Filed December 28, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
KENNETH ALAN GOLDMAN,
Commission No. 2010PR00028
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on June 21, 22 and 23, 2011, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Hearing Board Panel consisting of Michael C. Greenfield, Chair, Mark D. Manetti and Fran McConnell Williams. Tracy L. Kepler appeared on behalf of the Administrator of the ARDC. Respondent appeared and was represented by Thomas P. McGarry.
On March 19, 2010, the Administrator filed a one-count Complaint pursuant to Supreme Court Rule 753 and 761 alleging Respondent was convicted in the state of Colorado of obscenity and engaging in criminal conduct involving internet sexual exploitation of a child. Respondent filed an Answer to the Complaint, admitting some of the factual allegations, denying some of the factual allegations, and denying all allegations of misconduct.
The Administrator presented the testimony of one witness, and Administrator's exhibits 1-8, which were admitted into evidence. Respondent testified on his own behalf, presented eight witnesses, and Respondent's exhibits 1-10, and 16, which were admitted into evidence.
On January 15, 2009, a five-count criminal complaint and information was filed against Respondent in the district court of Douglas County, Colorado. The People of the State of Colorado v. Kenneth A. Goldman, No. 09 CR 28. The complaint alleged between October 2008 and January 2009, Respondent had sexually explicit internet conversations (chats) with, and sent obscene materials to, "Amy Girl." Amy Girl was identified to Respondent as a 12 year old girl, but was actually an adult, Detective Shawn Cronce.
Count 1 of the criminal complaint alleged Respondent committed the offenses of internet sexual exploitation of a child, a felony, when he "importuned, invited or enticed Detective Shawn Cronce, AKA ĎAmy Girl' posing as a child under fifteen years of age, to observe Respondent's intimate parts while communicating with Respondent via a computer network or system."
On November 10, 2009, on the State's motion, the court dismissed Counts 2 through 5 of the complaint, and allowed the State's motion to add an additional count of obscenity-wholesale promotion, a misdemeanor. Respondent pled guilty to one count of internet sexual exploitation of a child, a felony, and one count of obscenity-wholesale promotion.
Also on November 10, 2009, the court entered a sentence order which approved the parties' stipulation for a deferred judgment and sentence on the felony count. Pursuant to the stipulation, under Colorado law the entry of judgment of conviction was deferred for four years,
during which Respondent would be placed under the supervision of the probation department and required to meet certain conditions. The conditions included payment of $8,350.43 in fines and costs; attendance, participation in and successful completion of a sex offender treatment program and all recommended conditions and aftercare; and no contact with any child under the age of 18, unless approved by the probation department and treatment provider. Following the successful completion of the four year period of probation, Respondent would be allowed to withdraw his guilty plea and the felony charge would be dismissed. Regarding the misdemeanor charge, the court sentenced Respondent to probation to run concurrently with the deferred judgment. Under an arrangement between the two probation departments, Respondent's probation was monitored by the Cook County, Illinois, Probation Department in order to permit him to return to his home.
Kelli Underwood L.S.W.
Kelli Underwood is a licensed clinical social worker who has worked at the Center for Contextual Change for 13 years. The Center specializes in helping people heal from trauma, abuse and violence. It treats survivors of violence and perpetrators of violence. (Tr. 41-42, 45-46; Resp. Ex. 3). Respondent began going to the Center in March 2010, as part of his probation, and became one of Underwood's clients in April 2010. She sees Respondent weekly in group sessions and one or two times per month in individual sessions. Until recently, Respondent saw Joe Falco, also a therapist at the Center, for individual therapy. In the preceding 15 months, Respondent missed less than six sessions. On some occasions, as an Orthodox Jew, when Respondent could not ride in a car for religious reasons, he would walk for one and one-half to two hours to get to the sessions. (Tr. 41-43, 51-52, 87-90).
Respondent's therapy involves what Underwood described as "understanding his offending cycle," the day-to-day negative behavior cycles contributing to his sexual addiction, and the effect his addiction has had on his victims and the people in his life. It also involves developing a comprehensive "relapse prevention plan." A relapse plan involves understanding the reasons for his addiction, dealing with those reasons, and developing a strategy for avoiding repeating his behavior. (Tr. 59-64).Respondent's treatment requires bringing in "accountability partners" who can support him in his recovery. In order to complete the program, Respondent must show he has changed both behaviorally and emotionally. (Tr. 56-58).
Underwood found Respondent very committed to, and engaged in, his treatment program, and has progressed into Phase II of the three phase program. As an indication of his progress, Underwood noted Respondent no longer denies responsibility for his actions, and has completed nearly half of his relapse plan. Respondent's support partners include his rabbi and Andrea, his wife. Andrea has been very involved in Respondent's treatment. (Tr. 64-65).
Respondent has an extensive monitoring system in place. Every word typed on his computer is recorded and sent to his probation officer. He is essentially on home confinement, and is subject to random drop-ins by police officers who can search his house for inappropriate materials. He also has to regularly check-in with his probation officer and comply with other probation conditions. (Tr. 81-83). Respondent has told Underwood continuing to practice law is very important to him. He has worked hard to improve his relationship with his wife and children. He is also committed to his Orthodox faith. (Tr. 84-85).
Underwood spoke on the telephone about Respondent with Dr. Stafford Henry in mid-2010. At that time, Respondent was in Phase I of his treatment. She told Dr. Henry Respondent was beginning to understand the issues surrounding his addiction, and was a viable candidate for
successful recovery. She also told him Respondent was highly motivated not to return to his addictive behavior, and was fearful of losing his family and livelihood if he did. She also told Dr. Henry Respondent was where she would expect him to be at that point in his treatment. (Tr. 66-67, 72, 81-82). After reviewing Dr. Henry's report, Underwood believes Dr. Henry took her statements out of context. Their conversation lasted 15 to 25 minutes, but was summarized by Dr. Henry in a few lines in his report and much of the information Underwood told Dr. Henry is not in his report. (Tr. 68-80; Adm. Ex. 7 at 20).
Dr. Stafford Henry
Dr. Stafford Henry is a physician licensed to practice medicine in Illinois, and is board certified in general psychiatry, forensic psychiatry and addiction psychiatry. He is in private practice and, as part of that practice, he provides consultations to several local, state and federal agencies. Dr. Henry has evaluated approximately 150 attorneys and testified before the ARDC between 20 and 30 times. He qualified as an expert witness each time he testified. He has also been qualified as an expert witness in state and federal courts. Dr. Henry earns between 20 and 30 per cent of his income from the ARDC. (Tr. 106-20, 124, 187-88, 242; Adm. Ex. 6; Resp. Exs. 5, 5A, 5B).
Dr. Henry performed a psychiatric evaluation of Respondent, which involved reviewing relevant documents related to Respondent's criminal case, transcripts of the computer chats between Respondent and Amy Girl, the pleadings in this disciplinary matter, and records from the Center for Contextual Change. He also reviewed the notes and report of Dr. Arnold Tobin, a psychiatrist and psychoanalyst, who is treating Respondent. Additionally, Dr. Henry spoke with Joel Falco and Kelli Underwood from the Center, and Dr. Tobin. (Tr. 125-32, 147-52; Adm.
