Filed September 6, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
Commission No. 2010PR00079
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on May 20, 2011, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC"), before a Hearing Board Panel consisting of Lawrence S. Beaumont, Chair, Vincent A. Lavieri, lawyer member, and Bernard Judge, public member. The Administrator was represented by Scott A. Kozlov. Respondent did not appear and no one appeared on his behalf.
On June 18, 2010, the Administrator filed a one-count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleges that Respondent committed a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer. Respondent filed his answer on July 21, 2010. Respondent denied most of the factual allegations and denied the allegations of misconduct.
The Administrator presented expert testimony of Dr. Stafford Henry. The Administrator's Exhibits one through eight were admitted into evidence. Dr. Henry's testimony and the Administrator's evidence were not rebutted.
At all relevant times, the Illinois Criminal Code, at 720 ILCS 5/12-3 provided that it is a misdemeanor for any person to intentionally or knowingly without legal justification and by any means, 1) cause bodily harm to an individual or 2) make physical contact of an insulting or provoking nature with an individual. On September 30, 2008, Respondent was home with his two children, a daughter, L.A., who was then three years old, and a daughter, K.A., who was then seven years old. Respondent's then-wife, Debra Alexander ("Debra") was out for the evening at a neighbor's house. (Resp. Ans.)
On September 30, 2008, at approximately 8:30 p.m., Respondent told K.A. to go to bed, and K.A. began having a temper tantrum. Respondent and K.A. then began arguing, and, at some point during that argument, Respondent pushed K.A., causing her to fall and break her right wrist. On September 30, 2008, at approximately 11:00 p.m., Debra arrived home, at which time K.A. was in bed. At approximately 3:00 a.m. on October 1, 2008, K.A. told Debra that her wrist hurt. Several hours later, Respondent and Debra took K.A. to K.A.'s pediatrician, Dr. Kathleen Lockhardt, who directed them to the emergency room at Good Shepherd Hospital in Barrington, Illinois. (Adm. Ex. 4).
On October 1, 2008, Respondent, Debra, and K.A. then went to Good Shepherd Hospital; Debra told hospital personnel that she and her children were in need of protection from Respondent. Hospital personnel then contacted the Barrington Police. Later that morning, the Barrington Police arrested Respondent at Good Shepherd Hospital. Respondent was charged
with felony aggravated battery of a child. The matter was docketed as People v. Alexander, case number 08 CF 4159 (Circuit Court of Cook County). (Adm. Ex. 1, 2, 4).
On June 5, 2009, following a bench trial, Respondent was found guilty of one count of misdemeanor battery, a lesser-included offense of aggravated battery to a child. The court sentenced Respondent to 24 months of supervision and ordered him to attend counseling with Dr. Richard Cohen, a clinical psychologist, until otherwise directed by the probation department. (Adm. Exs. 3, 4, 5).
Expert Witness Testimony
Dr. Stafford C. Henry, M.D.
After a detailed description of Dr. Henry's professional background, the Chair qualified Dr. Henry as an expert witness in the fields of forensic psychiatry, general psychiatry and addiction psychiatry. Dr. Henry stated that he met with Respondent on a number of occasions to conduct an evaluation. The initial evaluation occurred on December 3 and 9, 2009. Dr. Henry stated that the purpose of his evaluation was to determine whether there was an underlying psychiatric condition that caused or contributed to the circumstances surrounding Respondent's criminal charges. In addition, Dr. Henry evaluated Respondent's ability to practice law and screened for the presence of substance abuse. (Adm. Ex. 6; Tr. 9-17).
In preparation of Respondent's evaluation, Dr. Henry reviewed all relevant information made available to him. Dr. Henry reviewed documents regarding observations of Respondent's parenting skills, as well as a manuscript authored by Respondent entitled "Justocracy." Dr. Henry also reviewed Respondent's October 2009 sworn statement provided before the Commission; pleadings in connection with his criminal trial; a partial transcript and court file
relative to his Lake County case; and correspondence between Respondent and the Commission. (Tr. 18).
Dr. Henry stated that Respondent received a brief course of treatment while he was a student at the University of California at Los Angeles. At the time Respondent was initially evaluated by Dr. Henry in December 2009, Respondent was also engaged in individual treatment with Dr. Richard Cohen. Dr. Henry stated that he contacted Dr. Cohen, who provided Dr. Henry with his impressions of Respondent. (Tr. 19).
Dr. Henry stated that he met with Respondent for four hours over two sessions. As a result of his December 2009 evaluation, Dr. Henry formulated four diagnoses regarding Respondent's symptoms. Dr. Henry opined that Respondent suffered from depressive disorder, Asperger's syndrome, obsessive-compulsive personality disorder and personality disorder not otherwise specified with paranoid features. Dr. Henry briefly explained what each of these disorders entails. (Adm. Ex. 8; Tr. 20-24).
As a result of the 2009 evaluation, Dr. Henry was of the opinion that Respondent should remain in treatment with Dr. Cohen and that from a mental health perspective, there would be no reason to believe that Respondent could not consistently adhere to the Rules of Professional Conduct. (Adm. Ex. 8; Tr. 24).
