Filed October 20, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
MAUREEN F.X. WALSH,
|Supreme Court No. M.R. 23105
Commission No. 09 RT 3003
REPORT AND RECOMMENDATION OF THE HEARING BOARD
Petitioner, Maureen F. X. Walsh ("Petitioner"), was disbarred on June 30, 2000, following her conviction on a 23-count federal indictment arising out of fraudulent billing of legal services and fees. In re Walsh, 94 CH 653, M.R. 16705 (June 30, 2000).
On April 23, 2009, Petitioner filed with the Supreme Court a Petition for Reinstatement pursuant to Supreme Court Rule 767. Petitioner had not previously sought reinstatement. On May 20, 2010, the Administrator filed Objections to the Petition for Reinstatement.
A hearing was held on October 18, 19, and 20, 2010, 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, Tiffany M. Ferguson, and David A. Dattilo. Melissa A. Smart and Scott A. Kozlov appeared on behalf of the Administrator. Petitioner was present at the hearing and was represented by Stephanie Stewart-Page, a member of the Illinois Bar, and Debora K. Kristensen, of the Idaho firm of Givens Pursley LLP. Ms. Kristensen appeared on behalf of Petitioner pursuant to an Order of the Supreme Court granting a Motion to Appear Pro Hac Vice.
PROCEEDINGS LEADING TO DISBARMENT
In 1991 through 1994, while an income partner at Chapman and Cutler, Petitioner prepared and submitted time records to the firm in which she falsely claimed to have performed legal services for periods of time during which she was not actually working, claimed time and expenses in connection with fictitious matters and sought reimbursement for personal expenses by falsely claiming those expenses were work-related. As a result of this conduct, criminal proceedings and disciplinary proceedings ensued.
On November 14, 1996, Petitioner was indicted in the United States District Court, Northern District of Illinois, on charges of mail fraud, bank fraud and wire fraud arising out of this conduct. (Adm. Ex. 1). The 23-count indictment charged Petitioner committed the following acts, as part of a scheme to defraud Chapman and Cutler:
between 1991 and 1994, over-billed Harris Bank and eight Harris Bank customers by billing for services which were never performed, by causing fees to be billed for services which were never authorized and expenses unrelated to Harris Bank matters to be billed to the bank and its customers;
between July 1992 and June 1993, over-billed The Cologne Life Reinsurance Company ("Cologne") by approximately $210,000 in fees for legal services and expenses which were not provided, directed a paralegal and two associates to assist Petitioner in falsely reconstructing billing records designed to mislead Cologne as to the legal services for which it was charged, and made false statements to the judge in civil litigation arising out of the billing dispute.
in 1990, fraudulently billed Chapman and Cutler and its clients for claimed legal services when she was actually vacationing, and caused the firm to reimburse her for personal expenses associated with those vacation trips.
fraudulently billed clients approximately $14,160 for claimed legal services when she was vacationing from March 18 through April 4, 1992.
fraudulently billed clients approximately $12,300 for claimed legal services when she was on a personal trip on or about April 20, 1992, and fraudulently
billed clients and the firm approximately $4,100 for expenses incurred on that trip.
fraudulently billed clients approximately $14,600 for claimed legal services when she was on a personal trip in August 1992, and fraudulently billed clients and the firm approximately $2,257 for expenses related to the trip.
fraudulently billed clients approximately $11,700 for claimed legal services when she was vacationing in November 1992, and fraudulently billed the firm for over $2,500 in expenses related to that trip.
fraudulently billed clients approximately $4,000 for claimed legal services when she was on a personal trip in October 1993 and fraudulently billed clients and the firm for approximately $3,300 in expenses relating to that trip.
fraudulently billed a client approximately $10,575 for claimed legal services when she on a ski trip in December 1993.
fraudulently billed clients approximately $14,400 for claimed legal services when she was hospitalized in June 1992.
fraudulently billed clients approximately $15,360 for claimed legal services when she was on vacation from December 28, 1992 until January 10, 1993.
fraudulently billed clients approximately $10,000 for claimed legal services when she was on vacation in March 1993 and for expenses related to that trip.
fraudulently requested reimbursement from the firm of approximately $500 for a personal party she falsely described as business development.
fraudulently billed clients $9,600 for claimed legal services when she was actually vacationing in September 1993 and fraudulently billed the firm for her airfare of $551 for that trip.
fraudulently billed clients $6,375 for claimed legal services when she was on a personal trip in December 1993 and fraudulently billed clients and the firm over $3,700 for expenses she incurred on that trip.
fraudulently billed clients $28,700 for claimed legal services when she was vacationing between December 20, 1993 and January 7, 1994, and fraudulently billed the firm $2,555 for personal expenses.
fraudulently billed Winston & Strawn approximately $207,700 for legal services that were never provided and directed Chapman and Cutler to apply some of the funds collected from Winston & Strawn to matters unrelated to Winston & Strawn, including fictitious files.
fraudulently billed Chapman and Cutler approximately $1,492 for expenses relating to personal trips to Omaha, Nebraska on June 28-30, 1993 and July 14-16, 1993.
fraudulently billed clients $19,200 for claimed legal services when she was vacationing in August 1993 and fraudulently billed the firm for $1,188 in personal expenses, purporting those expenses to be work-related.
fraudulently caused the firm to advance $2,350 to pay expenses for a friend in September 1993.
fraudulently billed a client $6,000 for claimed legal services when she was on a personal trip on October 20, 1993 and fraudulently billed the firm approximately $760 for her expenses relating to that trip.
fraudulently billed the firm approximately $1,200 in November 1993 for tickets to a Chicago Bulls game by falsely claiming the expense was work-related.
fraudulently caused Chapman and Cutler to pay a public relations firm $5,645 in January 1994 for services provided to her husband, by falsely representing the public relations firm's services were related to a Chapman and Cutler client.1
falsely represented she was involved in litigation in which she was not involved, opened a file at Chapman and Cutler concerning the litigation and, in December 1993, created an invoice which falsely claimed she had performed work on the matter for which her firm was due $4,080; she then caused $4,080 paid by another client to be credited to the false account.
caused false reconstructions of bills to be created and sent to a client in response to the client's request for support for Petitioner's December 1993 billing to the client.
fraudulently caused Chapman and Cutler to pay $2,500 to an attorney and to charge the fees to a client by falsely representing the fees were for services to the firm, when in fact the attorney represented Petitioner's nanny in an immigration matter.
(Adm. Ex. 22 at 5-10).
On April 1, 1997, Petitioner pled guilty to the indictment. She entered her guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). (Tr. 57-58, 360-63). The Alford decision permits a court to accept a guilty plea, provided it is knowingly and voluntarily made
and has a factual basis, even though the defendant does not admit actual guilt of the offense. (Tr. 584-85). Alford, 400 U.S. at 37.
Extensive evidence was presented at Petitioner's sentencing hearing. The evidence included testimony and a report from Dr. Herbert Meltzer ("Dr. Meltzer"), professor of psychiatry and pharmacology and Director of Psychopharmacology at Vanderbilt University. Dr. Meltzer had examined Petitioner and reviewed results of her neuropsychological testing. (Adm. Ex. 3 at 2-4, 7-8). Other doctors had also examined Petitioner. While those doctors did not testify at the sentencing hearing, results of their examinations were before the sentencing court. (Tr. 613).
At the sentencing hearing, Dr. Meltzer testified Petitioner had a number of medical conditions, predominantly bipolar disorder. Bipolar disorder is characterized by successive periods of mania or depression. (Adm. Ex. 3 at 4, 8-10). Some persons with these conditions suffer intermittent symptoms and can appear perfectly normal at times. (Adm. Ex. 3 at 25-27, 70-71). In Dr. Meltzer's opinion, Petitioner's condition likely resulted from her use of medically prescribed steroids. (Adm. Ex. 3 at 9-10, 13).
According to Dr. Meltzer, the interaction of Petitioner's conditions caused her to have diminished functional capacity, which would have been manifested in impaired judgment, inability to concentrate, impaired memory and limited ability to function. She also experienced grandiose thinking and delusional beliefs. (Adm. Ex. 3 at 9-10, 16-19). Dr. Meltzer testified to the effect he did not consider Petitioner's conduct to be the result of a deliberate scheme. (Adm. Ex. 3 at 38-39).
The sentencing judge, District Court Judge Charles R. Norgle, Sr. ("Judge Norgle"), found Petitioner acted with diminished mental capacity. This finding was based on all the
evidence presented at the sentencing hearing, including Dr. Meltzer's testimony, and reports not in evidence in these reinstatement proceedings. Based on Petitioner's guilty plea, Judge Norgle also concluded Petitioner had accepted responsibility. As a consequence of those conclusions, Judge Norgle made downward adjustments to the applicable sentencing range under the Federal Sentencing Guidelines. Conversely, and with the agreement of the parties, Judge Norgle found an upward adjustment was appropriate because Petitioner's conduct involved more than minimal planning. (Adm. Ex. 3 at 81, 84-85, 95-97, 113).
Judge Norgle concluded Petitioner's diminished mental capacity contributed to her commission of the crimes, but did not excuse or solely cause her conduct. Judge Norgle's statements indicate his understanding that this was consistent with the defense position. He observed Petitioner's condition did not render her innocent or not legally guilty, but was a factor which needed to be considered in sentencing. Judge Norgle emphasized he was not finding Petitioner's mental condition caused Petitioner's crimes or was a defense to them; instead, he simply found her diminished mental capacity contributed to the commission of the crimes. (Adm. Ex. 3 at 95-97).
On July 22, 1997, Petitioner was sentenced to incarceration for one year and one day, followed by three years mandatory supervised release. Petitioner was ordered to pay restitution of $50,000 for the expenses for which she was fraudulently reimbursed, plus a special assessment of $1,150. No fine was imposed as Judge Norgle found Petitioner lacked the ability to pay. The Federal Court determined the loss resulting from Petitioner's improper billing was $800,000. (Tr. 57-60).
Petitioner's surrender date was stayed, and she began serving her sentence in January 1998. Petitioner did not appeal. (Tr. 97-98, 100; Adm. Ex. 4). Petitioner was in custody for five
months and 21 days at a federal medical center, from which she was released in June 1998. Petitioner then went to a halfway house, from which she was released on October 21, 1998. (Tr. 100-103, 374-75).
By the time of the reinstatement hearing, Petitioner had served her sentence, successfully completed probation and paid the restitution ordered in the criminal case. (Tr. 126, 621).
After Petitioner was convicted and sentenced in the criminal case, the Supreme Court placed Petitioner on interim suspension, in November 1997. The disciplinary case proceeded based on the criminal conviction. S. Ct. R. 761(b). Petitioner was represented by counsel in the disciplinary proceedings. Although prehearing proceedings occurred while Petitioner was incarcerated, the hearing was held after her release. The Hearing Board conducted a full hearing, at which Petitioner was present and testified. The evidence before the Hearing Board included the presentence investigation report from Petitioner's criminal case, admitted under seal. (Tr. 104; Adm. Ex. 22 at 1-3).
Harry Lamberson ("Lamberson") testified at the disciplinary hearing. Lamberson was a managing partner at Chapman and Cutler from 1982 until he resigned from the firm in 1997. (Adm. Ex. 22 at 14-15).
During the period from 1991 to 1994, Lamberson had occasion to observe Petitioner's conduct and behavior. Petitioner had been in Lamberson's practice group since 1991. During that time, Lamberson had evaluated Petitioner's work; he always rated her performance well. Lamberson described clients as extremely satisfied with Petitioner's work. Lamberson's office was adjacent to Petitioner's, and they had discussed legal issues. (Pet. Ex. 20 at 5; Adm. Ex. 22 at 15-18).
Lamberson never observed Petitioner acting as if she were incapacitated or impaired. Lamberson did not have any indication Petitioner was under the influence of any drugs. In 1993, Lamberson noticed Petitioner was spending less time in the office. He testified, though, she responded promptly whenever Lamberson left her a message. (Adm. Ex. 22 at 16).
