondent with a subpoena duces tecum, by certified mail. The subpoena directed him to appear at the ARDC offices and provide information regarding the matters at issue in Counts I through III. Each of the certified mailings was returned unclaimed.
One of the Administrator's senior investigators telephoned Respondent on April 6, 2009, at home. Respondent answered. After the investigator told Respondent he was attempting to serve Respondent with a subpoena duces tecum, Respondent told the investigator he was not going to accept service or participate in the proceedings and the Commission should just proceed with what it had to do.
On July 1, 2009, Respondent was personally served with a subpoena duces tecum directing him to appear on July 7, 2009 at the ARDC's Chicago offices to testify and produce documents. Respondent did not appear for his sworn statement on that date or at any other time.
Attorneys have an obligation to cooperate with the ARDC. In re Zisook, 88 Ill. 2d 321, 331, 430 N.E.2d 1037 (1981). Attorneys are expected to understand the importance of that obligation and to act accordingly. In re McCarthy, 09 CH 7 (Review Bd. Feb. 28, 2011).
Under Rule 8.1(a)(2), with certain exceptions not applicable here, a lawyer shall not fail to respond to a lawful demand for information from a disciplinary authority in connection with a lawyer disciplinary matter. The facts set out above establish that Respondent violated this Rule.
Any one of the incidents alleged in Count IV would suffice on its own to establish the misconduct charged. Here, however, the multiple incidents provide further reason to find Respondent violated Rule 8.1(a)(2). Respondent did not respond to multiple certified mailings from the Administrator, refused to accept service of the subpoena duces tecum when contacted
by the Administrator's investigator, and did not appear in response to a subpoena. This pattern of conduct clearly establishes Respondent failed to respond to the Administrator's lawful demands for information.
Respondent's presentation at the hearing did not constitute a defense to the misconduct charged.
Respondent admitted he did not pick up the certified mailings sent to him, but stated he did not know they were from the Administrator. The Rule under which Respondent was charged, Rule 8.1(a)(2), does not include a requirement of knowledge or subjective intent. In re Facchini, 06 CH 3, M.R. 22616 (July 16, 2008) (Review Bd. at 5-6). Thus, under Rule 8.1(a)(2), Respondent's misconduct would not be excused even if he did not know the mailings were from the Administrator.3
However, misconduct was proven even if knowledge were required. The admitted allegations of the Complaint establish Respondent spoke with one of the Administrator's investigators on April 6, 2009. This conversation predated the certified mailing of April 15, 2009. Based on that conversation, Respondent knew the Administrator was attempting to serve him with a subpoena. According to the admitted allegations of the Complaint, Respondent refused to accept service. Therefore, we find Respondent knew the Administrator was attempting to serve him with a subpoena duces tecum, at least by April 6, 2009.
Respondent also asserted he appeared at a deposition. However, Respondent was personally served with a subpoena duces tecum directing him to appear and produce documents on July 7, 2009. He did not appear at that time or any subsequent time to provide a sworn statement to the Administrator. This failure is not excused by Respondent's later appearance at a
deposition. The deposition was a separate matter, at which Respondent was separately obliged to appear.
By failing to properly respond to the Administrator's requests for information, Respondent created a need for further follow-up and caused delays in the proceedings. Consequently, we find Respondent's conduct also tended to defeat the administration of justice. Facchini, 06 CH 3 (Review Bd. at 7).
These facts demonstrate, and we find, as charged in Count IV, Respondent:
failed to respond to a lawful demand for information from a disciplinary authority in violation of Commission Rule 53 and Rule 8.1(a)(2); and
engaged in conduct that tends to defeat the administration of justice and bring the courts or legal profession into disrepute in violation of Supreme Curt Rule 770.