Exs. 2, 3). Dr. Henry also met with Respondent on July 15 and 29, 2010, and spoke with him for a total of six hours. (Tr. 155-63, 188-89; Adm. Ex. 7; Resp. Ex. 6).
Based on his review of the facts, Dr. Henry diagnosed Respondent as having urophilia and hebephilia. (Tr. 175-76). Urophilia is an intense sexual arousal involving urine. Dr. Henry based this diagnosis on Respondent's early childhood experiences, and on the facts Respondent referred to himself in the online chats as the "pee guy," and made frequent references to urine. Paraphilia is sexual arousal involving objects or individuals in non-normative situations Dr. Henry described hebephilia as a paraphilia focusing on pre-adolescents between the ages of 12 and 14. (Tr. 176-79, 224, 226). Dr. Henry made treatment recommendations for Respondent. He concluded Respondent should continue group and individual therapy at the Center for Contextual Change, continue to see Dr. Tobin, and adhere to the conditions of his probation. (Tr. 179-80). Dr. Henry believed the cognitive behavioral treatment Respondent was receiving is very important for sexual disorders, and felt Mr. Falco, one of Respondent's therapists, had a very good understanding of Respondent. (Tr. 180-81). Dr. Henry opined Respondent's internet access should continue to be "severely limited. (Tr. 182). Dr. Henry concluded there were no mental health reasons that would preclude Respondent from adhering to the Illinois Rules of Professional Conduct if Respondent followed Dr Henry's recommendations. (Tr. 210, 240-41). According to Dr. Henry, with treatment Respondent would be at minimal risk of repeating his misconduct. (Tr. 182-84, 232-33).
Dr. Henry said the DSM-IV is a diagnostic manual drafted by the American Psychiatric Association for the purposes of detailing diagnostic characteristics used in the mental health field, and is a compilation of psychiatric nomenclature designed to allow clinicians to communicate with one another. It is not intended to be a complete compilation of psychiatric
nomenclature and diagnoses. Hebephilia is a type of paraphilia, but the term is not specifically contained in the DSM-IV. (Tr. 190-94, 242-43). The DSM-IV also does not contain a diagnosis of internet addiction, although it could be categorized as a paraphilia "not otherwise specified." "Not otherwise specified" is, in itself, a category included in DSM-IV. (Tr. 198-99).
Dr. Henry opined Respondent's contention he knew the people he chatted with were adults and not children, even though they identified themselves as children, was "specious and not at all credible," in part because during one of Respondent's chats he instructed the person on how to touch herself, an unnecessary instruction if he thought he was dealing with an adult. (Tr. 172-73). In another chat, he directed the person to a web site which showed two women urinating on each other. (Tr. 168-74). Dr. Henry thought it was significant Respondent knew of that web site. (Tr. 174-75).
Harold Garfinkel is the attorney who represented Respondent in his criminal matter. Initially, he explained, there were two criminal cases brought against Respondent in Colorado, one in Douglas County and one in Denver County. Subsequently, the case in Denver County was dismissed. (Tr. 246-51). Respondent never met with a minor and declined an invitation to meet with an undercover police officer posing as a minor. The Douglas County prosecutor reduced the charges against Respondent, he pled guilty to two charges, and a deferred judgment was entered on the felony charge. The deferred judgment meant there would be no felony conviction after probation was successfully completed, only a misdemeanor conviction for wholesale promotion of obscenity. The conditions of probation are extensive and intrusive. Garfinkel has known Respondent since 1995 or 1996, and opined he has a good reputation in the community for honesty. (Tr. 257-78, 279, 289; Adm. Ex. 5; Resp. Exs. 2, 16).
Wendy Joslin is a probation officer with the Cook County, Illinois, Probation Department. From February 2010 to April 2011, Respondent was assigned to her. Respondent was given probation in Colorado, but because he lived in Chicago, he was transferred to the Cook County Probation Department. Joslin saw Respondent on a weekly basis, and monitored his curfew and treatment. Two or three times per month she went to his home to make sure he was complying with his curfew. She occasionally searched his home, including his computer, to ensure he was complying with the terms of his probation. One of the terms of Respondent's probation prohibited him from having contact with minors, other than his own children. In monitoring Respondent's progress in his treatment, she had discussions with Joe Falco and Kelli Underwood, and found his progress was good. During the period of Joslin's involvement, Respondent did not violate any terms of this probation. After Respondent successfully completes his probation, she said, his case will be closed, and he will have no restrictions, including no requirement to register as a sex offender. (Tr. 392-416).
Dr. Arnold Tobin
Dr. Arnold Tobin is a psychiatrist and psychoanalyst. He graduated from medical school and has been practicing in these fields since 1953. Initially he worked in hospitals, and has been in private practice treating patients since 1958. Dr. Tobin teaches courses in psychiatry, and has published numerous articles on various topics. He has been retained to perform evaluations as a forensic psychiatrist in more than 200 cases. Generally, a psychoanalyst focuses more on a patient's subconscious, and needs to see the patient more frequently than a psychiatrist. Dr. Tobin has treated approximately 12 patients with severe sexual problems, including sex
addiction. He is a board certified psychoanalyst, but not board certified in forensic psychiatry or addiction psychiatry. (Tr. 480-93, 498-99, 503-504, 586; Resp. Ex. 7).
Dr. Tobin has been seeing Respondent since February 2009. He is aware of Respondent's internet activities and has read transcripts of some of Respondent's internet conversations. Dr. Tobin believed Respondent and the individuals with whom he chatted "were play acting sexual roles" for the purpose of sexual excitement. (Tr. 495-96, 505-506). Dr. Tobin diagnosed Respondent as having a sexual addiction involving masturbation using the internet. Respondent interacted with women in ways that made him feel dominant, which excited and stimulated him. In the DSM, the diagnosis would be characterized as an exhibitionistic form of paraphilia. Respondent also had anxiety relating to his work and family life, and an underlying obsessive compulsive pathology. (Tr. 508-15, 544).
Unlike Dr. Henry, Dr. Tobin did not include urophilia in his diagnosis because Dr. Tobin does not consider it a diagnostic term, but a symptom of a broader diagnosis. (Tr. 517-26). Dr. Tobin does not believe Respondent ever thought he was chatting with an underage girl because Respondent never made an attempt to meet with anyone with whom he chatted, and there was no evidence he fantasized about underage girls. (Tr. 530-32). Dr. Tobin also disagrees with Dr. Henry's diagnosis of hebephilia because that term does not appear in the DSM and is therefore not a recognized pathological condition, and he concluded Respondent has no psychosexual disorder regarding an attraction toward children. (Tr. 533-35). An assessment performed on Respondent in Colorado shows Respondent has no deviant sexual interest in children. Dr. Tobin believes Respondent has a low risk of repeating his behavior. (Tr. 537-38, 542-43, 558-69, 573-76, 610-11; Adm. Ex. 2).