Lamberson testified there were times before 1994 when Petitioner would ask him if she was billing appropriately on specific time sheets. In those instances, Lamberson told Petitioner the sheets were fine. On cases in which Lamberson and Petitioner worked together, Petitioner prepared time sheets. Lamberson testified she did so accurately. (Adm. Ex. 22 at 15-16).
After Petitioner's billing improprieties were discovered, Chapman and Cutler made refunds to the clients involved. Lamberson testified Chapman and Cutler refunded over $270,000 to Winston and Strawn, following Winston and Strawn's review of relevant records. Lamberson testified Chapman and Cutler refunded over $1 million to Harris Bank after an audit of relevant records. (Adm. Ex. 22 at 18).
In the disciplinary proceedings, Petitioner contended she was taking prescription medication at the time of her misconduct, which caused her to act irrationally. Petitioner described the medication prescribed. She testified she was not aware at the time of a change in her conduct. Petitioner's attorneys had hired an investigator in 1996 to learn about her activities because she told them her recollection of the time period was limited. (Tr. 74-75). As a consequence, Petitioner learned she had not gone to her office every day and frequently remained home. (Adm. Ex. 22 at 12-13).
The Hearing Board rejected Petitioner's defense, observing: "(w)hile her intent may have been diminished," Petitioner successfully perpetrated a "conscious, calculated and concealed plan of dishonesty, fraud, and deceit" over approximately four years, with no
assistance from any accomplices and for her own sole benefit. (Adm. Ex. 22 at 19). The Hearing Board described Petitioner's misconduct as extremely egregious and observed Petitioner engaged in calculated deception when inquiries into her misconduct began. (Adm. Ex. 22 at 19).
The panel which heard the underlying disciplinary case was divided as to the sanction to recommend. The majority recommended disbarment. In doing so, the majority emphasized, despite her diminished capacity, Petitioner remained able to function properly in many areas, particularly employment, and did not exhibit other significant signs of diminished capacity. (Adm. Ex. 22 at 26).
The dissent agreed Petitioner's conduct was "dishonest, deceitful and egregious." (Adm. Ex. 22 at 26). However, because the disciplinary case proceeded under Supreme Court Rule 761, given the Federal Court's finding of diminished mental capacity, the dissent recommended a suspension for five years and until further order of the Court. (Adm. Ex. 22 at 26-28).
Petitioner filed exceptions. The Review Board affirmed the Hearing Board's findings of misconduct and its evidentiary rulings. The Review Board recommended a suspension for five years and until further order of the Court, given Judge Norgle's finding Petitioner's mental condition influenced her actions and Petitioner's testimony as to the impact of prescription drugs on her actions. (Pet. Ex. 20).
The Illinois Supreme Court allowed the Administrator's petition for leave to file exceptions. The Court disbarred Petitioner. Walsh, M.R. 16705. The Court later denied Petitioner's pro se Petition for Reconsideration, in which Petitioner sought remand to present mitigating evidence as to her medical problems and to have Dr. Meltzer testify. (Adm. Ex. 38).
In 2002, and on the Administrator's petition, S. Ct. R. 773, the Court entered judgment for costs of $17,663.88. Petitioner paid the judgment plus $4,106.85 interest in 2007. (Tr. 127-28, 515-16, 519-20; Adm. Ex. 39).
EVIDENCE AT HEARING ON REINSTATEMENT PETITION
Petitioner testified and presented testimony from Ray Keith Roark, Stafford Christopher Henry, M.D., Christopher Reyburn, M.D., Justice Sheila O'Brien, Mark Lawrence Eshman, Cynthia Jane Woolley, Theodore James Fairchild, David H. Leroy, and, via evidence deposition, Thomas G. Walker. Petitioner's Exhibits 1 through 13, 15 through 20 and redacted versions of Petitioner's Exhibits 21 and 22 were admitted into evidence.
The Administrator presented testimony from James Conway and Terry McIlroy. Administrator's Exhibits 1, 3 through 10, 12, 13 (in part), 15 through 29, 31 through 36, 38, and 39 were admitted into evidence.
Petitioner was 54 years old at the time of the reinstatement hearing. She has lived in Idaho since August 1994, except while she was incarcerated. The misconduct which led to Petitioner's disbarment occurred while she was living and practicing law in Illinois. Petitioner has never been convicted of a crime, other than the matters at issue in this case. (Tr. 48-49, 58).
Petitioner has not practiced law since 1994 (Tr. 106). Petitioner did not intend to return to Illinois to practice law. She wanted to be reinstated in Illinois so she could be admitted to practice law in Idaho. (Tr. 325-26, 538-39).
Petitioner married Gary Fairchild ("Fairchild") in June 1984. At the time, Fairchild was managing partner at Winston and Strawn. The couple divorced in 1998. During the marriage,
Petitioner used the name Maureen Walsh Fairchild. Two children were born of the marriage. Fairchild also had a daughter from a prior marriage. (Tr. 50, 51, 54).
Petitioner obtained her undergraduate degree from the University of Notre Dame. She graduated summa cum laude and Phi Beta Kappa. Petitioner obtained her law degree from Northwestern University School of Law, graduating in the top third of her class. (Tr. 52-54).
After law school, Petitioner obtained a position as an associate at Sidley and Austin. She worked there from 1980 until 1984. (Tr. 54). Petitioner left Sidley and Austin after an issue arose about the manner in which she had submitted expenses incurred during a business trip to New York City. Petitioner testified she purchased her wedding dress while on the trip. A Sidley and Austin partner objected to her charging the expenses of the trip to the client because she also handled a personal matter while on the trip. After that incident, Petitioner testified she was told she would not make partner and, on the advice of another partner, she looked for a different job. (Tr. 336-42).
In 1984, Petitioner began working at Chapman and Cutler as an associate. Most of Petitioner's work at Chapman and Cutler involved civil litigation for Harris Trust and Savings Bank ("Harris Bank"). Petitioner became an income partner in 1990 or 1991, after a series of excellent annual reviews, and in 1992 or 1993, she was nominated to become an equity or "managing" partner, which was the next step above income partner. Petitioner never received the votes needed to become an equity partner. (Tr. 54-55, 344-47).
The Amended Complaint in the disciplinary proceedings was based on Petitioner's conviction on the criminal charges. In summary, during the period from 1991 through 1994, Petitioner fabricated time records and caused clients to be billed for work she did not perform.
She did so numerous times, with the billing fraud totaling over $800,000. In addition, Petitioner obtained reimbursement for $50,000 in personal expenses by falsely representing they were work-related. By falsely representing the services were provided to clients of the firm, Petitioner caused Chapman and Cutler to pay for legal services provided to Petitioner's nanny and for public relations services provided to Fairchild. After billing Winston and Strawn over $200,000 for services she did not perform, Petitioner caused fees received from Winston and Strawn to be applied to unrelated matters. Petitioner caused false reconstructions of bills and time records to be created in an effort to support fraudulent bills for her time. She also made a false statement to a federal judge in litigation arising out of a billing dispute. (Tr. 357-60; Adm. Ex. 22 at 5-10).
Assistant United States Attorney James Conway ("Conway") investigated Petitioner's conduct and prosecuted the criminal case. Conway explained the efforts made during the government's investigation to determine whether Petitioner might have been working at times for which she submitted questioned time records. As to the matters charged in the indictment, Conway concluded she was not working. As noted above, Petitioner admitted the matters charged in the indictment. (Tr. 578-83).
Chapman and Cutler began an investigation into Petitioner's billing practices after issues arose in relation to bills to two clients. Terry McIlroy ("McIlroy"), a partner at Chapman and Cutler, was primarily responsible for the firm's investigation. He learned work ostensibly done for Winston and Strawn, on which Petitioner was the billing attorney, had not been performed, and expanded his investigation. (Tr. 638-40).
McIlroy explained the process he used in reviewing files to determine if there had been over-billing. Typically Petitioner had done some work on the files involved, but over-billed for
it. McIlroy spent several hundred hours on the project. Ultimately, he concluded there had been significant over-billing. (Tr. 641-46).
Petitioner testified she would never again engage in false billing or any unethical or criminal behavior. She acknowledged her conduct was serious and warranted disbarment. (Tr. 58, 134, 508-509). Petitioner expressed regret and shame for her conduct and remorse over the harm she caused her clients, law firm, family and friends. (Tr. 67, 328). While stating she did not remember each incident of false billing, Petitioner accepted responsibility for her conduct even if she could not remember it. Petitioner testified there was no one to blame but herself. (Tr. 81-82). Petitioner testified she agreed with the finding of misconduct in the underlying disciplinary case, including the finding she acted with calculated deceit. (Tr. 508-509).
Move to Idaho
Chapman and Cutler terminated Petitioner's employment in May 1994. In August 1994, Petitioner moved to Ketchum, Idaho with her two children. From 1994 to 1997, Petitioner worked at a gift store. (Tr. 95, 98-99, 103).
Petitioner began serving her criminal sentence in January 1998. She was released from the halfway house in October 1998. While Petitioner was incarcerated, her children lived in Illinois with Fairchild. After she was released, Petitioner and her children returned to Ketchum. Petitioner obtained a job as a secretary, a position she held for three years. (Tr. 100-104, 109-10).
After her return to Idaho, Petitioner assisted at a local soup kitchen until 2000, volunteered in a Special Olympics program from 2006 to 2008, and served as a lector at her church for a time. (Tr. 320-22, 557-58).
Ketchum, Idaho is a town of about 3,000 people. The lifestyle was much simpler than the lifestyle in Chicago. Upon returning to Ketchum, Petitioner testified she endeavored to restore continuity and stability for her children. Petitioner focused on raising her children. Petitioner was particularly concerned with her children's education and sent them to the private school they attended before Petitioner went to prison. (Tr. 103-104, 109-10, 318-19, 322).
Petitioner's son Theodore James Fairchild ("Jimmy") testified. Jimmy remembered moving to Idaho with his mother and sister in 1994, when he was 8 years old. Jimmy knew he was moving to Idaho because his father was going to prison and his mother wanted to get away from Chicago. Despite a difficult transition, the family adjusted. (Tr. 846-47).
Petitioner went to prison when Jimmy was about 12. He testified she was upfront with him about the situation. She told him how long she expected to be gone and they would return to Idaho when she was released. Following her release, Jimmy testified his mother was focused on resuming a normal life for him and his sister, getting the family into a routine, based around school and the children's extracurricular activities. (Tr. 847-50).
Jimmy and Petitioner's daughter, Caroline Fairchild ("Caroline"), were very successful at the school they attended in Idaho. Jimmy had obtained an undergraduate degree from the University of Notre Dame. At the time of the hearing, he was a third year law student at the University of Idaho and Caroline was a junior at Duke University. Caroline was attending Duke on a prestigious scholarship. (Tr. 798-802, 842-44).
Lawsuit Against Chapman and Cutler
On May 14, 1999, Petitioner filed suit in Idaho against Chapman and Cutler and numerous individual Chapman and Cutler partners, alleging gender discrimination and violations of the Americans with Disabilities Act. The suit alleged the firm treated Petitioner and her
billing irregularities differently than it treated billing issues involving male attorneys without her medical conditions. (Tr. 107-108, 171-73, 521-22; Adm. Exs. 25, 26). Around the time Petitioner's misconduct was discovered, the media reported Chapman and Cutler partner James Spiotto ("Spiotto") was billing 5,000 to 6,000 hours per year, generating further publicity about the firm's billing practices. Another male attorney, an alcoholic, was also facing billing inquiries. (Tr. 691-92; Pet. Exs. 18, 19).
Idaho attorney Ray Keith Roark ("Roark") represented Petitioner in the lawsuit. (Tr. 171-72, 521). Roark testified he and Petitioner jointly came up with the idea to file the suit and Petitioner drafted much of the complaint. Petitioner described the complaint as a collaborative effort, but she had reviewed the complaint before it was filed. (Tr. 217-18, 522-23).