In determining the discipline to recommend, we are guided by certain principles. First and foremost, the sanction must serve the purposes of the disciplinary system, which are to safeguard the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994). Predictability and fairness require some consistency in the sanctions imposed for similar misconduct, but each case must be resolved based on its own unique facts and circumstances. Chandler, 161 Ill. 2d at 472. Thus, in recommending a sanction, the nature of the respondent's misconduct is an important consideration. In re Bell, 147 Ill. 2d 15, 37, 588 N.E.2d 1093 (1992). In determining the proper sanction in a given case, consideration may be given to whether the sanction will help preserve public confidence in the legal profession. In re Gorecki, 208 Ill. 2d 350, 361, 802 N.E.2d 1194 (2003).
Respondent engaged in serious misconduct. He submitted financial aid applications to his daughter's school which included false representations and fraudulently altered documents. Respondent repeated this misconduct over time, submitting three such fraudulent applications for three separate academic years.
False representations by attorneys have met with varying degrees of discipline. Chandler, 161 Ill. 2d at 473. Acts of intentional dishonesty can warrant disbarment. Id., at 479. Respondents who have submitted false documents in an effort to gain loans or other financial consideration have received lengthy suspensions. Id., at 478 (suspension for three years and until further order of the Court); In re Skolnick, 00 CH 92, M.R. 17529 (June 29, 2001) (suspension for three years). Respondent's repetition of this misconduct, three times, makes this case significantly more serious than if there had only been one incident. Bell, 147 Ill. 2d at 38. Respondent's misconduct is also more serious because he continued the misconduct over time, repeating it as to three separate academic years. The underlying misconduct is indeed serious.
In addition, Respondent failed to respond to lawful demands by the Administrator for information in connection with this disciplinary proceeding. Attorneys have a fundamental duty to cooperate with the Administrator in his investigation of possible acts of attorney misconduct. In re Johnson, 133 Ill. 2d 516, 535, 552 N.E.2d 703 (1989). An attorney who disregards this obligation and fails to respond to the Administrator's requests for information engages in serious misconduct, as such behavior demonstrates a significant lack of professional responsibility. In re Brody, 65 Ill. 2d 152, 156, 357 N.E.2d 498 (1976).
Respondent repeatedly disregarded the Administrator's requests for information. He failed to claim three certified mailings from the Administrator, including one sent after Respondent had spoken with an investigator for the Administrator and knew the Administrator
was attempting to serve him with a subpoena duces tecum. In addition, Respondent did not appear for a sworn statement even though he was personally served with a subpoena directing him to appear.
Aggravating and mitigating factors are also relevant in determining the sanction to recommend. In re Ring, 141 Ill. 2d 128, 145, 565 N.E.2d 983 (1990).
Respondent has no prior discipline. He has participated in various charitable causes over time. These factors constitute some mitigation, Gorecki, 208 Ill. 2d at 368-69, but have very little impact in this case, for the reasons stated below.
The Administrator seeks disbarment. While respondents who have engaged in similar misconduct have received lengthy suspensions rather than disbarment, e.g., Skolnick, 00 CH 92; see Chandler, 161 Ill. 2d at 478, the aggravating factors in this case warrant disbarment.
There are a number of aggravating factors. As is evident from his statements and conduct in these proceedings, Respondent does not understand the nature and seriousness of his misconduct. This is a serious aggravating factor. In re Lewis, 138 Ill. 2d 310, 347-48, 562 N.E.2d 198 (1990).