Dr. Tobin's treatment of Respondent consists of analytical therapy. Respondent has made progress, and Dr. Tobin plans to continue with this treatment. (Tr. 544-48). Dr. Tobin concluded Respondent's prognosis is excellent, and if he continues treatment and maintains his relationship with his wife, he would not repeat his conduct. However, if Respondent loses his law license, it will put a strain on him and his family, and adversely affect his treatment. (Tr. 556-59, 611-12). Dr. Tobin believes Respondent has no mental or psychiatric condition that would interfere with his ability to practice law. (T. 558-59, 582-83).
Dr. Tobin has not reviewed the pleadings filed in the disciplinary matter, has not read all the internet chats, and has not seen the video of Respondent. (Tr. 603-604). Dr. Tobin based his diagnosis primarily on his conversations with Respondent, but also considered discussions he had with Falco. (Tr. 605-607).
Respondent graduated from law school in 1996, and is licensed to practice law in Illinois and Massachusetts. After graduating law school, Respondent lived in Israel for three years and studied Jewish law. He passed the Illinois bar exam and was admitted in 2000. (Tr. 687, 694-97). Initially, Respondent worked for a law firm in Boston, but later moved to Chicago and worked as in-house counsel for a real estate investment company. In 2004, he worked in the real estate department of the Aon Corporation. In 2008, he began working for a real estate development firm in Milwaukee, but the commute was difficult so he began working for the Solo Cup Company in Chicago, also doing real estate work. By late 2008, the real estate market was depressed and Respondent was working part time. He was arrested in January 2009, but the conduct related to his arrest did not affect his job or the reasons he later lost his job. Respondent is currently a sole practitioner with a limited practice. (Tr. 697-710).
Respondent was married in 1999. He has five children ranging from nine to two years of age. Respondent is a devout Orthodox Jew. (Tr. 694-700, 708, 712). Respondent acknowledged the seriousness of his conduct and is remorseful for it. He has accepted responsibility for his actions and is working diligently to become a better husband, father and lawyer. He understands the impact his conduct has had on his family and his community, and by accepting responsibility for his actions, he believes he will not repeat his mistakes. He understands he has an addiction, and is learning how to deal with it. (Tr. 712-16). He is committed to not engaging is similar conduct in the future, and understands if he does, he will lose his wife, family and community, and will likely be imprisoned. (Tr. 729-30).
Respondent began engaging in internet chats in 2000, for sexual gratification. It was an escape and diversion from his problems. (Tr. 707, 717-19, 739). When Respondent went into chat rooms, he used a false name and age. According to Respondent, nearly everyone uses a false identity in the chat rooms. He only went into the chat rooms designated for individuals who were 18 years old or older, with the intent of finding someone who would engage in a sexual conversation, and with the goal of masturbation. (Tr. 720-23, 732-35, 739). Respondent believed everyone who engaged in such chats was role playing. (Tr. 739-40, 769).
Respondent was not interested in children between the ages of 12 and 17. If he suspected he was chatting with a child, he would terminate the conversation. (Tr. 740-41, 770-71). When he had conversations with the undercover police officers posing as minors, based on the level and content of the conversations, he did not believe they were minors. (Tr. 753-57, 766-68). Respondent also believed the police officer who used the name Amy Girl was an adult. (Tr. 772). Respondent sent that officer a picture of an erect penis, but it was not a picture of his penis. (Tr. 773). Respondent also had a telephone conversation with the police officer who used
the name Brati 95, and believed she was an adult. (Tr. 757-59). Respondent exposed himself and masturbated on a web camera in front of that officer. (Tr. 775). He does not believe he was sexually aroused by urine. Respondent chatted about urine to find quickly someone who would engage with him. (Tr. 740, 746, 783-84).
One of the undercover police officers attempted to get Respondent to agree to meet her at a Wisconsin water park, but Respondent refused to meet with her. Respondent never met with, or arranged to meet with, anyone he met on-line. (Tr. 796-97).
Respondent was arrested in January 2009, and spent 12 days in Cook County Jail before being transferred to Colorado. While in Cook County Jail, Respondent received visits from his wife, Rabbi Fuerst, Jay Runinstein, and Hal Garfinkel. Rabbi Fuerst had to make a determination as to whether Respondent should stay in the Jewish community and remain married. (Tr. 793-96). Respondent was charged in Denver and Douglas Counties in Colorado. The Denver charges were dismissed. Respondent entered into a plea agreement in the Douglas County case in which he pled guilty to a misdemeanor charge of obscenity and a felony charge of sexual exploitation of a minor. A deferred judgment was entered on the charge of sexual exploitation of a minor. Under the deferred judgment, the conviction on the sexual exploitation charge was withheld, and upon completion of the probation term, the charge will be withdrawn. Because no conviction has been entered, Respondent is not required to register as a sex offender. (Tr. 799-802, 834-38, 849-50; Adm. Ex. 5; Resp. Ex. 10).
After he was arrested, Respondent submitted to numerous evaluations and assessments for the Colorado probation department. These evaluations concluded Respondent did not have a deviant sexual attraction to children, and was at low risk for future criminal sexual behavior. (Tr. 806-808; Adm. Exs. 2-5).
Respondent's probation began on November 10, 2009, and will continue until November 10, 2013. (Tr. 812). As part of Respondent's probation, he is allowed to use the internet only for work purposes, he is prohibited from going into internet chat rooms, and his internet use in monitored by the probation department. In addition, Respondent has installed another program on his computers, called "Covenant Eyes," that monitors his computer usage. Respondent is also prohibited from using alcohol and drugs. He is prohibited from possessing anything of a sexual nature, and he is required to be in his house between 10:00 p.m. and 6:00 a.m. Police officers can search his house at any time and perform random drug tests. He is required to complete treatment with the Center for Contextual Change, which includes group therapy. Respondent is also responsible for paying between $8,000 and $9,000 in fees to Colorado, and supervision fees in Illinois. (Tr. 724-27, 730-31, 813-17). Also as part of his probation, Respondent cannot have contact with minors. This restriction has severely limited his social life because he cannot be around other families who have minors. (Tr. 818-19).
Respondent's on-line chatting had an adverse affect on his marriage and family relationships. He was often tired and short-tempered. (Tr. 746-48). He tried to stop and, in 2003 or 2004, sought help from the ABA, but was referred to a person for alcohol and drug addiction, which did not address his issues. (Tr. 748-49). As time went on, Respondent rationalized his behavior, and believed, because he was fulfilling all of his obligations, he did not have a problem. (Tr. 749-50). Respondent engaged in some of his behavior at work, but it did not affect his job performance, and no one at his workplace was aware of it. (Tr. 752).
Respondent began seeing Dr. Tobin in 2009, continues to see him, and finds his treatment helpful. Dr. Tobin has diagnosed Respondent as having an obsessive compulsive disorder and a sexual addiction to the internet. (Tr. 750-51, 798-99).