When she was released from prison, Petitioner testified she harbored ill feelings against Chapman and Cutler, and filed the suit. She testified she no longer felt animosity toward the firm and regretted filing the lawsuit. (Tr. 107-108).
Petitioner voluntarily dismissed the lawsuit in April 2000. At the time, various defense motions had been briefed and argued, but no decision had been issued. Over time, Petitioner had identified several reasons for her decision to dismiss the suit. The reasons included: a) a realization she was responsible for the situation and needed to take responsibility for her own actions rather than attempt to blame others; b) Chapman and Cutler had moved to transfer venue and Petitioner did not have the resources to prosecute the case in Chicago; and c) a discussion with Roark about whether to pursue the law suit. Petitioner testified all these reasons entered into her decision to dismiss the lawsuit. (Tr. 107-108, 171-76, 535-37; Adm. Ex. 25).
Roark testified he believed, when the complaint was filed, the claims were meritorious. (Tr. 218). Petitioner testified she also believed she had a good faith basis for making the
allegations in the complaint and believed the matters stated in the complaint were true when the suit was filed. Since then, Petitioner had changed her mind and testified, despite contrary statements in the complaint, she now recognized there was no one to blame for her conduct but herself, and the firm had not breached any duty toward her. (Tr. 524-35).
Chapman and Cutler incurred approximately $63,000 in legal fees defending the lawsuit. Petitioner did not reimburse the firm for those expenses. (Tr. 537, 678-79).
Restitution and Financial Matters
As part of her sentence in the criminal case, Petitioner was required to make restitution of $50,000. This represented the amount of the personal expenses for which Petitioner obtained reimbursement by falsely representing the expenses were work-related. The parties agreed those expenses amounted to $50,000. (Tr. 59-60; Pet. Ex. 10; Adm. Ex. 3 at 117). While the sentencing order provided an option to do so, the Court did not designate this amount as less than full restitution or state reasons restitution was being ordered in a less than full amount. (Pet. Ex. 10 at 5).
The sentencing order directed Petitioner to pay restitution in equal monthly installments over her three-year mandatory supervised release term, beginning six months after her release from custody. The original order did not specify the monthly installment amount. (Pet. Ex. 10).
Petitioner ultimately paid this amount. She did not complete payment until 2007. (Adm. Ex. 32).
Petitioner made restitution payments through the Court. (Tr. 373-74). She made some installment payments. Petitioner also made some lump sum payments, typically obtaining the funds to make lump sum payments by selling jewelry. (Tr. 111-12; Pet. Ex. 11).
At times, Petitioner failed to make monthly restitution payments. Petitioner testified at those times she was financially unable to do so. (Tr. 111-12, 381; Pet. Ex. 11). Petitioner's secretarial job paid $8.00 or $9.00 per hour. Petitioner's other jobs since leaving Chapman and Cutler were minimum wage jobs. The family's finances were strained. Petitioner's mother assisted them financially for a time. (Tr. 99, 102, 109-10). Petitioner testified Fairchild paid limited child support until 2002 or 2003, when he began to pay $1,200 per month per child, pursuant to a court order. (Tr. 552-53).
Annual tuition at the private school Petitioner's children attended through elementary and high school in Idaho ranged from $7,500 in elementary school to the low to mid $20,000s when Petitioner's younger child graduated. At times, Petitioner had difficulty paying tuition. Petitioner's mother assisted with tuition payments for a time. A benefactor of the school also paid a significant tuition arrearage for Petitioner and her family. (Tr. 123, 554-55, 797).
By July 2000, Petitioner had paid approximately $20,000 toward restitution. After a payment in July 2000, no payments were made until May 2001. Petitioner testified she stopped paying because her accountant told her she had paid the restitution due, as described below. (Tr. 113-14: Pet. Ex. 11).
On April 30, 2001, Roark filed a motion in the criminal proceedings seeking a discharge of Petitioner's obligation to pay further restitution. The Motion alleged Petitioner had satisfied her obligation to pay restitution because, in addition to the payments Petitioner made through the Court, Chapman and Cutler never distributed the $68,134 in Petitioner's capital account to her. (Adm. Ex. 5).
In fact, this was incorrect, as became apparent from documents and testimony presented on May 4, 2001, when the Court heard the Motion. Chapman and Cutler's comptroller provided
documents to Assistant United States Attorney Conway and testified the money in Petitioner's capital account was paid to her in 1994. (Tr. 119, 192-93, 379-81, 607-609; Adm. Ex. 36). The Court denied the request for discharge of restitution, as based on factually incorrect premises. (Tr. 229-30; Adm. Exs. 7, 36).
Conway considered the Motion misleading on its face. (Tr. 609). However, the Motion was filed based on the conclusions of Sean McCoy ("McCoy") and supported by affidavits signed by McCoy stating he had not been able to determine how the money in the capital account had been handled. (Tr. 116-17; 177-81; Adm. Ex. 5). McCoy was the Federally Licensed Tax Practitioner Petitioner hired after her release to prepare several years of back tax returns. Petitioner's tax returns were filed in 2000. (Tr. 114-17, 176-77; Adm. Ex. 5). McCoy had attempted, unsuccessfully, to obtain information from Chapman and Cutler. Based on the information he had, McCoy concluded the firm had not released the funds in Petitioner's capital account at the firm to Petitioner. Roark, who also had tried unsuccessfully to obtain information from Chapman and Cutler, reached a similar conclusion and decided to present the matter to the court. (Tr. 114-17, 176-81; Adm. Ex. 5). Given McCoy's conclusions, Roark believed he had a good faith basis for doing so. He later acknowledged the Motion was not well-founded. (Tr. 185; Pet. Ex. 13; Adm. Ex. 36 at 53).
After the Motion was denied, Petitioner began paying restitution again. In June 2001, Petitioner made a payment of $7,500, using funds obtained from a loan and the sale of jewelry. (Tr. 120-21).
Petitioner again stopped paying restitution after October 2001. She was having financial difficulty in 2002. In 2002, Petitioner's adjusted gross income was $5,000. Her mother was no
longer able to send money, and Fairchild temporarily stopped paying child support. (Tr. 121-22; Pet. Ex. 16 at 58; Adm. Ex. 8).
In June 2003, an order was issued in the criminal proceedings directing Petitioner to make fixed installment payments of $400 per month on the remaining $23,451 balance due from the original restitution order. (Adm. Exs. 8, 9). Petitioner resumed payments. While there were a couple of months when Petitioner did not pay the installment due, at other times, Petitioner paid larger amounts. She completed payment in 2007. (Pet. Exs. 11, 12).
By 2007, Petitioner had paid other outstanding financial obligations, including $6,073.22 to the Internal Revenue Service for unpaid 1994 taxes and the judgment for costs in the underlying disciplinary proceedings. (Adm. Ex. 28 at 9-10).
The only amount Petitioner paid Chapman and Cutler was the $50,000 ordered as restitution in the criminal case. She had not reimbursed Chapman and Cutler for any additional amounts. Until these proceedings, no one had ever told Petitioner she owed anything additional or asked her to make any additional payments. (Tr. 125-26, 385).2
Information was presented to the Court in the federal criminal proceedings concerning the amount of the loss resulting from Petitioner's improper billing. (Adm. Ex. 3 at 74-79; Adm. Ex. 13 at 248-52). In the criminal proceedings, the Court determined the loss amounted to $800,000. (Pet. Ex. 10 at 4). In stating his findings on the record, Judge Norgle stated the loss exceeded $800,000 but he could not conclude it was a significantly higher amount, such as the $1.3 million argued by the government. (Adm. Ex. 3 at 79).
The disciplinary case was heard in December 1998. At that time, Harry Lamberson testified Chapman and Cutler refunded over $1 million to Harris Bank and over $270,000 to
Winston and Strawn due to Petitioner's over-billing. (Adm. Ex. 22 at 1, 18). All refunds to clients had been paid by 1995. (Tr. 685).
Terry McIlroy, the Chapman and Cutler partner who testified at the reinstatement hearing, estimated Chapman and Cutler had refunded a total of $2.3 million to all affected clients. (Tr. 659-68). Petitioner testified she did not fraudulently bill $2.3 million and estimated the amount was $800,000. Her total billing in 1991 through 1993 was approximately $1.6 million. (Tr. 909-11, 915-16; Pet. Exs. 21-22).
After learning Petitioner had submitted false time records, Chapman and Cutler sought to rehabilitate relationships with its clients and reimburse them for any over-billing. McIlroy testified no one had ever determined the precise amount Petitioner over-billed. McIlroy decided how much to refund to each client involved, subject to the firm's approval and communication with the client. In determining the amount to refund, McIlroy's goal was to make things right with the clients involved and keep them happy. For example, in response to client requests, Chapman and Cutler agreed to increase the amount the firm initially decided to refund, in one situation even though the client had signed an agreement accepting the original refund. McIlroy attempted to err, if at all, in favor of generous reimbursement. McIlroy's efforts succeeded; the firm kept major clients such as Harris Bank despite Petitioner's misconduct. Refunds included interest and other items, including fees paid to other attorneys hired in connection with the over-billing issues. For example, in addition to refunding fees it had received, Chapman and Cutler reimbursed Harris Bank for $165,000 in fees Harris Bank paid other lawyers to represent it in resolving over-billing issues. (Tr. 639-40, 646-48, 651, 660-63, 669-73, 686-90, 719; Adm. Exs. 15-21).
On files in which over-billing was found, Petitioner typically had done some work, but not as much as claimed. (Tr. 703). As to some files, Chapman and Cutler segregated out the time Petitioner spent on the file and refunded only that amount. As to other matters, McIlroy was not certain whether refunds might have included billing for work performed by other attorneys. (Tr. 695-702, 717-18).
Petitioner testified the $800,000 in falsely billed fees was not included in the court-ordered restitution because she had not received those funds; Chapman and Cutler received those fees. (Tr. 59-60).
Applications for Admission to Idaho Bar
Petitioner had filed three unsuccessful applications for admission to the Idaho Bar. (Tr. 539-40).
Petitioner first applied for admission to the Idaho Bar in 1995, before she was indicted. (Tr. 540). In a memorandum submitted with the 1995 application, Petitioner asserted she was terminated by, and "under siege" from, Chapman and Cutler, because she had spoken out against what she described as "massive and fraudulent billing practices by another partner," referring to James Spiotto. (Tr. 543; Adm. Ex. 23). The 1995 application refers to issues in Petitioner's background, without going into detail. (Adm. Ex. 24).
Petitioner submitted another application in January 2005. Roark represented Petitioner in this process, but Petitioner collaborated with Roark in preparing the letter which accompanied the application. She also had reviewed the documents and made any changes before the application was sent. (Tr. 224-27, 543-44; Adm. Ex. 27).
The letter asserts Petitioner was denied due process in the Illinois disciplinary proceedings and was prevented from presenting evidence to support her claims regarding the
impact of her psychological condition on her conduct. (Adm. Ex. 27). According to the letter, the "principal basis of the indictment" was the fact that invoices sent by Chapman and Cutler were not adequately supported by Petitioner's timesheets. (Adm. Ex. 27 at 2). In this context, the letter stated Petitioner did not receive any of the funds collected from clients as a result of her inflated billings. The letter did not disclose the funds Petitioner received through false requests for reimbursement of expenses. (Adm. Ex. 27 at 2).
After asserting the Hearing Board majority in the underlying disciplinary proceedings "ignored the District Court's order of diminished capacity," the letter stated the Review Board "overturned the Hearing Board's ruling" and Petitioner's disbarment "was, in effect, converted to a suspension…for five years, subject to (Petitioner) demonstrating that she no longer suffered from bi-polar disorder." (Adm. Ex. 27 at 4). The letter then stated the Administrator appealed and "in a one-page Order the Hearing Board's ruling of disbarment was affirmed without explanation by the Illinois Supreme Court." (Adm. Ex. 27 at 4).
