BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 2011PR00024
FILED - April 7, 2011
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Lea S. Black, pursuant to Supreme Court Rule 753(b), complains of Respondent, Donald Dale Gardiner, who was licensed to practice law in the State of Illinois on May 9, 2002, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:
(Intimidation of Karen and Mark Hendrix)
1. Between January 2006, and June 2007, Respondent was employed in a dual capacity for the United States Army. During the week, Respondent worked as a civilian employee for the Department of the Army as a staff operations and training specialist, and was assigned to work under the command of Brigadier General Mark Hendrix in Homewood, Illinois. On the weekends, Respondent was a Major in the Army Reserves in 2006, and in 2007 he was promoted to Lieutenant Colonel.
2. At all times alleged in this complaint, General Hendrix resided in Missouri, but commuted to Illinois to command a group of Army Reserves in Homewood.
3. In June 2007, General Hendrix declined to promote Respondent to the position of supervisory staff administrator, and, as a result, Respondent resigned his position under General Hendrix’s command to accept a position in another unit. After accepting the position in another unit, acquaintances of Respondent informed him that General Hendrix had spoken negatively of Respondent by denigrating his work performance and work ethic. Those rumors angered Respondent and caused him to resent General Hendrix.
4. In October 2007, artwork and items of a personal nature were stolen from General Hendrix’s office in Homewood, including a writing award General Hendrix received from the U.S. Army War College ("AWC"). Respondent became aware of the theft of items from General Hendrix’s office at or about the time of the theft.
5. At all times alleged in this complaint, there was in effect a criminal statute in Illinois, 720 ILCS 5/12-6, which provided, in part:
Intimidation. (a) A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another, whether in person, by telephone, or by mail, a threat to perform without lawful authority any of the following acts:
(1) inflict physical harm on the person threatened or any other person or on property; or
(5) expose any person to hatred, contempt or ridicule.
6. At all times alleged in this complaint, there was in effect a criminal statute in Missouri, 565.090, which provided, in part:
Harassment. A person commits the crime of harassment if he or she:
(1) Knowingly communicates a threat to commit any felony to another person and in so doing frightens, intimidates, or causes emotional distress to such other person; or
(2) When communicating with another person, knowingly uses coarse language offensive to one of average sensibility and thereby puts such person in reasonable apprehension of offensive physical contact or harm; or
(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.
7. At all times alleged in this complaint, there was in effect a criminal statute, Uniform Code of Military Justice Article 133, which provided "conduct unbecoming of an officer and a gentleman. Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."
8. On June 6, 2009, Respondent mailed an envelope which was postmarked in Bedford Park, Illinois, and addressed to General Hendrix’s wife, Karen at the Hendrixes’ home in Missouri. The envelope contained a photocopy of a page from the 2003 yearbook of the AWC, which referenced General Hendrix as the recipient of an AWC Writing Award. Respondent handwrote on the page, "Ask your little bitch if he is missing something."
9. Respondent intended for Karen and General Hendrix to feel intimidated by his June 6, 2009 mailing. Respondent knew that his June 6, 2009 mailing would reasonably cause Karen and Mark Hendrix to feel intimidated.
10. Both Karen and General Hendrix felt intimidated and threatened by the anonymous letter, which used an epithet to refer to General Hendrix and referenced an item the theft that had occurred two years earlier. The reference to the theft placed the Hendrixes in fear that the person who had sent the June 6, 2009 letter had also committed the theft, and that that person now knew where they lived and could break into their house.
11. On August 14, 2009, Respondent mailed an envelope which was postmarked in St. Louis, Missouri, and was addressed to General Hendrix. The envelope contained a photocopy of a group photo of the members of General Hendrix’s army strategic leader development basic course. Respondent circled and crossed out General Hendrix’s face in the photo and handwrote the words "your [sic] next" connected by a line to the photo. Respondent intended the words "your [sic] next" written next to the photo of General Hendrix, coupled with the June 6, 2009 letter referencing an item missing from General Hendrix’s office, to insinuate that General Hendrix, like the award, would disappear.
12. Respondent intended for Karen and General Hendrix to feel intimidated by Respondent’s act of crossing out Mark Hendrix face in the photo and writing "your [sic] next." Respondent knew that his August 14, 2009 mailing would reasonably cause Karen and General Hendrix to fell intimidated.
13. Both Karen and General Hendrix felt intimidated and threatened by the anonymous letter, photo and the words "your [sic] next" in the August 14, 2009, mailing. Furthermore, since the Hendrixes lived in Missouri, the Hendrixes were alarmed by the fact that the August 14, 2009, envelope had been postmarked in Missouri.
14. As a result of Respondent’s conduct as described in paragraphs eight and 11, above, Respondent resigned from the Army Reserves in lieu of being criminally prosecuted by a general court martial, and he received an other than honorable discharge.
15. As a result of the conduct set forth above, Respondent has engaged in the following misconduct:
committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, by committing intimidation in violation of 720 ILCS 5/12-6;
committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, by committing harassment in violation of 565.090 of the Missouri criminal code;
committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, by committing conduct unbecoming of an officer and a gentleman in violation of UCMJ Article 133; and
conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.
WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.
|Lea S. Black
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601-6219
Telephone: (312) 565-2600