Respondent began treatment with Joel Falco at the Center for Contextual Change in March 2010, and continued until Falco became sick in March 2011. Initially, Falco thought Respondent was in denial, but as the treatment progressed, Respondent acknowledged his problems and began to work through them. (Tr. 775-76). Respondent is no longer in denial and believes his addiction is under control. (Tr. 817-18). Respondent's arrest and conviction has been stressful on his marriage, but also forced him and his wife to confront and work on marital issues. It has also caused financial difficulties. (Tr. 809-10, 817). Respondent's law license is important to him and necessary to support his family. The suspension of his license would be detrimental to his family and his recovery. (Tr. 818-20).
Respondent engages in numerous volunteer activities, including preparing members of the Jewish community for burial, and serving as a licensed volunteer EMT. He has performed pro bono legal work for members of the community and Jewish organizations. He also has taught classes about Jewish studies. (Tr. 822-27, 830-33).
Rabbi Shmuel Fuerst
Rabbi Shmuel Fuerst is the Rabbi of Congregation Agudath Israel and head judge of Agudath Yisrael, a rabbinical court. He has been a rabbi for 35 years, and has known Respondent for 12 years. As head judge of a rabbinical court, he resolves disputes between Orthodox Jews, and performs marriage counseling and divorces. He is one of Respondent's rabbi and their families are friends. Rabbi Fuerst visited Respondent in Cook County Jail to learn why he was arrested, and to determine if Respondent's marriage could be salvaged and if Respondent should continue to be a member of the congregation. After talking to Respondent, Rabbi Fuerst believed Respondent acknowledged his actions were wrong, and was remorseful for them. He also believes Respondent will not repeat his conduct, and if he did, he would lose
his wife, children and religious community. Rabbi Fuerst is aware of the facts leading to Respondent's arrest, and discussed the case with Respondent's attorney. (Tr. 419-26, 428).
Rabbi Fuerst opined Respondent has a good reputation for honesty in the Orthodox community. Only a few members of the community know about Respondent's misconduct. Respondent performs numerous volunteer activities for the community. Since his arrest, Respondent has a better relationship with his wife and children. (Tr. 426-30). Since January 2009, the Orthodox community has provided Respondent's family with ongoing financial support consisting of $2,000 per month, totaling $50,000. The community provides the support because it believes in Respondent's family and wants to keep his family together. (Tr. 430-32).
Rabbi Avrohom Alter
Rabbi Avrohom Alter is a Rabbi of Congregation Migdal Torah and a director of the adult Jewish educational programs. He has been a rabbi for 30 years and has known Respondent for 11 years. He and his family are very close to Respondent's wife. Rabbi Alter became aware of Respondent's arrest on the night it occurred, and knows the underlying facts. Since that time he has had numerous discussions with Respondent, and believes Respondent acknowledges his mistakes and is extremely remorseful for his actions. Respondent has improved his relationship with his wife and children. Respondent is an active member of the community and performs volunteer activities, including working as a volunteer EMT, and participating in a group that assists families after a member dies. Rabbi Alter believes Respondent has a good reputation for truth and honesty in the community, although few members of the community are aware of Respondent's misconduct. (Tr. 433-51, 466-67).
Rabbi Efraim Twerski
Rabbi Efraim Twerski has been a rabbi for ten years and has known Respondent for six years. He is aware of the criminal allegations and has counseled Respondent on a regular basis. Rabbi Twerski concluded Respondent regrets his actions, and understands how his actions have affected every aspect of his life. As a result, Respondent has become closer to God, his wife and his children, and has become a better person. Rabbi Twerski opined Respondent has a good reputation for honesty in the Orthodox community, although few members of the community are aware of Respondent conduct. Respondent is an active member of the community and participates in several volunteer activities. (Tr. 470-77).
Jay Rubinstein is an attorney and accountant. He and his family have been friends with Respondent and his family for 10 or 11 years, and they are all members of the Orthodox Jewish community in West Rogers Park. Respondent's wife, Andrea, called Rubinstien's wife shortly after Respondent was arrested, and stayed at Rubinstein's home on several occasions. Rubinstein has spoken to Respondent numerous times about the conduct surrounding his arrest and he believes Respondent understands the nature and consequences of his actions. (Tr. 331-38). As part of Respondent's treatment, he subscribes to an internet monitoring website called "Covenant Eyes" which prevents Respondent from accessing certain websites and records every website he visits. Covenant Eyes sends reports of these records to Rubinstein and to Rabbi Alter for their review. Respondent has been using Covenant Eyes for two and one-half years. (Tr. 339-45).
Rubinstein opined Respondent has an excellent reputation for honesty and integrity in the Orthodox Jewish community in West Rogers Park, and is a respected member of the community.
Rubinstein was not aware of all of the facts surrounding Respondent's misconduct, but after learning more about them, his opinion has not changed. He also is not aware of whether members of the community know of the specific facts involved in this matter. (Tr. 348-74).
Respondent has not received a prior discipline.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Cutright, 233 Ill. 2d 474, 910 N.E.2d 581 (2009). Clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence. "Clear and convincing evidence has been defined as evidence producing a firm belief or conviction as to the truth of the proposition." Cleary and Graham's Handbook of Illinois Evidence, sec. 301.6 (8th ed. 2004). This standard of proof is one in which the risk of error is not equally allocated; rather, this standard requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66, 102 S. Ct. 1388 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).
In this case, based on the admitted facts and the evidence and testimony presented at the hearing, we find Respondent engaged in most, but not all, of the misconduct alleged in the Complaint. Specifically, we find Respondent: 1) committed criminal acts that reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 2) engaged in conduct prejudicial to the administration of justice; and 3) engaged in conduct that tends to
defeat the administration of justice or brings the courts or legal profession into disrepute in violation of Rules 8.4(a)(3) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770. We further find the Administrator failed to prove Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct.
It is essentially undisputed Respondent engaged in criminal conduct that reflects adversely on the lawyer's trustworthiness or fitness as a lawyer. Respondent pled guilty to one count of sexual exploitation of a child and one count of wholesale promotion of obscenity. He admitted he entered a chat room in which a police officer, who was posing as minor, was present, and engaged in sexually explicit conversations with the officer. He also admitted he sent an obscene picture to the officer. There can be no question such conduct involves moral turpitude and reflects unfavorably on Respondent's fitness to practice law. Respondent committed a serious criminal act involving aberrant sexual conduct with a person purporting to be a female 12 years of age. See In re Tatar, 01 CH 3, M.R. 18781 (Sept. 19, 2003) (attorney convicted of felony child enticement after having a sexually explicit internet chat with a purported minor and arranging to meet her. The purported minor was actually an adult police officer) see also In re Hartman, 98 CH 75, M.R. 16608 (Mar. 22, 2000) (attorney convicted of three counts solicitation of a minor for prostitution, patronizing a juvenile prostitute and aggravated criminal sexual abuse).