Petitioner reapplied in October 2007. (Adm. Ex. 28). The letter in support of the 2007 application, by Petitioner's attorney Debora Kristensen, similarly asserts a lack of due process in the Illinois disciplinary proceedings, as a result of the exclusion of medical testimony. (Adm. Ex. 28 at 8-9). The letter asserts the decision to exclude medical evidence was made during prehearing proceedings occurring while Petitioner was in custody, without acknowledging Petitioner was represented by counsel at the time. (Adm. Ex. 28 at 8). The correspondence also suggests Petitioner's misconduct essentially consisted of her timesheets not supporting the amounts billed. (Adm. Ex. 28 at 6).
Counsel for the Administrator cross-examined Petitioner about statements made in connection with her applications for admission to the Idaho Bar, which suggested she resigned
from Chapman and Cutler as opposed to being terminated, was denied due process in the Illinois disciplinary proceedings, and did not profit from her underlying misconduct. Petitioner stated she believed at the time they were made she had a good faith basis for those statements or legal positions. She had since changed her viewpoint as to many of those statements. (Tr. 540-48). Petitioner acknowledged it was misleading to state she had not received any funds as a result of her misconduct. (Tr. 546). She also testified she no longer believed she had been denied due process in the Illinois disciplinary proceedings. (Tr. 545-48).
Legal Research Work
After working as a secretary for about three years, Petitioner received an unsolicited call from a Westlaw representative. At the time, few Idaho law firms had Westlaw, and Petitioner began to consider doing legal research using Westlaw for Idaho lawyers. (Tr. 129-30).
Petitioner asked Roark, her attorney, whether she could do legal research and writing on a contractual basis for Idaho attorneys without violating Idaho ethical rules. At Roark's suggestion and with his assistance, Petitioner sought an opinion from Idaho Bar Counsel Brad Andrews ("Andrews"). (Tr. 130, 199).
Andrews rendered the opinion Petitioner would not violate Idaho rules against the unauthorized practice of law by providing legal research and writing services to Idaho attorneys, so long as she did not advise clients or sign pleadings, in her own name or anyone else's, and so long as all her work was directed to, and reviewed by, a licensed attorney. (Tr.131, 200-201).
Petitioner did not do any work for any Idaho attorneys until after she obtained this opinion. (Tr. 132). Since her disbarment, Petitioner had not given any clients advice or appeared on behalf of anyone in court, nor had she done any legal work in Illinois or for any Illinois attorneys. (Tr. 131).
Petitioner has been doing legal research work for Idaho attorneys since 2001. This work involved issues in various legal areas and kept Petitioner informed of the current state of the law. In a further effort to stay current, Petitioner observed trials on her own time and had taken two continuing education classes in ethics. (Tr. 132-34).
Petitioner submitted time sheets to the attorneys for the legal research and writing work she performed. No one had raised any issues with those time sheets. (Tr. 133-34).
Roark had hired Petitioner to perform legal research for him. He testified Petitioner's work was very good and very thorough. (Tr. 201-203).
Petitioner had done research for Idaho attorney Cynthia Jane Woolley ("Woolley"). Woolley prepared the final product, incorporating Petitioner's research. Woolley testified Petitioner's research was excellent and her knowledge of the law was outstanding. (Tr. 822-25).
Idaho attorney David H. Leroy ("Leroy") met Petitioner in September 2002. Leroy was representing a wealthy party in a complicated divorce case and needed local counsel in Petitioner's area. The client's assets were extensive, he had limited records and there were potential community property interests in 24 businesses. In addition, because the client's assets were located in multiple states, the laws of those states were involved. There were also unique aspects of Idaho law concerning valuation of marital property. Leroy was anticipating a three-week trial involving a great deal of work and it would be very "document-driven" (Tr. 867-72, 877-80).
Leroy asked Idaho attorney Douglas Aanestad ("Aanestad") to act as local counsel. Aanestad agreed do so because Petitioner was available to assist him. Aanestad informed Leroy Petitioner had been disbarred in Illinois. Leroy then met with Petitioner and they discussed her circumstances, including her disbarment and conviction. (Tr. 869-75).
Working under Aanestad's supervision, Petitioner took the lead role in marshaling over 70,000 pages of documents, indexing the documents, analyzing them, segregating them, and preparing them for the defense. Petitioner researched and briefed legal issues, including conflict of law questions. (Tr. 877-79). Leroy testified a favorable settlement had been agreed to after about a year and a half of litigation because his side was far more effective than his opponent's in organizing evidence and researching the legal issues. Leroy testified Petitioner's work involved extremely sophisticated legal concepts and said he considered Petitioner's knowledge of the law to be excellent, describing her work as superior. In Leroy's opinion, the quality of Petitioner's work made it possible for Leroy and Aanestad, who had small practices, to handle a large and complicated case successfully. (Tr. 879-81).
Idaho attorney Thomas H. Walker ("Walker") represented the other party in that divorce matter. He testified he had noticed the briefing by the opposing side was exceptional and, after the case had been concluded, he spoke with Leroy and learned of Petitioner's involvement. Walker then contacted Petitioner and began hiring her for assignments from his firm. (Pet. Ex. 2 at 8, 12-16).
After performing several small assignments for Walker, Petitioner met with Walker and told him of her conviction and disbarment. (Pet. Ex. 2 at 16-19). Walker regarded Petitioner's explanation as forthright and honest. Although Petitioner told Walker of her health issues, he did not get the impression Petitioner was trying to make excuses for her misconduct, but simply laying out the facts. Walker continued to hire Petitioner as an independent contractor. She performed research and writing work for him. After Walker received a work product from Petitioner, he testified he reviewed the cases cited and edited the work, as he did with anyone else who performed such work for him. (Pet. Ex. 2 at 17-23). Walker considered Petitioner's
work to be exceptional and her knowledge of the law very thorough. (Pet. Ex. 2 at 22-23, 25-26).
Representations as to Petitioner's Status
Petitioner testified she generally described her job as "clerical," "research" or "paralegal." On tax returns, Petitioner identified her occupation as "clerical" or "researcher." On the website she maintained, Petitioner identified herself as a paralegal. (Tr. 311-12, 561).
In July 2006, Petitioner co-signed an application for a $10,000 loan for her son to buy a car. On the application, Petitioner listed her employment as a "self-employed research attorney." (Tr. 310; Adm. Ex. 29). Petitioner acknowledged it was incorrect to describe herself as a "research attorney." Petitioner testified the other information she provided concerning the loan was accurate and she did not intend to make any misrepresentations to the bank. (Tr. 312-13).
Evidence was presented as to the manner in which Petitioner was described in connection with a fee petition filed in a case on which Petitioner had performed work for Aanestad (Fullerton v. Griswold). (Tr. 315). At the conclusion of the case, Aanestad filed a fee petition, which included a request for compensation for Petitioner's services. In the fee petition, Aanestad referred to Petitioner as an attorney and sought compensation for her time at an hourly rate of $150. The opposing party objected. Opposing counsel knew Petitioner and told the Court she was not an attorney, but functioned as a paralegal. (Tr. 488-90, 492-94, 502; Adm. Ex. 30 at 3, 13, 27-28).
At the hearing on the fee petition, on March 31, 2005, Aanestad described Petitioner as an attorney. (Tr. 502; Adm. Ex. 30 at 1, 13). He stated:
[Petitioner] is an attorney. She has a long and reputable history of practicing law in the state of Illinois. I believe she went to Northwestern Law School. I don't believe she's admitted in the State of Idaho. … she certainly shouldn't be considered a paralegal in this case just because she's not admitted to the bar of
this state, and we submit that her experience and her litigation skills, which is the area in which she practiced, are very good and probably deserve an even higher hourly rate than was billed for her.
(Adm. Ex. 30 at 37).
The judge directed Aanestad to provide an affidavit from Petitioner stating whether she was an attorney in good standing, if so, where, if she was disbarred or disciplined, and disclosing any problems in her ability to be licensed. Given the issues, the judge observed it was important whether Petitioner was licensed anywhere, even if not in Idaho. (Adm. Ex. 30 at 46, 47).
Petitioner was not present at the hearing and testified she did not know what was said at the hearing. Petitioner had previously told Aanestad she had been disbarred in Illinois. (Tr. 315-16, 502-505).
Petitioner signed an affidavit, which was filed in the Fullerton case. (Tr. 491). The affidavit described her academic background, including honors received, as an undergraduate and law student. The affidavit continued with the statement: "I am not admitted to practice law in any state but have applied to take the Idaho Bar exam in July 2005." (Adm. Ex. 31). No reference was made to Petitioner's status as a disbarred attorney or to the Illinois disciplinary proceedings. (Tr. 506; Adm. Ex. 31).
Petitioner testified she assumed when she signed the affidavit she was doing so to support the claim for her time doing paralegal work and did not think her disbarment had anything to do with that work. (Tr. 315, 504-507). Petitioner testified she thought information as to her law school education was inserted to suggest a $40 hourly rate for her services was a bargain. (Tr. 563-64). Petitioner testified she had been paid $40 per hour and, when she signed the affidavit, she had not seen the fee petition. Petitioner learned later Aanestad was seeking to be paid $150 per hour for her time, as if her time were compensable as attorney time. (Tr. 315, 492-94).
Petitioner acknowledged, given the judge's comments at the hearing, it would have been crucial to disclose she had been disbarred in Illinois, but she testified she was not aware of the judge's comments until her deposition in the reinstatement proceedings. (Tr. 504-506).
Petitioner's Health, Treatment, and Prognosis
Petitioner testified she had had asthma for years. Her asthma started becoming progressively worse in 1990 after the birth of her second child. Prior to 1991, Petitioner had taken medication to maintain her asthma. She was given Prednisone only if there were additional serious problems and then only temporarily and in doses of 10 to 20 mg. (Tr. 68-69).
In June 1991, Petitioner was hospitalized for an acute exacerbation of asthma. Around that time, an increased dosage of Prednisone, to 60 to 80 mg. per day, was prescribed. (Tr. 68-69). In 1992, Petitioner's asthma continued to worsen, and Petitioner received emergency room care three or four times. The prescribed Prednisone was increased further, to 120 mg. per day. Thereafter Petitioner was maintained on this dosage of Prednisone. (Tr. 70-71).
Petitioner testified, although she did not realize it at the time, the high dose of Prednisone was affecting her mental state. She gained significant weight, partly due to steroid use. Petitioner was also severely depressed between 1991 and 1994. In 1993, Petitioner began seeing a psychiatrist, who prescribed additional medication, including benzodiazepines. (Tr. 71-74, 80).
Petitioner testified she did not have a good memory of events during that time. She attributed this to the combined effect of the benzodiazepines and steroids. (Tr. 81).
In mid-1991 to early 1994, Petitioner testified her behavior changed. She went on major shopping sprees and took frequent personal trips. In fall 1993 Petitioner began telling people she had ovarian cancer. This was false. Even though doing so caused her to miss a major event in
her son's life, Petitioner went to California for elective breast reduction surgery. She underwent the surgery because she thought she could breathe better if she removed weight from her chest. (Tr. 77-81, 350-51).
Beginning in 1991, Petitioner's time keeping became vague and less accurate. She would bill for a single, generically stated item over multiple full work days. Petitioner testified she previously kept accurate, detailed time sheets. (Tr. 83-89; Pet. Ex. 9). During this period, Petitioner had a very inflated opinion of herself and considered herself a world class attorney, entitled to bill whatever she considered appropriate. (Tr. 82-83). At times she submitted time sheets in advance of the days to which the sheets related. This prompted Chapman and Cutler to question and review Petitioner's billing. (Tr. 87).