For example, in his Motion to Dismiss and his Affirmative Defenses, Respondent sought to avoid responsibility because he was no longer practicing law and the alleged misconduct did not relate to his practice of law. These factors do not provide legitimate grounds for avoiding discipline. See In re Imming, 131 Ill. 2d 239, 255, 545 N.E.2d 715 (1989). In numerous pleadings, Respondent complained because Rosenbaum was not joined as a party in these proceedings. However, the law does not require the Administrator to treat Rosenbaum in the same manner as Respondent. See In re Damisch, 38 Ill. 2d 195, 205, 230 N.E.2d 254 (1967). An attorney is not insulated from discipline even if another person also may have engaged in
misconduct. Lewis, 138 Ill. 2d at 346. Respondent repeatedly complained of "unclean hands" by the attorneys who represented Rosenbaum in the divorce or reported his conduct to the ARDC. Respondent made unfounded claims accusing counsel for the Administrator of engaging in a conspiracy against him with Rosenbaum and her attorneys. Respondent reiterated his conspiracy theory in a pleading filed the day before the hearing was scheduled to begin, which sought to place a gag order on counsel for the Administrator and bar her from further involvement in the case. Attempts to deflect blame from oneself and shift it to others are aggravating factors, as such attempts do not inspire confidence the attorney will conform his or her future conduct to the standards required by the profession. In re Samuels, 126 Ill. 2d 509, 531, 535 N.E.2d 808 (1989).
However, the most serious aggravating factor is Respondent's conduct in the disciplinary proceedings. For that reason, this report sets out Respondent's conduct in the disciplinary proceedings in detail. An attorney's conduct in the disciplinary proceedings is a proper consideration in determining the sanction. Samuels, 126 Ill. 2d at 531. The purpose of discipline is not punishment, but to protect the public. Gorecki, 208 Ill. 2d at 361. An attorney's failure or inability to properly respond in his or her own disciplinary case raises serious doubt about the attorney's ability to properly handle client matters. In re Houdek, 113 Ill. 2d 323, 326-27, 497 N.E.2d 1169 (1986); see also In re Levinson, 71 Ill. 2d 486, 492-93, 376 N.E.2d 998 (1978).
From the earliest stages of this case, Respondent behaved in a manner which is totally unacceptable for a practicing attorney. Respondent attempted to evade service of the Complaint. Even considered solely on the surface, this is extremely inappropriate behavior and a serious aggravating factor; Respondent's actual conduct, of running away from Froylan and attempting to hide in the courthouse to evade service, is even more egregious. See In re Person, 98 CH 72,
M.R. 15971 (May 4, 1999). Respondent's behavior in relation to the certified mail notices for the Administrator's subpoenas duces tecum highlights his disregard for orderly legal processes. Respondent admittedly received those notices and knew certified mailings had been sent to him, yet made a deliberate and conscious choice not to pick up those mailings. Respondent's own explanation for this conduct, an effort to avoid receipt of notices from Rosenbaum's attorneys, evidences serious irresponsibility.
Seventeen months passed between the filing of the Complaint and the hearing. This lengthy interval was largely the result of Respondent's behavior and the Chair's efforts to give Respondent every reasonable opportunity to present a defense on the merits. Despite this consideration, Respondent did not avail himself of the opportunity. Instead, Respondent's behavior throughout the disciplinary proceedings evidenced an inability or unwillingness to conform to applicable rules of practice and procedure and present his position in light of those rules. As a result of Respondent's conduct in these proceedings, he was barred from introducing evidence at the hearing and, ultimately, his Answer was stricken and the allegations of the Complaint were deemed admitted. These sanctions were warranted by Respondent's behavior. See In re Nash, 07 CH 68, M.R. 23293 (May 28, 2009); In re Horne, 97 CH 98, M.R. 16743 (Feb. 16, 2000).
In his pleadings, Respondent made multiple frivolous arguments. He continued to raise those arguments repeatedly, even after they had been rejected.
Respondent did not participate in prehearing conferences on January 15, 2010, March 18, 2010, May 24, 2010, and November 1, 2010. Respondent did not participate in these four prehearing conferences even though he had notice of those conferences and even though the Clerk of the Commission attempted to reach Respondent by phone at the time of each
conference.4 One of the conferences had been rescheduled at Respondent's request. Respondent did not participate in another conference even though he agreed, when the prehearing conference was scheduled, to be available for it.