We think there is a peculiar disconnect with reality in this case regarding the issue of the involvement of a minor child. There is no doubt of Respondent's guilt of the crimes to which he pled guilty in Colorado, one of which involved entering a chat room with a person posing as a female child and engaging in sexually explicit conversations with the officer. This constituted
criminal conduct. But Dr. Tobin concluded Respondent has no psychosexual disorder regarding an attraction toward children, and an assessment performed on Respondent at the behest of the Colorado prosecutorial authorities concluded Respondent has no deviant sexual interest in children. And while Dr. Henry did not believe Respondent's assertion he knew the people in the chat room who claimed to be children were, in fact, adults, there is no evidence whatsoever of the involvement of actual children. Further, Kelli Underwood spoke of part of the treatment being an understanding by Respondent of the effect his addiction has had on his "victims and the people in his life." But since there were no actual children involved in conduct to which he pled guilty, we do not understand who the victims were, other than Respondent's own family. We are therefore presented with the anomalous situation in which Respondent stands convicted of "internet sexual exploitation of a child," involving sexual misconduct with an adult posing as a child, but which did not involve an actual child, while a respected mental health expert, and the prosecuting authorities, all believe Respondent has no deviant sexual interest in children. Our dilemma, of course, is how to translate this anomaly into a basis for our recommendation, since Respondent admits role playing with someone likewise playing the role of a child. Respondent's conduct is repugnant, and we think that conduct was extremely offensive. However, none of Respondent's misconduct has not been shown to have constituted child abuse, sexual or otherwise.
The fact the Colorado court entered a deferred judgment does not affect our findings. In the criminal matter, Respondent voluntarily pled guilty to one felony and one misdemeanor. The court entered a deferred judgment on the felony, in which the conviction was deferred for four years during Respondent's period of probation. When and if his probation is successfully completed, Respondent will be allowed to withdraw his guilty plea and the felony charge will be
dismissed. But our findings are based on the established facts before us, not the legal status of Respondent's criminal proceedings. The gist of Respondent's misconduct is not the fact of his pleas of guilty, but the circumstances and behavior his pleas admit he performed. In disciplinary proceedings it is well-established the determination of misconduct is based on the underlying conduct. See In re Rinella, 175 Ill. 2d 504, 667 N.E.2d 909 (1997); In re Sims, 144 Ill. 2d 323, 579 N.E.2d 865 (1991). Here, Respondent admitted in his criminal proceedings, and in these disciplinary proceedings, he engaged in the conduct forming the basis of the criminal charges. Accordingly, whether Respondent's felony charge is ultimately dismissed can have no impact on our findings, but may, of course, affect how our recommendations, if adopted by the Court, would be implemented.
We also find Respondent's conduct was prejudicial to the administration of justice, tended to defeat the administration of justice, and brought the legal profession into disrepute. As an attorney, Respondent is an officer of the court and is expected to uphold, and not violate, the law. See In re Lundardi, 127 Ill. 2d 413, 421, 537 N.E.2d 767 (1989); In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1 (1985). An attorney's violation of the law demeans the legal profession, brings it into disrepute, and causes doubt in the minds of the public as to the integrity of the entire bar. See In re Andros, 64 Ill. 2d 419, 424, 356 N.E.2d 513 (1976). This is especially true in this case, where Respondent conduct involved sexual misconduct with a purported minor.
We further find the Administrator failed to prove Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). However distasteful it may have been, there was nothing dishonest or fraudulent about Respondent's misconduct. After Respondent was arrested, he was forthright and cooperative with the law
enforcement authorities, his evaluators and his treatment providers. He never denied what he did or lied about it. Therefore, we find the Administrator presented insufficient evidence to establish a violation of this Rule.
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). "The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system." See In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). In determining the appropriate sanction for an attorney's misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986). Also, "it is important to recognize the deterrent value of a sanction and the need to impress upon others the seriousness of the misconduct at issue." Twohey, 191 Ill. 2d at 85.
The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during the attorney's disciplinary proceedings. See Gorecki, 208 Ill. 2d at 360-61. In the present case, there are significant aggravating and mitigating factors.
Respondent's misconduct is aggravated by the fact this was not an isolated incident. Respondent admitted he engaged in similar internet chatting for several years. During this
period of time, there is evidence establishing he engaged in sexually explicit chats with one other adult individual who presented herself as a minor. The evidence in that case is similar to the evidence in the case to which Respondent entered guilty pleas. Although Respondent was not convicted in the second case, we can consider this evidence in aggravation, and find it is a significant aggravating factor. See In re Lewis, 138 Ill. 2d 310, 345-46, 562 N.E.2d 198 (1990).
In mitigation, Respondent has no prior discipline. He was admitted to practice law in 2000, and was arrested in 2009. Generally, the lack of a prior discipline is a significant mitigating factor. However, based on the relatively short period of time Respondent practiced law prior to his arrest, and the nature of his misconduct, we give this factor relatively little weight. See In re Demuth, 126 Ill. 2d 1, 14, 533 N.E.2d 867 (1988).
Respondent's misconduct is mitigated by the fact he acknowledged it and appears to be genuinely remorseful. Respondent convincingly testified he is sorry for his actions and will not repeat them in the future. He was sincere and contrite. Additionally, three rabbis, who know Respondent well, testified he has acknowledged his mistakes to them and is remorseful, and, of extreme importance, they each testified they believe his remorse is genuine. We find the rabbis' testimony both credible and persuasive. Smith, 168 Ill. 2d at 283. Moreover, Respondent's actions speak louder than his words. He has done everything possible to acknowledge his wrongdoing and to ensure it will not happen again. He is diligently working through his treatment at the Center for Contextual Change and with Dr. Tobin. Kelli Underwood, his therapist at the Center, testified Respondent has progressed through the program and has acknowledged his problems. We understand Respondent is bound by certain requirements of his probation, but we find he is genuinely pursuing his treatment with the intent of correcting his problems, rather than simply to satisfy his probation obligations.
The Administrator argues Respondent has not fully acknowledged his misconduct because he denied he believed the individual he chatted with was a minor. We understand the Administrator's argument, but as we noted above, we find it of no legal consequence, either in mitigation or aggravation. The gravamen of Respondent's criminal misconduct was engaging in unlawful and aberrant sexual behavior with a person holding him or herself out as a twelve year old, not with a person Respondent believed, or did not believe, to be underage. Respondent has acknowledged his misconduct and, in the expert opinions of both the Administrator's and the Respondent's mental health experts, such acknowledgment is sufficient to enable him to receive effective treatment. Respondent's treating doctor and the therapists at the Center for Contextual Change unequivocally stated Respondent is not in denial and has taken responsibility for his actions. Based on this acknowledgement, even the Administrator's expert witness, Dr. Henry, agreed Respondent's prognosis was excellent.
Also in mitigation we consider the fact Respondent's misconduct did not involve the practice of law or affect any clients. The absence of harm to clients is a mitigating factor. See In re Harth, 125 Ill. 2d 281, 290, 531 N.E.2d 361 (1988). Although some of the misconduct occurred at Respondent's place of employment, there is no allegation or evidence it was witnessed by anyone at his workplace, his employer or supervisors knew about it, or it affected his job performance.
Another mitigating factor is Respondent's cooperation with the criminal proceedings and disciplinary proceedings. There is no evidence Respondent was obstructive or antagonistic in his criminal proceedings. In fact, the evidence clearly shows he fully cooperated with the Colorado authorities. For example, after his arrest, Respondent underwent a mental health evaluation and a sex offender evaluation. In the reports related to those evaluations, Respondent was
characterized as cooperative. Moreover, Dr. Henry stated Respondent was cooperative and candid during his evaluation. Additionally, Respondent fully cooperated with the Administrator in the disciplinary proceedings.