In February 1994, Petitioner returned to Chicago from Idaho at Harry Lamberson's request to discuss billing issues. Chapman and Cutler initially placed Petitioner on medical leave. The firm terminated Petitioner's employment in May 1994. (Tr. 94-95).
Thereafter, on a friend's advice, Petitioner saw an attorney. The attorney inquired what she was "on." (Tr. 96). Petitioner later went to a psychiatrist, who discontinued some of her medication. (Tr. 97, 100).
In 1996, Petitioner's attorneys hired an investigator to determine where she had been and what she had been doing during times she could not remember. Petitioner was told she had stayed in her bedroom for extended periods playing Candy Land with her children and fearing to leave the house. She attempted suicide two or three times during 1992 and 1993. (Tr. 74-75).
Petitioner's asthma abated significantly after Petitioner moved to Idaho. Her health had improved further by 1998 when she left prison, and continued to improve since then. (Tr. 134).
In Idaho, Dr. Hall treated Petitioner for asthma. He modified the prior treatment regimen and weaned Petitioner off of oral Prednisone, on which she had become dependent. Petitioner also began seeing a psychiatrist, Dr. Gerald Brooks ("Dr. Brooks"), and a psychotherapist. Dr. Brooks prescribed a combination of medications. (Tr. 100, 134-35, 306-307).
Illinois Appellate Court Justice Sheila Marie O'Brien ("Justice O'Brien") testified she and Petitioner have been close friends since college. (Tr. 729-31). Justice O'Brien observed changes in Petitioner beginning in late 1993 and continuing into 1994. Petitioner was calling Justice O'Brien at all hours of the day and night and was behaving in a frenzied manner. A mutual friend had noticed similar behavior by Petitioner. (Tr. 732-34).
Justice O'Brien became furious with Petitioner when, in May 1994, Petitioner asked Justice O'Brien to attend a significant family event in Petitioner's stead, as Petitioner was out of town. In addition to telling her to get home for the occasion, Justice O'Brien told Petitioner to call a lawyer, the family priest and a doctor, tell them the truth and attend to whatever was causing the problems in her life. (Tr. 735-38).
Christopher Blaine Reyburn, M.D.
Christopher Blaine Reyburn, M.D. ("Dr. Reyburn"), a board-certified psychiatrist, took over Dr. Brooks' practice after Dr. Brooks retired. (Tr. 402, 407-408; Pet. Ex. 5). He first saw Petitioner in October 2007 and continued to treat her thereafter. (Tr. 136, 409-10; Pet. Ex. 7).
Dr. Reyburn testified Petitioner told him at their first meeting she had previously been diagnosed with bipolar disorder. At the time, she was taking Depakote, which is used to treat bipolar disorder, and Wellbutrin, an anti-depressant. (Tr. 410-11, 415).
Dr. Reyburn had a longer meeting with Petitioner about two weeks later and reviewed numerous documents. He then prepared a report for Petitioner's 2007 application to take the Idaho State Bar Exam. (Tr. 419-21; Pet. Ex. 6).
Petitioner had been on an extremely high dose of Prednisone for a long time at the time of her misconduct. (Tr. 429-31).
At the time of her criminal conduct, in Dr. Reyburn's opinion, Petitioner suffered from a mood disorder, which resulted in multiple abnormalities, including memory impairment, poor judgment, impulsivity, grandiosity, amnesia, disorganization, global cognitive impairment and inability to manage or keep track of time. (Tr. 423-28; Pet. Ex. 6). Dr. Reyburn testified the medications Petitioner was taking at the time would impair mental functioning, judgment, memory and impulse control. (Tr. 425-31). Dr. Reyburn considered excessive prescription medication as the causative factor in Petitioner's misconduct; he did not consider Petitioner responsible for her behavior at that time. (Tr. 426, 431-32, 435, 474-75).
When he prepared his report in 2007, Dr. Reyburn thought Petitioner's medication exacerbated an underlying mood disorder. By the time of the hearing in 2010, Dr. Reyburn had concluded Petitioner's mood disorder was caused by the prescription medication, and was not a pre-existing condition exacerbated by the drugs. (Tr. 423-27; Pet. Ex. 6). Dr. Reyburn explained the reasons his opinion changed.
When he first met Petitioner, Dr. Reyburn questioned whether she really had bipolar disorder because she had been asymptomatic even though her prescribed dosage of Depakote was lower than the dosage required to prevent the manic phase of bipolar disorder. Dr. Reyburn did not change Petitioner's medication at that time; Petitioner believed her medication was helping and her condition was stable. (Tr. 410-18, 434-35).
Dr. Reyburn later learned the primary care physician, Dr. Hall, also thought Petitioner did not have bipolar disorder, but simply needed to be off steroids. (Tr. 418).
By July 2008, Petitioner had been asymptomatic for over fourteen years and Dr. Reyburn had not observed any change in Petitioner's condition since he began seeing her. Because of this, Dr. Reyburn discontinued Depakote. Shortly thereafter, because Petitioner remained stable, Dr. Reyburn also discontinued Wellbutrin. (Tr. 436-40). As of October 2008, Petitioner was stable without any psychiatric medicines. (Tr. 441-42).
Thereafter, Dr. Reyburn was out of town for a prolonged period and did not see Petitioner until March 2010. However, Petitioner continued to see Dr. Hall and her therapist. Dr. Reyburn maintained contact with Dr. Hall, who reported Petitioner remained stable. (Tr. 442-44, 468-69).
From March 2010 through the time of the hearing, Dr. Reyburn continued to treat Petitioner. He expected to continue treating her in the future. Dr. Reyburn testified Petitioner had not had any relapses and her mental health remained stable. (Tr. 444-45, 459-60).
Dr. Reyburn did not believe Petitioner had a mood disorder apart from that which had been induced by medication. Therefore, in Dr. Reyburn's opinion, the only thing which would place Petitioner at significant risk for recurrence would be if she resumed using systemic steroids. (Tr. 452-53, 473). Dr. Reyburn explained Petitioner was currently being treated for asthma with inhalers, not oral Prednisone. Although one of the inhalers contained Prednisone, the Prednisone was delivered directly to the lungs and not absorbed systemically. Therefore, Petitioner did not experience the serious systemic side effects of oral Prednisone. (Tr. 460-61). Dr. Reyburn testified Petitioner's condition could, and would need to be, closely monitored if a temporary course of oral steroids ever became necessary. (Tr. 462-64). Otherwise, in Dr.
Reyburn's opinion, assuming no use of oral steroids, the risk of recurrence was very low. (Tr. 473-74).
In Dr. Reyburn's opinion, Petitioner was fit to practice law and could consistently adhere to the Rules of Professional Conduct. (Tr. 451, 461; Pet. Ex. 6).
Stafford Christopher Henry, M.D.
Stafford Christopher Henry, M.D. ("Dr. Henry") is a board-certified psychiatrist with extensive qualifications and relevant expertise. (Tr. 242-43; Pet. Ex. 3).
Dr. Henry evaluated Petitioner for the Administrator on March 17, 2010. In connection with his evaluation, Dr. Henry reviewed documents and medical records, met with and interviewed Petitioner for over three hours, and spoke with the treating psychiatrist, Dr. Reyburn. (Tr. 247, 250-54; Pet. Ex. 4). The report of Dr. Henry's evaluation was admitted into evidence by both parties. (Adm. Ex. 33; Pet. Ex. 4). Petitioner called Dr. Henry as a witness. (Tr. 241).
While he testified there were some secondary diagnoses, Dr. Henry concluded Petitioner's primary psychiatric diagnosis was bipolar disorder, in remission. (Tr. 254-55; Pet. Ex. 4 at 10). He said bipolar disorder is a major psychiatric illness characterized by alternating periods of mania and depression. In the manic periods, the person typically exhibits symptoms such as an exaggerated sense of self. In the depressive phase, the person typically exhibits symptoms such as hopelessness and social isolation. (Tr. 254-55). Bipolar disorder can impair judgment, including moral judgments, and can be characterized by extremes in behavior, including grandiosity and impulsivity. (Tr. 254-55, 257-59).
Dr. Henry concluded Petitioner's psychiatric symptoms and the manifestation of acute symptoms Petitioner exhibited in the 1990's resulted from several factors in combination. In Dr. Henry's opinion, use of Prednisone was one major factor and the medications Petitioner had
been taking played a major role in the behavior which ultimately contributed to her professional misconduct. Dr. Henry also saw stress as a significant factor. Dr. Henry testified Petitioner's other medication, the benzodiazepines, could cause memory loss and precipitate depression. (Tr. 261, 267-73; Pet. Ex. 4 at 11-12).
Dr. Henry reported Petitioner told him she was very ashamed of her past misconduct and considered it inexcusable. She told him she thought of it every day. Petitioner believed mental illness played a part in her misconduct, but was not the whole story. (Pet. Ex. 4 at 6). She told Dr. Henry there were times when she deliberately and consciously engaged in misconduct and, at times, she knew she had not been working and attempted to cover her tracks. (Tr. 283-84; Pet. Ex. 4 at 7).
Dr. Henry observed Petitioner had admittedly engaged in misconduct unrelated to her bipolar disorder. (Pet. Ex. 4 at 11-12). Petitioner's admission there were times she went to work and intentionally acted to "cover her tracks" for work she knew she had not performed was significant to Dr. Henry because, particularly given the breadth and extent of the misconduct, this suggested conduct which was very deliberate and premeditated and not related to mental illness. (Tr. 283-84)
In Dr. Henry's opinion, Petitioner was no longer suffering from active symptoms of bipolar disorder or any major psychiatric disorder. (Pet. Ex. 4 at 11). Although Petitioner was still taking Prednisone, the dose and mode of administration maximized its therapeutic effects and minimized the risk of adverse side effects. (Tr. 276).
Dr. Henry recommended Petitioner continue in treatment with Dr. Reyburn. Provided she remained under psychiatric care, Dr. Henry did not see any mental health reason Petitioner could not practice law and consistently adhere to ethical rules. (Tr. 278-81; Pet. Ex. 4 at 14, 15).
Most of Petitioner's witnesses live in Idaho and came to Chicago to testify for her. (Tr. 138, 776, 812, 854).
Ray Keith Roark
Roark has practiced law in Idaho since 1978. He served as the elected Blaine County prosecuting attorney from 1978 until 1985 and as Mayor of Hailey, Idaho from 1989-93. Roark has had a private legal practice since 1985, concentrated in criminal defense litigation. Beginning in 1985, Roark also served as Special Examiner to the Idaho Judicial Council, a role in which he prosecutes disciplinary actions against Idaho judges. (Tr. 140-44, 147-50).
Roark represented Petitioner in some prior proceedings. He had spoken with her extensively about the underlying misconduct. Roark believed Petitioner had been candid with him concerning her conduct. (Tr. 164). Petitioner expressed remorse. Roark testified Petitioner was in the process of working toward genuine remorse, which he described as typical for persons in her circumstances. (Tr. 166-67).
Roark had spoken with other Idaho attorneys about Petitioner and her work. Petitioner had an unblemished reputation with them for truthfulness and veracity. Roark was willing to act as a mentor for Petitioner if she were reinstated and began practicing law in Idaho, (Tr. 210-11).
Justice Sheila Marie O'Brien
Justice O'Brien was a St. Clair County Circuit Judge from 1985 until 1991. She was appointed as an Associate Judge when she moved to Cook County in 1991. Since December 1994, Justice O'Brien has been an Illinois Appellate Court Justice. (Tr. 721-22).
Justice O'Brien and Petitioner have been good friends since they were freshmen in college. At that time, Petitioner had an excellent reputation for character and truthfulness. (Tr. 729-30).
Justice O'Brien and Petitioner maintained their friendship through law school and as attorneys. During the early 1990's, Petitioner enjoyed an excellent reputation in the local legal community for character and legal ability. (Tr. 730-31).
Justice O'Brien knew generally of Petitioner's misconduct. (Tr. 746). She was sure Petitioner's reputation in the Illinois legal community had been diminished by that misconduct. Justice O'Brien was unaware of Petitioner's reputation in Idaho. (Tr. 760).