Respondent engaged in a pattern of delay and non-compliance with routine discovery. For example, Respondent's Rule 253 Report was due in September 2009. He did not file it on time, and the Chair extended the time for Respondent to file his Report until January 4, 2010. However, Respondent did not file any Rule 253 Report until one year later, in January 2011, shortly before the hearing was due to begin.
Respondent neither properly complied with discovery requests nor properly objected to them. Respondent's non-compliance continued even after the deficiencies in his responses were identified explicitly and Respondent was given repeated opportunities to rectify those deficiencies. For example, the Chair specifically ordered Respondent not respond to any request by reference to any other document. However, as late as January 4, 2011, two weeks before the hearing was to begin, Respondent filed a pleading in which, inter alia, he sought to justify, as sufficiently clear, his statements referencing other documents in general terms.
At his deposition, Respondent refused to answer questions, even innocuous inquiries such as where he obtained his graduate and law degrees. Respondent based his refusals to answer generically on his rights as a United States citizen. An attorney cannot legitimately decline to answer questions based on mere reluctance or unwillingness to do so. In re Zisook, 88 Ill. 2d 321, 331, 430 N.E.2d 1037 (1981).
Respondent's conduct at the hearing similarly demonstrated a lack of awareness of what is required of a practicing attorney.
Respondent claimed he did not have any notice of the Administrator's witnesses However, Respondent was on notice of the Administrator's potential witnesses; the Administrator had filed a Commission Rule 253 Report on September 25, 2009 and a Supplemental Report on August 27, 2010.
Respondent spent substantial time at the start of the hearing discussing what documents he had, and had not, received. Those matters could, and should, have been resolved long before the hearing. Further, Respondent's own conduct likely contributed to any failure to receive documents in a timely way. Respondent advised the Hearing Panel his mail was being temporarily forwarded to a different address. Respondent, however, had not notified the Administrator of this change.
Respondent's license to practice law was at stake in these proceedings. Despite this reality, Respondent said he did not want to remain after 5:00 p.m. in order to conclude the hearing in one day, and declined to remain after 5:00 p.m. Respondent was permitted to make his closing argument before the Administrator's argument, an obvious departure from the norm. After finishing his own argument, and even though the hearing was not concluded, Respondent chose to leave the hearing. Particularly considered in light of the background of the case as a whole, this conduct demonstrates a serious indifference to and disregard for the disciplinary process.
Thus, throughout the disciplinary proceedings, both in the prehearing proceedings and at the hearing, Respondent's behavior displayed a complete inability to appropriately practice law. Respondent did not introduce any evidence to explain his behavior. He made a general reference to a problem with his brain, but made no effort to explain that problem or how, if at all, it might be impacting his behavior. Therefore, there is no basis on which we could conclude Respondent
was adversely affected by any health problems. The responsibility for bringing such matters to the attention of the hearing panel rests with the respondent. See Levinson, 71 Ill. 2d at 492. On this record, though, there is no real evidence of any psychological problems, and we must base our recommendation as to discipline on the evidence presented, not on speculation. Id.
Another factor significant to our recommendation of disbarment is not readily apparent in the transcript of proceedings but remains vividly in the memories of the hearing panel members. During the hearing, as well as in some prehearing proceedings, Respondent's attitude, tone of voice and overall demeanor were extremely inconsistent with the behavior to be expected of a practicing attorney. Respondent conveyed an impression of being obsessed with blaming everyone else. He demonstrated a palpable level of anger and indignation, which was readily apparent at the hearing, even though it is likely not evident from the transcript. Respondent unleashed his anger at the hearing, especially at counsel for the Administrator and, to a lesser extent, the members of the hearing panel. Respondent's behavior and demeanor in person at the hearing convinces us he is unable to represent another person and should not be permitted to practice law. Based on our observations of Respondent, we are convinced our duty to protect the public requires us to recommend disbarment.