Respondent also presented persuasive character evidence. Traditionally, character evidence is limited to an individual's reputation in the community for truth and veracity. In this case, four witnesses testified regarding this point. All four stated Respondent's reputation in the community for truth, veracity and integrity was good, but also opined most people in the community are not aware of his misconduct. Generally, based on these facts, the character testimony would be of limited value. However, we find the character testimony compelling for two reasons. First, as we have found, Respondent's misconduct did not involve dishonesty. Therefore, it would not affect his reputation for truth and veracity. Second, the testimony of the three rabbis was persuasive and entitled to significant weight. The rabbis' testimony went beyond general character witness testimony. Each of the rabbis is a learned and well-respected member of the Jewish community. Each expressed his belief Respondent has acknowledged his misconduct and is genuinely sorry for it. Each stated Respondent is committed to changing his behavior and ensuring he will not repeat his mistakes. Impressively, Rabbi Fuerst testified he and his community are so committed to Respondent and his family they are providing Respondent with ongoing financial support. The testimony of these individuals goes beyond the usual character testimony, and speaks to the actual character of Respondent. These are thoughtful individuals who would not testify on Respondent's behalf unless they honestly believed in Respondent, and we give this testimony substantial weight.
Respondent also performs volunteer and charitable activities. He testified these activities include preparing deceased members of the Jewish community for burial, and serving as a
licensed volunteer EMT. Both of these activities are time consuming and required extensive training. He also performed pro bono legal work for members of the community and Jewish organizations. Prior to his arrest, he taught Jewish studies classes.
Having considered the aggravating and mitigating facts and circumstances, we must now recommend what we consider to be the appropriate sanction. The Administrator recommends Respondent be suspended from the practice of law for three years and until further order of the Court, and cites numerous cases to support this recommendation. See In re Tatar, 06 RT 3007, M.R. 21375 (Nov. 12, 2010) (attorney denied reinstatement, from a voluntary disbarment, based on conviction for one count of child enticement); In re Mangan, 06 CH 37, M.R. 22303 (May 19, 2008) (in a petition to impose discipline on consent, attorney suspended for two years and until further order of the court after he secretly recorded and videotaped a female associate, including while she was in the restroom); In re Murphy, 07 CH 116, M.R. 22339 (May 19, 2008) (attorney voluntarily disbarred after being convicted of indecent solicitation of a child); In re Mateas, 00 CH 81, M.R. 18636 (Mar. 19, 2003) (in a petition to impose discipline on consent, attorney suspended for three years and until further order of the court, with the suspension stayed after one year based on his arrest for possession of child pornography); In re Clark, 97 CH 111, M.R. 17713 (Nov. 29, 2001) (attorney suspended for two years and until further order of the court based on three incidents where he tied up women with rope). The Administrator also cited several cases from other jurisdictions.
Respondent recommends he be censured or, alternatively, if a suspension is imposed, it be stayed by a period of probation. He also cites to numerous cases to support his recommendation. See In re McFerren, 08 RS 2510, M.R. 22593 (2008) (attorney with alcohol dependency reinstated from disability status); In re Engel, 283 Wis. 2d 140, 698 N.E.2d 821
(Wis. 2001) (attorney reprimanded after he used a computer to arranged a meeting with a purported minor with an interest in having sex with her); In re Maiorino, 301 A.D.2d 53, 750 N.Y.S.2d 264 (1st Dept. 2002) (attorney censured after he improperly touched a minor); Matter of Wong, 275 A.D.2d 1, 710 N.Y.S.2d 57 (1st Dep. 2000) (attorney censured after admitting to inappropriately touching a minor); State ex rel. Oklahoma Bar v. Foster, 995 P.1d 1138 (2000) (attorney reprimanded after he made an inappropriate comment to a minor about her breasts and suggested he photograph them); In re Buckley, 1 Cal. State Bar Ct. Rptr. 201 (1990) (attorney reprimanded after conviction for soliciting a lewd act in a public place); In re Howard, 297 Or. 174, 681 P.2d 775 (1984) (attorney reprimanded after he engaged the services of a prostitute).
We find the cases cited by the Administrator distinguishable from the present case. The only Illinois disciplinary case cited by the Administrator decided after a contested hearing was Clark. Although we acknowledge non-contested cases can be instructional, we think it appropriate to give greater weight to cases where the facts and reasoning have been fully developed, or are consistent with cases that have been fully adjudicated. As will be discussed below, there are numerous other cases more analogous to this case which support our recommended sanction.
In Clark, the attorney tied up three women with rope and took pictures of them. Two of the women were applying for jobs at the firm, and one worked for the firm. Clark was not arrested based on any of the incidents. In re Clark, 97 CH 111 (Hearing Bd. at 3-9). The Hearing Board found Clark's conduct amounted to unlawful restraint and battery which reflected adversely on the legal profession. Clark presented medical evidence diagnosing him as having paraphelia, which generally meant he had a disorder characterized by recurrent and intense sexual urges, fantasies, or behaviors, and a narcissistic personality disorder. One evaluating
expert witness testified Clark's condition could be treated with long-term therapy, and noted his current treatment, while appropriate, was insufficient in length. Clark's treating physician also opined treatment should last for four or five years. In re Clark, 97 CH 111 (Hearing Bd. at 11-16).
The Hearing Board found Clark had a mental impairment that affected his judgment and actions. Although there was evidence Clark did not pose a current threat to others, there was also evidence he had a "long-term illness with possibilities of recurrence." The Hearing Board also relied on the facts Clark's conduct imperiled the personal freedom of others, he engaged in a pattern of misconduct, and he used his position of authority to engage in the misconduct. In re Clark, 97 CH 111 (Hearing Bd. at 26-28). Clark was suspended from the practice of law for two years and until further order of the court. The Hearing Board believed it was necessary for Clark to demonstrate his continued progress and rehabilitation before being allowed to continue practicing law. (Hearing Bd. at 28).
The present case is distinguishable from Clark for numerous reasons. Respondent, unlike Clark, has received and continues to receive, intensive and effective treatment for his condition. Even Dr. Henry, the Administrator's medical expert, testified there would be no reason to preclude Respondent from practicing law if he continued to follow his treatment. Also, unlike Clark, Respondent is required by the terms of his criminal probation to continue his criminal probation treatment. If he fails to successfully complete his treatment and probation, he will go to jail, as well as suffer other serious personal consequences. Another significant distinction is that Respondent's conduct was not related to the practice of law and did not involve his position as an attorney. Clark's misconduct, on the other hand, involved the fact he was an attorney and his position of authority. Clark's actions were directed at either prospective or current law firm
employees. He used his position and authority to coerce his victims into allowing him to engage in his misconduct. These are significant distinctions not present here.