After the incident in May 1994, Justice O'Brien did not see Petitioner until 2004. In 2004, Petitioner was her old self. Petitioner told Justice O'Brien she took responsibility for her past behavior and was turning her life around and would continue doing so. (Tr. 742-45).
Mark Lawrence Eshman
Eshman is a stock broker and a resident of Sun Valley, Idaho. (Tr. 778-79). Eshman described the Sun Valley/Wood River Valley community as a small town and a good place to raise children, in addition to being a popular resort. (Tr. 780-81).
Eshman served on the board of the Community School, a private school serving kindergarten through twelfth grade in the Sun Valley/Wood River Valley area. (Tr. 784-85). Eshman met Petitioner in 1994 through the Community School, as their daughters were good friends. (Tr. 785-86). Petitioner lived a routine lifestyle, revolving around her children's school and her job. (Tr. 789).
Eshman knew Petitioner was incarcerated due to over-billing at her former law firm. Eshman testified Petitioner expressed remorse for her conduct and appeared to feel she had let
her children and her mother down. While Petitioner had told Eshman she believed her use of prescription drugs contributed to her misconduct, Eshman testified she did not try to use that as an excuse for her misconduct. (Tr. 790-91, 808).
Petitioner returned to the community in 1998 after she was released from custody. (Tr. 793). Petitioner focused on her children. (Tr. 796). Both were very successful students at the Community School and continued to enjoy academic success. (Tr. 798-99, 801-802). In Eshman's opinion, Petitioner had a lot to do with the way her children turned out. (Tr. 803).
Eshman described Petitioner as a loving mother, truthful, honest, hard-working, extraordinarily bright, and a very fine person. Petitioner had always been honest in her dealings with Eshman. He testified she was loved and respected in the community. (Tr. 803-804).
The only attorney with whom Eshman had discussed Petitioner's reputation was his wife. (Tr. 807). Eshman's wife regarded Petitioner very highly, as truthful, honest and very smart. (Tr. 809-10).
Cynthia Jane Woolley
Woolley is an attorney, with her own practice in Ketchum, Idaho. (Tr. 812-14, 817). Woolley met Petitioner in 2000. She knew about Petitioner's misconduct. Although Petitioner told Woolley her medication had induced a bipolar mania, Petitioner did not seem to Woolley to be using her health as an excuse for her misconduct. Woolley testified Petitioner took responsibility for her conduct and understood its seriousness. (Tr. 819-22, 833).
Woolley testified Petitioner was honest in her dealings with Woolley. Petitioner had a good reputation in the legal community and community in general for truthfulness and veracity. (Tr. 827). Woolley's discussions with other attorneys about Petitioner's specific reputation for truthfulness and veracity, as opposed to the quality of her work, were limited. Woolley had not
heard anything negative about Petitioner's reputation for truthfulness and veracity from any Idaho attorneys. (Tr. 829-31). Woolley testified, if admitted, Petitioner would be an upstanding member of the Idaho Bar. (Tr. 827).
David H. Leroy
Leroy is an attorney practicing law in Idaho since the early 1970's. He has held a number of elected offices in Idaho, i.e., Ada County Prosecutor, Attorney General, and Lieutenant Governor. (Tr. 855-62). Leroy has practiced law full time since 1986. (Tr. 862-63).
Leroy knew of Petitioner's conviction and disbarment. (Tr. 874-75). Petitioner told Leroy she had psychological issues and respiratory problems, for which she had taken prescription medication. He understood the combination of her conditions caused Petitioner to abuse the prescription medication, leading to an exacerbation of her conditions, which occurred contemporaneously with her misconduct. Leroy testified Petitioner did not use health issues to excuse her misconduct, but he understood there was a relation between the two. (Tr. 876-77).
Leroy testified Petitioner had never been dishonest in her dealings with him and had never given him any reason to question her truthfulness and veracity. Petitioner appeared remorseful about her past conduct. (Tr. 881-84).
Leroy discussed Petitioner's circumstances with a number of Idaho attorneys. Most of those discussions were general and not specifically about Petitioner's truthfulness and veracity. Leroy never heard anything negative about Petitioner from any Idaho attorney. Leroy testified Petitioner had established a reputation for being truthful, honest, straightforward and professionally competent. Leroy had not spoken with Illinois attorneys about Petitioner. (Tr. 881-84, 888-90).
Thomas G. Walker
Walker is an attorney who was admitted to the Idaho Bar in 1976. He has practiced law in Idaho since that time, but for a period of about a year during which he obtained an LL.M degree in taxation. (Pet. Ex. 2 at 8-9). As described above, Walker met Petitioner after noting the quality of her work in the divorce case she worked on for David Leroy.
From speaking with other Idaho attorneys, Walker believed Petitioner had a good reputation in Idaho for truthfulness and veracity. No one who knew her ever said anything negative about her character to Walker. (Pet. Ex. 2 at 30-31).
Walker knew Petitioner had been in prison for over-billing by several hundred thousand dollars. (Pet. Ex. 2 at 46-47). To Walker, Petitioner seemed remorseful. (Pet. Ex. 2 at 17-18).
Theodore James Fairchild
Petitioner's son, Jimmy, testified his mother had a great reputation for truthfulness and veracity in the Sun Valley community. (Tr. 843, 852-53).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
An attorney who has been disbarred and seeks to be reinstated to the practice of law has the burden of proving he or she should be reinstated. In re Parker, 149 Ill. 2d 222, 232, 595 N.E.2d 549 (1992). The primary issues in a reinstatement case involve the petitioner's rehabilitation and present good character; the petitioner's current knowledge of the law is also considered. S. Ct. R. 767(f); In re Fleischman, 135 Ill. 2d 488, 496, 553 N.E.2d 352 (1990). The ultimate decision on whether a petitioner should be reinstated is made by the Supreme Court. In re Zahn, 82 Ill. 2d 489, 494, 413 N.E.2d 421 (1980). Our role is to serve as trier of fact and make a recommendation to the Court based on our appraisal of the facts. Parker, 149 Ill. 2d at 233.
In making that recommendation, Supreme Court Rule 767(f) directs us to consider the following and such other factors as we deem appropriate:
the nature of the misconduct for which the petitioner was disciplined;
the maturity and experience of the petitioner when discipline was imposed;
whether the petitioner recognizes the nature and seriousness of his or her misconduct;
if applicable, whether the petitioner has made restitution;
the conduct of the petitioner since discipline was imposed;
the candor and forthrightness of the petitioner in presenting evidence in support of the petition.
In re Martinez-Fraticelli, 221 Ill. 2d 255, 270-71, 850 N.E.2d 155 (2006).
The petitioner must meet the burden of showing by clear and convincing evidence he or she should be reinstated. S. Ct. R. 767(h); In re Richman, 191 Ill. 2d 238, 244, 730 N.E.2d 45 (2000). This standard of proof requires more than just a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995). Thus, reinstatement is not allowed if rehabilitation is simply shown to be more probable than not. In re Anglin, 122 Ill. 2d 531, 539, 524 N.E.2d 550 (1988). Rather, clear and convincing evidence is proof which, considering all the evidence, produces a firm and abiding belief it is highly probable the proposition at issue is true. Cleary & Graham's Handbook of Illinois Evidence, sec.301.6 (9th ed. 2009). There is no presumption in favor of reinstatement, and the passage of time since disbarment is not enough to warrant reinstatement. Richman, 191 Ill. 2d at 247-48.
Nature of the Misconduct for Which Petitioner was Disbarred
The seriousness of the misconduct leading to disbarment is obviously an important consideration, which cannot be minimized by subsequent good conduct. Richman, 191 Ill. 2d at 245. Some infractions are so serious as to preclude reinstatement entirely. In re Alexander, 128
Ill. 2d 524, 538, 539 N.E.2d 1260 (1989). However, an attorney disbarred due to conduct which resulted in a conviction for serious crimes can be reinstated, provided the attorney proves rehabilitation by clear and convincing evidence. Martinez-Fraticelli, 221 Ill. 2d at 270; In re Keane, 102 Ill. 2d 397, 466 N.E.2d 208 (1984).
Petitioner engaged in extremely serious misconduct. The severity of the misconduct is apparent in both its nature and its extent.
While a partner at a law firm, Petitioner submitted false information to her firm concerning the hours she worked. In reliance on the false information Petitioner provided, the firm sent bills to its clients. Because the information Petitioner provided was false, the firm unknowingly billed, and its clients unwittingly paid, grossly inflated amounts. In addition, Petitioner submitted requests to the firm for reimbursement of expenses she falsely claimed were business related when these expenses were for strictly personal matters. The breadth and duration of Petitioner's misconduct significantly exacerbates its already serious character. The fraudulent time records Petitioner submitted caused the firm to issue $800,000 in false bills to clients. In addition, Petitioner fraudulently obtained reimbursement of $50,000 in personal expenses. This is not a simple case of over-billing but an extremely egregious situation involving numerous instances of fraudulent behavior extending over a period exceeding three years. In re Walsh, 94 CH 653, M.R. 16705 (June 30, 2000).
Misconduct involving attorney billing is very serious, particularly given the skepticism with which the public views fees charged by attorneys. In re Wick, 05 CH 66, M.R. 23942 (Sept. 22, 2010). Falsely seeking reimbursement for personal expenses is also serious misconduct. Wick, 05 CH 66 (Review Bd. at 15). Trust is at the core of the attorney-client relationship; misconduct which undermines that trust is particularly reprehensible. In re Polito,
132 Ill. 2d 294, 301, 547 N.E.2d 465 (1989). Petitioner's misconduct certainly undermined that trust and clearly falls within this category.
The gravity of attorney misconduct involves both the harm and the unreasonable risk of harm resulting from the misconduct. In re Gorecki, 208 Ill. 2d 350, 364-65, 802 N.E.2d 1194 (2003). Petitioner's misconduct caused serious harm to her clients and the law firm by which she was employed. Walsh, 94 CH 653 (Hearing Bd. at 21). The harm to clients in being over-billed by hundreds of thousands of dollars is obvious. The magnitude of Petitioner's misconduct also created a significant risk of destroying or seriously impairing her law firm. Chapman and Cutler retained its major clients despite the enormity of Petitioners' misconduct by a massive and very costly effort to reimburse its clients and rehabilitate its credibility with them. The fact the firm was able to successfully navigate this situation is a testament to the high level of satisfaction its major clients had with its work product and the firm's genuine endeavor to compensate its clients for any losses they may have incurred due to Petitioner's misconduct.
We are mindful of Petitioner's position concerning the impact of prescription medication on her mental state. However, in relation to the nature of her misconduct, Petitioner is not free to relitigate issues which have been resolved against her in prior proceedings in which the exact same conduct was addressed, and we will not do so here. In re Wigoda, 77 Ill. 2d 154, 160, 395 N.E.2d 571 (1979). Moreover, as noted above, Petitioner admitted to Dr. Henry she had intentionally, and with premeditation, acted to conceal her failure to perform work. (Tr. 283-84).
The finding of guilt in the criminal proceedings is binding. Supreme Court Rule 761(f); In re Mandell, 89 Ill. 2d 14, 22, 431 N.E.2d 382 (1982). In these reinstatement proceedings, it is also presumed Petitioner committed the misconduct for which she was disbarred. Martinez-Fraticelli, 221 Ill. 2d at 280.