Respondent's behavior in these proceedings is especially mystifying in light of his background. Respondent is a Harvard graduate. For years, he was a partner at a major law firm. Respondent is someone who knows, or should know, how to practice law. Yet, he:
hid in the courthouse to evade service of process,
did not pick up his mail, fearing it might involve a claim against him,
filed frivolous pleadings rehashing the same issues,
purported to have no idea why he might be culpable for preparing, signing and submitting applications for financial aid which contained false statements and were based on fraudulently altered documents,
continually blamed others for everything wrong in his life,
did not properly respond to basic discovery,
repeatedly engaged in invective behavior in the course of a legal proceeding.
This is not how an attorney should behave. A person who demonstrates a pattern of such behavior, as Respondent did in this case, should not be permitted to hold himself out to the public as one who is able to practice law.
A respondent's display of contempt for the disciplinary proceedings, or conduct that serves merely purposes of obstruction and delay, warrants a harsh sanction to protect the public. In re Levin, 118 Ill. 2d 77, 89, 514 N.E.2d 174 (1987); In re Kozel, 96 CH 50, M.R. 16530 (Nov. 5, 1997). The evidence in mitigation presented by Respondent is not sufficient to avoid a recommendation of disbarment in this case, given the significant aggravating factors. Part of the purposes of the disciplinary system is to protect the public from persons who, unfortunately like Respondent, cannot practice law.
Given all of these circumstances, we recommend Respondent be disbarred.
Date Entered: August 23, 2011
|Roxanna M. Hipple, Cheryl M. Kneubuehl, Hearing Panel Members.|
1 Except as indicated otherwise, Respondent participated in the prehearing conferences.
2 During the hearing, Respondent was permitted to make an extensive offer of proof. Respondent's offer of proof included statements to the effect the Francis W. Parker School community had ostracized Rosenbaum, who became irate at the school and told Respondent "(y)ou get them," referring to the school. After the events alleged in the Complaint, Respondent told Rosenbaum "(i)t's over." (Tr. 226). Respondent stated thereafter he transferred his daughter to a different school, at which he never applied for any financial aid. Nothing in the offer of proof would cause us to reach a different conclusion in this case.
3 The comparable provision under the Illinois Rules of Professional Conduct of 2010, Rule 8.1(b), does include a requirement of knowledge. However, Rule 8.1(a)(2) was in effect at the time of Respondent's misconduct and is the Rule under which Respondent was charged.
4 Respondent did not assert mail from the ARDC was sent to him at an address other than the address listed on the Master Roll. The address to which mail was directed to Respondent in this case is an address Respondent admitted was his residence address. Specifically, in his Amended Response to Administrator's First Request for Admissions Pursuant to 11-17-10 Order, Respondent admitted he had lived at 4137 North Hermitage, Chicago, Illinois 60613 between January 20, 2006 and May 15, 2009. In accordance with Supreme Court Rule 756(c), if Respondent had changed his address, he would have been obligated to notify the Administrator of the change within 30 days of the change.
Michael C. Greenfield, Chair, concurring in part and dissenting in part.
I dissent from the majority's recommendation of discipline. The goals of the disciplinary system are not punishment, but to protect the public, maintain the integrity of the legal profession and preserve the administration of justice from reproach. In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000). The decision as to the proper sanction to recommend must be made in light of the purposes of the disciplinary system. In re Imming, 131 Ill. 2d 239, 260, 545 N.E.2d 715 (1989).
The Supreme Court has described disbarment as "the utter destruction of an attorney's professional life, his character and his livelihood," In re Timpone, 208 Ill. 2d 371, 384, 804 N.E.2d 560 (2004), quoting In re Yamaguchi, 118 Ill. 2d 417, 428, 515 N.E.2d 1235 (1987), to a much greater extent, I think, than a suspension. Such an extreme sanction should be used with appropriate moderation. Id. Because predictability and fairness require similar sanctions for similar misconduct, In re Joyce, 133 Ill. 2d 16, 31, 549 N.E.2d 232 (1989), the nature of the attorney's misconduct is an important consideration in determining the sanction. See In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003).