Similarly, we find the cases cited by Respondent to be of little value because all but one are from other jurisdictions. Because there are sufficient Illinois cases to guide us in deciding this matter, we need not look to other jurisdictions for assistance. The only Illinois case cited by Respondent is a reinstatement case relating to an attorney who was on disability inactive status. McFerren, 08 RS 2510. Her impairment was different from Respondent's and her misconduct was directly related to neglecting client matters. The case is useful to illustrate the process by which an attorney can be reinstated after having a mental impairment, but that process is not in question here and we need not rely on it to support our recommendation.
After reviewing these cases, and considering the facts of the present case, we believe Respondent should be suspended from the practice of law until November 10, 2013, the completion date of his four years of criminal probation, with the suspension stayed in its entirety, with conditions. Specifically, we recommend Respondent's suspension run concurrently with his criminal probation, but be stayed as long as Respondent complies with the terms of his probation. If he successfully completes his probation, we recommend his disciplinary suspension be terminated on the date his probation is completed. If Respondent fails to successfully complete his criminal probation, we recommend he be suspended from the practice of law for three years and until further order of the Court. We cannot emphasize enough the comprehensive mature of Respondent's probation and the significance of Respondent's successfully completing probation.
We find Respondent's misconduct very serious; however, we are mindful the purpose of these disciplinary proceedings is not to punish the attorney, but to protect the public, maintain
the integrity of the legal profession, and safeguard the administration of justice. If Respondent successfully completes his probation, we find no reason to suspend him from the practice of law, and believe the goals of the disciplinary system will be accomplished without a suspension for a specified period of time.
Our recommended sanction will protect the public. In our view, Respondent has and is doing everything he can to ensure his misconduct will not recur. Respondent has acknowledged his misconduct, and has taken the steps necessary to ensure it will not happen again. His sexual activities did not result in the abuse of any child. Admittedly, the majority of the steps Respondent has taken are required as terms of his probation; however, the fact they have been required does not lessen their significance. Respondent is required to comply with the terms of his probation until November 10, 2013. These terms are extensive and pervasive, and intended to not only prevent Respondent from repeating his misconduct during the probationary period, but also to correct the problems that caused the misconduct, and to prevent him from repeating his misconduct after the end of the probationary period.
Under the terms of Respondent's probation, he is required to attend, actively participate in, and complete a sex offender evaluation and treatment program approved by the probation officer; abide by a curfew imposed by the probation officer; submit to any program of psychological or physiological assessment and monitoring, which includes a polygraph test, at the direction of the probation officer or treatment provider; sign releases of information to allow the probation officer to communicate with members of the community supervision team.
Respondent is prohibited from having contact with any children under the age of 18, except his own children; going to or loitering near schoolyards, parks, playgrounds, swimming pools, arcades or other places primarily used by children under the age of 18; and being
employed or volunteering anywhere there would be contact with children. There is, however, substantial evidence his sexually aberrant addiction did not and does not involve children. He is also prohibited from accessing or possessing any sexually oriented or sexually stimulating material; purchasing or consuming alcoholic beverages; using or possessing a camera or video recording devices, except as approved by the probation officer; and using any internet service except as approved by a supervision team. After internet access is approved, Respondent must allow the probation officer to conduct searches of his computer. In fact, there is an extensive monitoring system installed on Respondent's computers and every word typed on them is recorded and sent to his probation officer and Jay Rubenstein, an attorney and family friend. Additionally, Respondent must allow the probation officer to search his personal residence or vehicle, and his personal property is subject to seizure if it violates any terms of the probation. He is also subject to location monitoring using electronic home monitoring or global positioning satellite.
Joslin, Respondent's probation officer, testified she has seen Respondent on a weekly basis, and she has monitored his curfew and treatment. She went to his house two or three times per month to see if he was there before his curfew. She also has searched his home, including his computer, to ensure he was complying with the probationary terms. Joslin also monitored the progress of Respondent's treatment by talking with Joe Falco and Kelli Underwood. Respondent has complied with the terms of his probation and has made good progress with his treatment.
Respondent has enthusiastically undergone treatment. He is successfully completing the sex offender program at the Center for Contextual Change and undergoing individual therapy with Dr. Tobin. He attends group therapy sessions weekly and individual sessions once or twice per month at the Center. His therapy at the Center involves understanding his offending cycle,
the day-to-day negative behavior cycles that contribute to his sexual addiction, and the affect of this conduct on others. It also involves a comprehensive relapse prevention plan. Underwood testified Respondent is very committed to and engaged in his treatment program and has progressed in the second of three phases of the program. He is so committed to the program he attends his sessions even when he has to walk for several hours to get there.
Dr. Tobin has been treating Respondent with analytical therapy since February 2009. Dr. Tobin concluded Respondent has made good progress and plans to continue treatment. He also testified Respondent's prognosis is excellent, and if he continues treatment and maintains his relationship with his wife, he will not repeat his conduct.
Respondent has incorporated additional safeguards to reduce the possibility he will repeat his misconduct. The most significant safeguard is the support Respondent is receiving from his religious community and his family. Rabbi Fuerst believes Respondent will not repeat his misconduct because, if he does, he will lose his family, both his wife and children, and his community. Rabbi Alter and Rabbi Twerski also testified Respondent is an active member of his religious community and understands if he engaged in similar misconduct again he will lose his family and community, and would be imprisoned. We believe Respondent's involvement in his religious community is a significant factor that will substantially reduce the likelihood he will repeat his misconduct.
Importantly, the testimony of Dr. Henry, the Administrator's expert witness, supports our recommendation. He recommended Respondent continue group and individual therapy, continue complying with the conditions of his probation, and continue restricted internet access. Dr. Henry concluded if Respondent followed these recommendations, there were no mental health reasons that would preclude Respondent from adhering to the Illinois Rules of Professional
Conduct. Accordingly, the medical evidence from Dr. Tobin, Respondent's treating psychiatrist, and Dr. Henry, the Administrator's expert witness, are consistent and support the conclusion that if Respondent continues with his course of treatment, and follows the terms of his probation, he will not engage in future misconduct.
We are aware Dr. Tobin and Dr. Henry disagreed on several issues, including Respondent's diagnosis. We cannot, and need not, resolve those differences. The fact is they both agree Respondent is receiving effective treatment, and with continued treatment there is minimal risk he will repeat his misconduct, and there is no contrary evidence in the record. Furthermore, Dr. Henry's testimony is based on an evaluation he performed in July 2010, and Respondent's progress through that date. There is additional evidence in the record regarding Respondent's progress for almost one year thereafter.
Both Dr. Henry and Dr. Tobin opined Respondent's condition does not impair his ability to practice law and fulfill his professional responsibilities, conditioned, with respect to Dr. Henry's opinion, on Respondent complying with Dr. Henry's recommendations. Respondent was punished under applicable Colorado law and it is not appropriate to impose further punishment through these disciplinary proceedings.
We recognize a disciplinary sanction should be sufficient to deter other attorneys from engaging in similar misconduct, and we believe any attorney reviewing this case would be so deterred. The probationary terms imposed upon Respondent are more extensive and intrusive than we could have imposed. Staying his suspension contingent on compliance with those strict terms is far from an insignificant quantum of discipline. Instead, it requires Respondent to drastically restrict his activities and provides a meaningful incentive for him to complete a lengthy course of treatment.