Petitioner contends her mental state at the time of her misconduct is relevant, despite the prior determinations, because it tends to mitigate the nature of her misconduct. However, we are not at liberty to reevaluate the factual findings in Petitioner's underlying disciplinary case. See In re Kesler, 89 Ill. 2d 151, 154, 433 N.E.2d 643 (1982). In the disciplinary proceedings which resulted in her disbarment, the Hearing Board majority found Petitioner perpetrated "a calculated and concealed plan of dishonesty, fraud, and deceit." Walsh, 94 CH 653 (Hearing Bd. at 21). The dissent, while giving greater weight to the finding of diminished mental capacity in the criminal case, characterized Petitioner's conduct as "dishonest, deceitful and egregious." Walsh, 94 CH 653 (Hearing Bd. at 29) The Review Board, which considered her mental state mitigating, nonetheless described Petitioner's misconduct as "flagrant and appalling." Walsh, 94 CH 653 (Review Bd. at 19). Despite the Review Board's recommendation of a less severe sanction, the Supreme Court determined Petitioner's misconduct was so serious as to warrant disbarment. Walsh, M.R. 16705.
We also do not ignore the observations of Judge Norgle in sentencing Petitioner in the criminal case. The parties presented, and Judge Norgle considered, extensive evidence concerning Petitioner's mental state. After considering the evidence, Judge Norgle found Petitioner acted with diminished mental capacity. Despite this finding, Judge Norgle specifically concluded Petitioner's condition was not the cause of her crimes.
Even if we were free to reassess Petitioner's mental state at the time of her misconduct, we find no basis on which to negate the conclusion reached in the prior proceedings, i.e., Petitioner possessed sufficient mental capacity to be responsible for her actions. For the same reasons, we do not consider Petitioner's misconduct any less serious given the evidence presented in these reinstatement proceedings.
There are limited contemporaneous accounts of Petitioner's misconduct. All of the experts based their opinions on hindsight and an effort to reconstruct Petitioner's past condition. Petitioner professes limited or no memory of the events involved in her misconduct at the time they were perpetrated by her. We do not find it credible, though, that she would be wholly incapable of remembering any of those events which occurred throughout a period of more than three years. Justice O'Brien's credible testimony shows Petitioner behaved erratically during part of the relevant time period. However, Justice O'Brien did not observe, and her testimony did not address, Petitioner's behavior at work. Other evidence, including the persons interviewed by Dr. Meltzer, similarly addresses only part of the relevant time period and/or only Petitioner's behavior outside of work.
Harry Lamberson was in the unique position of having observed Petitioner's work during the time of her misconduct. Lamberson, whose office was adjacent to Petitioner's and had worked with her, testified he never observed Petitioner acting as if she were incapacitated or impaired. Lamberson had evaluated Petitioner's work; he always rated her performance well. Lamberson testified clients were extremely satisfied with Petitioner's work. Lamberson also testified she responded promptly whenever he left a message for her when she was absent from the office.
The conduct to which Petitioner pled guilty included allegations she falsely reconstructed billing records and directed subordinates to assist her in doing so, lied to a federal court concerning a billing issue, and directed funds collected on the basis of her fraudulent billing be applied to fictitious files. Dr. Henry's descriptions of Petitioner's statements to him, in both his testimony and report, likewise demonstrate Petitioner knew, at least some of the time, she was
engaging in improper behavior and deliberately endeavored to, and did, over a long period of time, successfully conceal her misconduct.
The circumstances as a whole demonstrate Petitioner was aware her conduct was improper, yet continued to engage in misconduct over time. The circumstances also show Petitioner recognized a need to conceal her misconduct and possessed the ability to do so over a prolonged period. Petitioner was able to function at work, in a sufficiently professional manner to maintain a very high job performance level for years. Petitioner's conduct simply was not the conduct of a barely functioning individual only marginally capable of controlling her behavior.
Petitioner's Maturity and Experience
When her misconduct began, Petitioner was in her mid-30's, at which time she had been practicing law for about ten years, and she had risen to the position of partner at a major Chicago law firm. Thus, Petitioner was a person of maturity and experience at the time of her misconduct.
Further, no legal expertise is required to evaluate the propriety of Petitioner's misconduct; anyone old enough to be part of the work force is capable of understanding it is improper to seek to be paid for time one has not spent working or to be reimbursed by one's employer for purely personal expenses. In re Martinez-Fraticelli, 221 Ill. 2d at 275.
Ordinarily, where an attorney is of sufficient age and experience to evaluate the propriety of the original misconduct, this factor weighs against reinstatement. See In re Fleischman, 135 Ill. 2d at 497. The significance of this factor can be lessened where other factors may have clouded the attorney's judgment when the misconduct occurred. In re Parker, 149 Ill. 2d at 234-35. Given the finding in the criminal case of a diminished mental state, we give Petitioner's maturity and experience less weight as a factor against reinstatement than it would otherwise
carry. In doing so, we are simply giving Petitioner the benefit of the doubt. We do not intend to imply any inconsistency with our discussion above as to the seriousness of Petitioner's misconduct.
Petitioner's Recognition of the Nature and Seriousness of her Misconduct
As discussed below, we are troubled by certain aspects of Petitioner's behavior which appear inconsistent with genuine understanding of and remorse for her misconduct. However, we believe Petitioner is sincere in her testimony she is sorry for her past conduct and understands its seriousness. Petitioner has participated in multiple legal proceedings arising out of her conduct and suffered serious consequences as a result of that conduct. At this point, Petitioner would have to have at least an abstract understanding of her misconduct. Her demeanor while testifying as to her remorse appeared to be sincere. Petitioner's witnesses provided credible testimony she was candid with them concerning her misconduct and her expressions of regret for it. Such candor is an indication Petitioner has come to terms with her past conduct and is sincerely working to overcome it.
On the other hand, Petitioner attributes her conduct to the use of prescription medication and its effect on her thinking, behavior, judgment and memory. Given the manner in which she has characterized her mental state over the period of her misconduct, we question whether she genuinely and fully understands the nature and seriousness of her misconduct. We do recognize, though, Petitioner's characterization of the causative factors underlying her behavior and the extent to which she may still profess a mental state inconsistent with guilt does not preclude reinstatement in and of itself. See In re Wigoda, 77 Ill. 2d at 160-61.
Without intending to deprecate the positive aspects of Petitioner's behavior since her misconduct, certain other factors cause us to doubt she is rehabilitated at this time. Some of
these instances might be overlooked if they occurred in isolation. Considered together, these factors evidence an ongoing lack of recognition of the nature and extent of Petitioner's misconduct.
With her initial application for admission to the Idaho Bar in 1995, Petitioner submitted a memorandum in which she did not disclose the pending criminal investigation or provide the true reasons her employment at Chapman and Cutler terminated. Rather, Petitioner asserted she was "under siege" from the firm because she had spoken out against another partner's fraudulent billing practices. This was obviously false and misleading.
In 1999, Petitioner filed a law suit alleging Chapman and Cutler treated her improperly by reporting her conduct to law enforcement officials and the ARDC. However, Petitioner's extensive and egregious conduct clearly warranted such reporting regardless of how the firm may have handled billing issues involving other partners. While she was represented by counsel in the law suit, Petitioner participated in preparing the complaint and reviewed it before it was filed.
We are also concerned by the manner in which the misconduct leading to Petitioner's disbarment and the Illinois disciplinary proceedings are characterized in Petitioner's 2005 and 2007 applications for admission to the Idaho Bar. Although represented by counsel in connection with those applications, she was actively involved in preparing at least some of the supporting documents, including the correspondence which accompanied the 2005 application.
In expressing these concerns, we do not intend to deter vigorous legitimate advocacy. The point is not whether we agree with Petitioner's expressed positions. Cf. In re Grosky, 96 CH 624, M.R. 15043 (Sept. 28, 1998). Rather, the documents which cause us concern, particularly considered together, mischaracterize Petitioner's misconduct and the facts of the disciplinary
proceedings. Thus, the documents and pleadings were misleading and not within the proper bounds of zealous advocacy. Further, these documents and pleadings are inconsistent with a mental state which, while maintaining innocence, fully accepts the nature and extent of Petitioner's misconduct.
Correspondence accompanying Petitioner's 2005 and 2007 Idaho Bar applications asserts the criminal charges against Petitioner were principally based on the failure of invoices sent by Chapman and Cutler to be adequately supported by Petitioner's timesheets. This seriously fails to describe Petitioner's misconduct. The correspondence also states Petitioner did not receive any of the funds collected from clients as a result of her inflated billings, without acknowledging Petitioner fraudulently obtained $50,000 as expense reimbursements. This suggests Petitioner received nothing from her misconduct, an enormously misleading impression given the facts of the case.
The correspondence accompanying Petitioner's 2005 and 2007 applications to the Idaho Bar also asserts Petitioner was denied due process in the Illinois disciplinary proceedings because she was prevented from presenting evidence to support her position regarding the impact of her psychological condition on her conduct. The letter accompanying the 2007 application states the decision to exclude medical evidence was made during prehearing proceedings which occurred while Petitioner was in custody. This argument implies Petitioner was precluded from contesting the issue because she was incarcerated. However, at the time, she was represented by legal counsel, who participated in the prehearing proceedings and represented her interests in those proceedings.
These statements must be considered in light of the facts of Petitioner's matter. Again, our concern is the misleading nature of the statements, not the fact Petitioner raised a due process
argument with which we may, or may not, disagree. Grosky, 96 CH 624 (Review Bd. at 10-11). Petitioner testified she no longer believes she was denied due process, this testimony does not obviate the fact her correspondence to the Idaho Bar was misleading in its description of the facts of the disciplinary proceeding.
In the proceedings leading to her disbarment, including the prehearing proceedings, Petitioner was represented by counsel. Dr. Meltzer was not permitted to testify at the hearing because he had not been deposed. Petitioner had the opportunity to present Dr. Meltzer for a deposition; he was not deposed because Petitioner's counsel repeatedly stated he did not intend to call Dr. Meltzer as a witness. Walsh, 94 CH 653 (Review Bd. at 2-4, 12-15).
Due process is satisfied when an attorney receives fair notice of the charges and an opportunity to explain and defend against those charges. In re North, 02 RC 1503, M.R. 18078 (Sept. 24, 2004). Consequently, by failing to disclose the circumstances behind the exclusion of Dr. Meltzer's testimony, and asserting she had been denied due process by reason of such exclusion, the correspondence accompanying Petitioner's 2005 and 2007 bar applications is misleading.
Rehabilitation is the primary concern in a reinstatement case. In re Fleischman, 135 Ill. 2d at 496. To us, genuine rehabilitation would presuppose an increasing recognition of the underlying misconduct and the nature of the proceedings leading to discipline. If anything, Petitioner's ongoing efforts to be admitted to the Idaho Bar suggest just the opposite and continue attempting to deflect blame from Petitioner onto others.
In general, Petitioner has made sincere efforts at rehabilitation. A failure, though, in a specific crucial area can be grounds to deny reinstatement. In re Anglin, 122 Ill. 2d at 539, . It is
the Petitioner's burden to prove, by clear and convincing evidence, she is rehabilitated. In re Richman, 191 Ill. 2d at 248. We do not believe she has done so at this time.
Whether Petitioner has Made Restitution
Petitioner paid the $50,000 in restitution ordered as part of the sentence in her criminal case. While it took Petitioner longer to do so than the sentencing order contemplated, Petitioner presented evidence of limited financial resources during the time. Therefore, and as Petitioner completed payment of the amount ordered in the criminal case before she sought reinstatement, we do not regard the delay as a factor against reinstatement.3
We accept the testimony of Petitioner and Roark, the attorney who represented her at the time, as to the reasons for the motion seeking discharge of Petitioner's obligation to pay further restitution. Given all the circumstances, including the apparent refusal of Chapman and Cutler to respond to McCoy's requests for information regarding disbursement of Petitioner's capital account, we consider the motion to have been made in good faith.
Typically, restitution is ordered based on either an improper benefit to the disbarred attorney or a loss to a victim. In re Fleischman, 135 Ill. 2d at 497-98.
Petitioner received an improper benefit, specifically the personal expenses for which she was reimbursed based on her false representations the expenses were work-related. Restitution for those expenses is clearly proper. Id., at 497. In the federal court proceedings, those expenses were determined to total $50,000. We have not been presented with evidence establishing anything to the contrary.