False statements, while highly improper and not to be countenanced, do not routinely warrant disbarment. E.g., In re Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961 (2006); In re Chandler, 161 Ill. 2d 459, 641 N.E.2d 473 (1994); In re Betts, 109 Ill. 2d 154, 485 N.E.2d 1081 (1985). This is true even when seriously aggravating circumstances, such as prior discipline for similar misconduct, are present. E.g., In re Barry, 09 SH 05, M.R. 24439 (Mar. 21, 2011).
An attorney's conduct during disciplinary proceedings is relevant in determining the discipline to be recommended. In re Samuels, 126 Ill. 2d 509, 531, 535 N.E.2d 808 (1989). Respondent's uncooperative behavior during these proceedings is an aggravating factor and
should be considered in assessing the quantum of discipline to be imposed because the manner in which Respondent represented himself casts doubt on his ability to properly function as an attorney in the future. Such concerns can justify continuing a suspension until further order of the Court to insure the protection of the public. E.g., In re Houdek, 113 Ill. 2d 323, 327, 497 N.E.2d 1169 (1986); In re Levinson, 71 Ill. 2d 496, 492-93, 376 N.E.2d 998 (1978).
I fully agree Respondent engaged in serious misconduct when he submitted false information and fraudulent tax returns in support of applications for financial assistance from the Francis W. Parker School. I also agree he was needlessly uncooperative during the prosecution of his ARDC matter. However, I do not believe the applicable Supreme Court decisions that should guide us in determining our recommendation of discipline warrant disbarment for the misconduct arising out of his false applications for financial aid, the proven misconduct with which Respondent was charged in the Complaint. I also do not believe his conduct during the pendency of this matter aggravates the proven misconduct to the extent that disbarment is warranted.
The record as a whole also suggests the possible existence of mitigating factors not specifically raised by Respondent. During the hearing Respondent referred to his mental health issues, the presence of a brain abnormality apparent on an MRI, and cardiac problems. (Tr. 72, 135, 186). At prehearing conferences, he stated he was receiving counseling and was under medical care for cardiac problems and the stress resulting from the matters that brought him to the attention of the ARDC. (ROP 4/13/10 at 4, 7). Respondent expressed significant anxiety over his family circumstances, including his long-pending and contentious divorce matter, his daughter's psychological well-being, and efforts by his wife to separate him from his daughter. (Tr. 185, 189; ROP 4/13/10 at 30-31; ROP 2/25/10 at 11; see ROP 3/18/10 at 3).
In defending himself, Respondent did not present evidence concerning these factors, nor how, if at all, they contributed to his conduct during these proceedings. His ability to present such evidence, if it existed, was restricted by order of the Chair as a consequence of his procedural and substantive failures to properly respond during the prehearing stages. While these factors would not excuse Respondent's aberrant behavior, the record suggests to me they may well have contributed to the antagonistic, sometimes rude, nature of his self-representation that understandably offended the majority.
The Levinson case involved considerations not dissimilar to those I believe are present in this situation. Levinson, 71 Ill. 2d at 486. In Levinson, the Supreme Court had before it a Review Board recommendation, affirming a Hearing Board recommendation, of disbarment. The Levinson Court said "Perhaps even more astonishing, under normal circumstances, would be the lack of concern manifested by respondent with regard to these proceedings …. Only after our May 25 order approving the report of the Review Board and disbarring respondent did he appear in this court." Levinson subsequently filed exceptions, but failed to file a brief until the Court entered an order stating the disbarment order would issue if a brief was not filed within the specified time. The Court then discussed inferences in the record that Levinson's actions, for which the Hearing and Review Boards recommended disbarment, and his failure to file timely exceptions and a brief before the Court, were due to his son's medical condition (from which the son subsequently passed away). The Court wrote: "…. it might well be at least a partial explanation for what would otherwise appear to be an unusual lack of concern regarding the disciplinary proceedings. To assume this to have been true, however, would be little better than sheer speculation on the record before us ….. While the possibility cannot be denied that respondent may have undergone severe or disabling emotional disturbance following the death of
his son, the responsibility rests with respondent to establish that fact or any others mitigating what appear to us as serious misconduct with [his clients] and an unusual absence of concern for the later proceedings before this court …." Id., at 492-93. The Court then declined to accept the recommendations of disbarment and suspended Levinson from practicing law for six months and until further order of the Court.