Our recommended sanction is consistent with sanctions imposed in analogous cases. In In re Kunz, 122 Ill. 2d 547, 524 N.E.2d 544 (1988), the attorney was convicted of driving while his license was suspended in 1981, driving under the influence in 1983, and driving under the influence in 1984. When he was ordered to report to jail to serve his sentence, he fled the State. He admitted he was an alcoholic and was receiving treatment. The court noted Kunz had recognized his problem, "was unlikely to pose a danger to the community" and had a condition that was "remediable." The court suspended Kunz for two years and until further order of the court, with the suspension stayed in its entirety with a period of probation. Kunz, 122 Ill. 2d at 549-51.
In In re Karraker, 05 SH 41, M.R. 21231 (Jan. 12, 2007) the attorney was charged with domestic battery and aggravated assault after he struck his wife in the back and arm with a wooden bat and threatened to kill her. When a police officer responded to his wife's emergency call, Karraker lied to the officer, and physically and verbally threatened him. He subsequently pled guilty to disorderly conduct. His excessive use of alcohol contributed to his misconduct, and at the time of the disciplinary proceedings, he was abstaining from alcohol and attending AA meetings. The Hearing Board found Karraker was not a threat to the public or the legal profession and a suspension was unnecessary. The Court agreed and suspended Karraker for six months with the suspension stayed in its entirety with a two year period of probation.
In In re Hayes, 03 SH 113, M.R. 21046 (Sept. 21, 2006) the attorney struck two police officers at O'Hare Airport, called the officers profane and racist names, and repeatedly told the officers she was a civil rights attorney and planned to sue them. She was charged with two counts of battery and one count of disorderly conduct. The charges were dismissed after one of the officers was unable to appear in court. Hayes was diagnosed as suffering from alcohol abuse,
in remission, adjustment disorder, and personality disorder with borderline features. After the incident, Hayes began seeing a psychiatrist and was prescribed medication. Additionally, her mental condition had an impact on her practice of law. In aggravation, Hayes had received a prior discipline for advancing a frivolous claim. The Hearing Board found Hayes did not pose a significant threat and would be capable of practicing law if she complied with recommended treatment. She was suspended from the practice of law for 30 months and until further order of the court, with the suspension stayed in its entirety with 30 months of probation.
In In re Gable, 08 CH 67, M.R. 23234 (Sept. 22, 2009), the attorney was charged and found guilty of two counts of possession of psilocybin, a controlled substance that acts as a hallucinogen. At the time of his arrest, he was employed as an Assistant Public Defender. Gable was sentenced to community service and probation. When he successfully completed the probation, the proceedings against him would be dismissed. After his arrest, he completed a chemical dependency treatment program. Dr. Henry evaluated Gable and concluded there was no mental health reason that would prevent Gable from practicing law. In a petition to impose discipline on consent, Gable was suspended for one year and until further order of the court with the suspension stayed in its entirety by a two year period of probation.
In In re Winfield, 2011PR00009, M.R. 24952 (Nov. 22, 2011) the attorney was convicted of two felony counts of aggravated driving under the influence and causing great bodily harm. In addition, he had misdemeanor convictions for two prior instances of reckless driving, and two other instances of driving on a suspended license and attempted obstruction of justice. In the felony matters, Respondent, while intoxicated, collided with another vehicle and caused the other driver to suffer a fractured pelvis, bruised kidneys, and severed tendons in her hands. Winfield was sentenced to 30 days in jail, 120 days of periodic imprisonment in jail, and 30 months
probation. In addition to committing the crimes, Winfield failed to report the misdemeanor convictions to the Administrator. In a petition to impose discipline on consent, Winfield was suspended for two years and until further order of the court, with the suspension stayed in its entirety by a two year period of probation.
In In re Rocawich, 95 CH 924, M.R. 13660 (May 30, 1997) the attorney committed two separate acts of retail theft at two different department stores. She had no drug or alcohol problems. Instead, during the period of time in question, she had numerous personal problems, including losing her job and a sick mother, that caused her "extreme stress." Her treating psychologist found she had an adjustment disorder caused by stress and the thefts occurred "during a momentary detachment from reality." The psychologist also stated Rocawich could cope with future stress if she continued her therapy. The court suspended her for two years with the suspension stayed in its entirety by a two year period of probation.
In all of these cases, the attorneys had a psychological condition that contributed to their misconduct. In each case, the attorney was obtaining treatment for that condition, and there was sufficient evidence the attorney did not pose a threat to the public or his/her clients. The crimes involved in these cases were all serious, and some involved bodily harm to the victims. Although some of the cases involved alcohol or drug dependence, others did not. These cases are analogous to the present case because Respondent's psychological condition contributed to his commission of crimes and he is receiving effective treatment. The expert witnesses agree he does not pose a current threat to the public, and will not pose a threat if he completes his treatment. Accordingly, our recommended sanction is consistent with the above cited cases and the agreed prognosis of both the Administrator's and Respondent's medical experts.
Therefore, in view of Respondent's misconduct, and considering the aggravating and mitigating factors and relevant case law, we recommend Respondent be suspended from the practice of law until November 10, 2013, with the suspension stayed in its entirety concurrently with a period of disciplinary probation to run until November 10, 2013, with the following conditions:
Respondent shall successfully complete his current probation imposed in the Colorado criminal proceedings;
Respondent shall continue with and successfully complete the course of treatment in which he is currently involved, namely the treatment program at the Center for Contextual Change, and individual therapy with Dr. Arnold Tobin;
Respondent shall keep the Administrator informed, as requested, of his current treatment, his involvement in such treatment, and any change in the course of treatment;
Respondent shall provide to all the qualified treatment professionals, an appropriate release, authorizing the treating professional to: (1) disclose to the Administrator on at least a quarterly basis information pertaining to the nature of Respondent's condition; (2) promptly report to the Administrator Respondent's failure to comply with any part of an established treatment plan; and (3) respond to any inquiries by the Administrator regarding Respondent's compliance with any established treatment plans;
Respondent shall notify the Administrator in writing within fourteen (14) days of any change in treatment professionals;
Respondent shall attend meetings scheduled by the Commission probation officer or requested by the Administrator. Respondent shall submit quarterly written reports to the Administrator concerning the nature and extent of his compliance with the conditions of probation;
Respondent shall notify the Administrator within fourteen (14) days of any change of address;
Respondent shall comply with the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigation relating to his conduct;
Respondent shall reimburse the Commission for the costs of this proceeding as defined in Supreme Court Rule 773;
Disciplinary probation shall be revoked if Respondent is found to have violated any of the terms of probation described above, and, in the event of such revocation, Respondent shall be suspended for a period of three years and until further order of the Court;
If Respondent successfully completes the term of his probation, the disciplinary probation and his suspension from practicing law shall terminate without being subject to further order of the Court.
Date Entered: December 28, 2011
|Michael C. Greenfield, Chair, Mark D. Manetti and Fran McConnell Williams, Hearing Panel Members.|