That Petitioner paid the $50,000 in full before seeking reinstatement is not a mere token, either absolutely or in light of the amount Petitioner improperly received. Compare In re Berkley, 96 Ill. 2d 404, 412-13, 451 N.E.2d 848 (1983). Further, payment of the amount of
restitution determined by a court should normally suffice. In re Alexander, 97 RT 3002, M.R. 13340 (Mar. 23, 1999). We also note Chapman and Cutler never asked Petitioner for any further payments. See Alexander, 97 RT 3002 (Review Bd. at 15).
The Administrator contends additional restitution was warranted beyond $50,000. While an attorney seeking reinstatement has the burden of proof, including the burden of proving restitution has been made or is impossible, Berkley, 96 Ill. 2d at 410, 412, Petitioner paid in full the restitution the court ordered her to pay. As the Administrator now seeks a different amount, he must present evidence to establish that amount. Fleischman, 135 Ill. 2d at 498.
Restitution is not properly required unless there is a clear basis for doing so, based on either the attorney's improper gain or the loss to the victim. In re Maciasz, 06 CH 80, M.R. 23960 (Sept. 22, 2010) (Hearing Bd. at 53). Restitution cannot be required based on guesswork. In re Kampenga, 93 CH 319, M.R. 9286 (Sept. 23, 1994).
Despite the Administrator's contrary arguments, we cannot say Petitioner's salary during the period of her misconduct was an improper benefit. Petitioner performed some work during this period, her work was satisfactory to her clients and her firm, and we do not have evidence of what, if any, salary and benefits were attributable to time off work without leave.
Petitioner's over-billing and fraudulently obtained expenses significantly exceeded $50,000. Moreover, while she did not directly receive the amounts she over-billed, her income from her firm must have been linked to her billings, although to what extent isn't clear from the evidence.
In terms of loss to the victim, clients who were over-billed suffered a loss, but their loss was reimbursed by Chapman and Cutler. Chapman and Cutler's refunds of amounts received
from clients based on fraudulent billing were not a loss to the firm, as Chapman and Cutler did not have a legitimate right to keep that money.
The only clear determination concerning the amount of restitution and the amount of loss resulting from Petitioner's misconduct is that made by the federal court. As Petitioner was disbarred based on her conviction for federal crimes and, in the criminal proceeding, the federal court determined the amount of the loss caused by Petitioner's conduct and the applicability of restitution based on precisely the same conduct, we believe it is reasonable for us to rely on the federal court's conclusions on that issue. Cf. In re Parker, 149 Ill. 2d at 236.
As noted above, Petitioner made restitution in the amount set by the federal court. The federal court also determined the loss caused by Petitioner's misconduct was $800,000. This is the only precise determination of the amount of loss caused by Petitioner's misconduct.
On this record, everything else is speculative. Chapman and Cutler did not determine a precise amount Petitioner had over-billed. Even the amount of reimbursement is not clearly established. McIlroy estimated Chapman and Cutler reimbursed its clients approximately $2.3 million. In the disciplinary proceedings, Lamberson testified Chapman and Cutler refunded over $1.27 million to Harris Bank and Winston and Strawn. This is a significant gap, although it appears Lamberson's testimony did not include all the clients who were reimbursed. In addition, the amount the firm refunded was not necessarily the same as the amount attributable to over-billing by Petitioner. McIlroy was admittedly generous in determining the amount to refund in order to mollify clients (albeit understandably so). Some of the refunds also included fees for work actually performed by Petitioner and other attorneys.
We conclude Petitioner's payment of the amount of restitution ordered in the federal court proceedings constitutes full restitution, given all the circumstances of this case. She can hardly be faulted for not making restitution of amounts she was not ordered to repay.
Petitioner's Conduct Since Discipline was Imposed
Since her conviction, sentence, and disbarment, Petitioner has truly made a new life for herself and her children. The success of Petitioner's children, after significant upheaval during their earlier years, is a testament to Petitioner's sincere efforts to be a good parent and to provide her children with continuity and support.
Petitioner met the basic requirements of serving her sentence, successfully completing probation, and paying restitution as ordered by the court. Petitioner also paid the costs assessed in connection with the disciplinary proceedings and has maintained employment.
Petitioner's character witnesses, each of whom, we believe, testified sincerely, included an Illinois Appellate Court Justice, a former Idaho Attorney General and Lieutenant Governor, and other prominent members of the legal and business communities in Idaho. We accept the testimony concerning Petitioner's good reputation in Idaho as relevant; she has lived and worked in Idaho for years and intends to continue doing so. See In re Oliver, 95 CH 681, M.R. 11753 (Sept. 25, 1998).
Many of Petitioner's witnesses traveled from Idaho to testify on Petitioner's behalf. All of Petitioner's character witnesses were aware of her misconduct. Compare In re Rotman, 136 Ill. 2d 401, 419, 556 N.E.2d 243 (1990).
Knowledge of the current state of the law is one of the elements a person seeking reinstatement must show. We find Petitioner is very knowledgeable about the current state of the law. In re Parker, 149 Ill. 2d at 233.
A petitioner seeking reinstatement must re-establish his or her good moral character and fitness to practice law; honesty is an important element of these qualities. In re Polito, 132 Ill. 2d at 303. In addition to the statements discussed above in Petitioner's Idaho Bar applications, there are two points which cause us concern in this area.
Petitioner described herself as a "research attorney" on an application for a car loan. This is clearly incorrect and improper. This alone would not prevent reinstatement, but is a negative factor. Parker, 149 Ill. 2d at 238.
Far more troubling is the affidavit Petitioner signed to support the fee petition filed in the Fullerton v. Griswold case. While Petitioner was not present when the judge explained the information he was seeking in the affidavit, the context of the affidavit and the information it did provide should have put a reasonable person on notice the affiant's actual status was relevant. Petitioner knew the affidavit was being used in a court proceeding and would be filed with the court. This affidavit, in which Petitioner's academic background was discussed, skillfully (and, we think, disingenuously) sidestepped her status as an attorney and the fact of her disbarment. Essentially, it said everything but the fact Petitioner had been disbarred. While we do not impute Aanestad's knowledge to Petitioner, the language of the affidavit causes us to conclude she should have disclosed in the affidavit the actual status of her law license and the fact of her disbarment. Prior to testifying, a witness swears to tell "the truth, the whole truth, and nothing but the truth." In this instance, Petitioner told the truth and nothing but the truth, but omitted the whole truth, and she should have known better.
Petitioner's Candor and Forthrightness in Presenting Evidence to Support Reinstatement
In testifying at the hearing, Petitioner impressed us as sincere. This is true even though there are certain areas of her testimony, particularly involving the affidavit for the Fullerton case
and other aspects discussed above, which cause us to have doubts concerning her credibility. As the trier of fact, we can legitimately believe some aspects of the testimony of a witness and disbelieve other aspects of the same person's testimony; this principle applies equally to the testimony of an attorney seeking reinstatement. See Martinez-Fraticelli, 221 Ill. 2d at 278-80
We have considered the cases cited by the parties in support of their respective positions. Each of the cases cited by the parties has significant distinguishing characteristics and none of those cases compels any specific result here. The cases cited, though, do provide guidance for our recommendation in this case.
The cited cases demonstrate disbarred attorneys can be reinstated despite having engaged in very serious misconduct, which has resulted in a criminal conviction. Martinez-Fraticelli, 221 Ill. 2d 255; Alexander, 97 RT 3002. In some of the cases in which the attorney was reinstated, the misconduct, while very serious, was more finite in duration or frequency than Petitioner's. Wigoda, 77 Ill. 2d 154; In re Jones, 95 CH 8, M.R. 10887 (Nov. 26, 1996). However, even attorneys who have engaged in prolonged and extensive schemes have been reinstated, Martinez-Fraticelli, 221 Ill. 2d 255, although in some such cases, the attorney has not been the primary architect of the fraudulent scheme. In re McClurkin, 06 RT 3006, M.R. 21325 (Mar. 16, 2010).
In cases in which reinstatement was warranted, the attorneys clearly demonstrated an understanding of the nature and seriousness of their misconduct. Alexander, 97 RT 3002 (Review Bd. at 14); Jones, 95 CH 8 (Review Bd. at 10). Attorneys who were reinstated despite continued assertions of innocence had very clearly established rehabilitation and a profound understanding of the seriousness of the misconduct leading to the conviction and disbarment. Wigoda, 77 Ill. 2d at 164. Some attorneys were ultimately reinstated despite prior unsuccessful
attempts, particularly if the attorney had attended to previously unresolved matters, such as completing restitution. McClurkin, 06 RT 3006; Alexander, 97 RT 3002. Other attorneys had done extensive volunteer work. In re Sitter, 95 CH 380, M.R. 11353 (Jan. 23, 1996).
In other cases, reinstatement was denied. The seriousness of the underlying misconduct is often an important factor in such cases. In re Richman, 191 Ill. 2d 238, 730 N.E.2d 45 (2000); In re Rothenberg, 108 Ill. 2d 313, 484 N.E.2d 289 (1985); In re Alexander, 128 Ill. 2d 524, 539 N.E.2d 1260 (1989). Some misconduct is so extensive and serious as to forever preclude reinstatement. Richman, 191 Ill. 2d at 247-48. The attorney's conduct after disbarment is significant, particularly if there is any additional misconduct. In re Abdullah, 06 RT 3003, M.R. 21149 (Sept. 16, 2008). It is also critical whether the attorney genuinely recognizes the nature and seriousness of the underlying misconduct. In re Polito, 132 Ill. 2d 294, 547 N.E.2d 465 (1989).
Each reinstatement case is unique and must be evaluated based on its own particular circumstances. In re Parker, 149 Ill. 2d 222, 233, 595 N.E.2d 549 (1992). The burden of proof, by clear and convincing evidence, rests solidly on the attorney seeking reinstatement. In re Berkley, 96 Ill. 2d 404, 410, 451 N.E.2d 848 (1983).
We do not intend to detract from Petitioner's genuine and sincere efforts at rehabilitation. She has come a very long way, as is apparent from the testimony of her character witnesses. We are also convinced, based on the medical evidence, her prior health issues are unlikely to recur and she does not have current health issues which would impair her ability to practice law.
Among the things we must consider in evaluating Petitioner's request to be reinstated is the impact of her conduct on the legal profession, the public and the administration of justice. Martinez-Fraticelli, 221 Ill. 2d at 271. Petitioner's misconduct was of enormous proportions. To
allow Petitioner to be reinstated at this time would deprecate the seriousness of her misconduct and significantly devalue the importance of restoring the confidence of the public in the legal profession, and in the administration of justice. Alexander, 128 Ill. 2d at 539.
After having carefully considered the evidence and law, we conclude, while Petitioner has fulfilled some of the requirements necessary for reinstatement, she has not fully met her heavy burden of proof at this time. Therefore, we recommend reinstatement be denied.
Date Entered: October 20, 2011
|Michael C. Greenfield, Chair, with Tiffany M. Ferguson and David A. Dattilo, Hearing Panel Members.|
1 Gary Fairchild, to whom Petitioner was married at the time, was found to have embezzled money from Winston and Strawn. (Tr. 95-96). He was disbarred on consent. In re Fairchild, 94 CH 607, M.R. 10515 (Nov. 30, 1994).
2 Petitioner filed a motion in limine in the reinstatement proceedings seeking to bar the Administrator from arguing the amount by which Petitioner over-billed Chapman and Cutler clients and the amount of restitution due exceeded the amounts determined in the criminal case. This Motion was fully briefed and denied.
3 Although Petitioner's children attended an expensive private school, a substantial portion of their tuition was paid by others, particularly Petitioner's mother. Further, Petitioner fully paid the restitution ordered in her criminal case before seeking reinstatement. Compare In re Schechet, 105 Ill. 2d 516, 524, 475 N.E.2d 828 (1985).