As Chair, I repeatedly experienced exasperation over Respondent's conduct during the long pre-hearing period, but it is difficult for me to ignore the facts of Respondent's background and his more recent post-Complaint behavior in attempting to make sense of his actions. The decline Respondent experienced between his earlier legal career, including a Harvard Law School degree and partnership in a major law firm, and his present situation, strengthens my sense that personal problems may well have contributed to the causation of his untoward behavior. I think it not improbable the cause of what I consider Respondent's aberrant behavior also contributed to his inability to present evidence explaining such behavior, referred to above, and/or that it prevented him from accepting the existence of a problem. We have no basis for determining the effect of possible mental health problems on Respondent's behavior because no mitigating evidence was presented on the issue; in the same manner the record in Levinson was silent on behavioral issues, but as in Levinson, mental health problems may have contributed to the failure to present mitigating evidence by Respondent in acting as his own counsel. I cannot and do not definitively conclude mental health issues were responsible for Respondent's behavior. I only conclude under the facts and circumstances of this case there is a very real possibility Respondent's problems impaired his ability to present evidence of their impact on his behavior, and if Respondent had been represented by capable counsel such evidence could have provided substantial mitigation.
Respondent stated on several occasions (e.g., Tr. 59, 202-03, 234; ROP Nov. 17, 2009 at 14) he does not now practice law and has been on retired status since January 1, 2007.5 It is irrelevant Respondent stated he does not intend to ever again attempt to assume active status; he could make such an attempt at any time unless otherwise restricted from doing so. If he never applies to have his status to practice law reactivated, the issue of the length of suspension is moot. If Respondent is suspended and such suspension is made subject to further order of the Supreme Court, and if he were to seek to again attain active status, the public would be protected by the judicial oversight resulting from the reinstatement process. Such a disposition would permit a judicious consideration of a petition for reinstatement should that ever be sought. See Levinson, 71 Ill. 2d at 492-93. He would not be able to attain active status until his application had been examined by an ARDC Hearing Panel, and, possibly, the Review Board, and approved by the Supreme Court.
That is, I think, a substantial part of the teaching of Levinson, i.e., under appropriate circumstances, which I believe exist here, a suspension until further order of the Court, and not disbarment, would adequately protect the public because of the judicial oversight that exists upon application for reinstatement. For these reasons I am persuaded a suspension until further order of the Supreme Court is warranted in this case, and disbarment is not necessary for the protection of the public.
Respondent transgressed and those transgressions require the imposition of discipline for the public's protection, but I do not believe the evidence demonstrated he is beyond redemption.
Therefore, in my opinion, given the nature of his misconduct and lack of cooperation, Respondent should be suspended for three years and until further order of the Supreme Court, and I so recommend.
|Michael C. Greenfield, Chair.|
1 As of this writing, the ARDC website, an official public record, shows his status to be: "Voluntarily retired and not authorized to practice law." It is not necessary this ARDC website entry be considered evidence in support of the quoted statement, because Respondent's statements cited in the footnoted paragraph, that he has been on retired status since January 1, 2007, is consistent therewith and uncontradicted in the record, and there was no evidence adduced that his status changed since then. If it is appropriate for me to suggest judicial notice of the website entry be taken, I allude to it as confirmatory of Respondent's ARDC status as of the time this Report was drafted.