On December 29, 2010, Dr. Henry met with Respondent for three and a half hours for the purpose of re-evaluating Respondent. Dr. Henry testified that Respondent's mental and physical condition had deteriorated since Dr. Henry last saw Respondent. Dr. Henry stated that Respondent had lost weight, he was very agitated and his paranoia and delusions were marked and striking. For example, Respondent told Dr. Henry that "he was certain there was a feed, not in Dr. Henry's examining room but in the next examining room, that was being fed to the FBI."
Further, Respondent told Dr. Henry that while he slept, people were tampering with his brain. Respondent also thought that he was a target of a coordinated conspiracy which was being orchestrated by his ex-wife, her attorneys, the FBI, the police, the Lake County justice system and the Lake County police. Finally, Respondent thought that the FBI was intercepting his messages and telephone calls on his mobile phone. (Adm. Ex. 7; Tr. 24-26).
As a result of his 2010 reevaluation, Dr. Henry remained of the opinion that Respondent still suffered from depressive disorder, obsessive-compulsive disorder and Asperger's syndrome. Given the exacerbation of his paranoia in combination with his overall deterioration, Dr. Henry opined that Respondent was manifesting symptoms of paranoid schizophrenia. Dr. Henry also testified that Respondent had an unwavering belief that he was being targeted and victimized by those identified in the preceding paragraph. Respondent further believed that Dr. Cohen and Dr. Henry were part of a conspiracy against him. (Adm. Ex. 7; Tr. 26-27).
Dr. Henry was of the opinion that Respondent would not be able to consistently adhere to the Rules of Professional Conduct. As a result of his reevaluation, Dr. Henry made several treatment recommendations for Respondent. First, Dr. Henry recommended that Respondent apply for government financial assistance. Second, Dr. Henry recommended that Respondent be given psychotropic and anti-psychotic medication as well as undergo psychotherapy. Finally, Dr. Henry recommended that Respondent be placed under the care of a primary care physician. (Adm. Ex. 7; Tr. 28-39).
Dr. Henry could not say for sure whether Respondent voiced an opposition to taking psychotropic medication during his evaluations. However, Dr. Henry stated that Respondent had "absolutely no insight as to how sick he was." Dr. Henry opined that Respondent would be quite resistant to taking psychotropic medication. Dr. Henry discussed two potential risks resulting
from Respondent's failure to take psychotropic medication. First, Respondent's condition could worsen. Second, Respondent might be prone to act on what he perceived to be threats (although other than the incident discussed herein, Respondent does not have a noteworthy history of violence, so this risk is more hypothetical). (Tr. 29-31).
Dr. Henry opined that there was a causal connection between Respondent's psychiatric condition and the September 30, 2008 battery of his daughter. Dr. Henry stated that the cause of the incident primarily related to Respondent's Asperger's syndrome. Finally, Dr. Henry testified to a reasonable degree of medical and psychiatric certainty that Respondent represents a phenomenon known as the downward drift hypothesis, a phenomenon in which individuals with paranoid schizophrenia become ostracized and marginalized, and over time, the person worsens and he or she psychiatrically deteriorates. (Tr. 31-33).
Respondent has no 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 Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). It is the responsibility of the Hearing Panel to determine the credibility of the witnesses, weigh conflicting testimony, draw reasonable inferences, and make factual findings based upon all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 308 (1993). With the above principles in mind and after careful consideration of the expert testimony, exhibits and Respondent's Answer to Complaint, we make the following findings.
Respondent is charged with:
Commission of a criminal act that reflects adversely on his 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 (1990), by virtue of being found guilty of battery pursuant to 720 ILCS 5/12-3;
Engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990); and
Engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.
Based on the undisputed evidence, we find that the Administrator met his burden of proof by clear and convincing evidence that Respondent engaged in the misconduct alleged in the Complaint. The evidence shows that Respondent was found guilty of one count of misdemeanor battery, a lesser included offense of aggravated battery to a child. We find, and it follows, that Respondent's criminal act is prejudicial to the administration of justice and brings the legal profession into disrepute.
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. In re Howard, 188 Ill. 2d 423, 434, 721 N.E.2d 1126 (1999). We should not recommend a sanction which will benefit neither the public nor the legal profession. In re Leonard, 64 Ill. 2d 398, 406, 356 N.E.2d 62 (1976). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 298, 583 N.E.2d 526 (1991).
The Administrator recommends that Respondent be suspended from the practice of law for one year and until further order of the court. In support of his recommendation, the Administrator offered the following cases: In re Ebel, 08 CH 73, M.R. 23127 (Sept. 22, 2009)
(By consent, the attorney was suspended for six months after pleading guilty to aggravated domestic battery for shaking his newborn, causing a brain injury. The attorney was diagnosed with acute stress disorder and major depressive disorder. The attorney underwent counseling and maintains his prescription drug regimen.); In re Honore, 08 CH 60, M.R. 23222 (Sept. 22, 2009) (By consent, attorney was suspended from the practice of law for one year and until further order of the Court. The attorney was convicted of disorderly conduct in relation to her conduct inside and outside of a courtroom, in which she made a threatening statement regarding a circuit court judge. The attorney also engaged in the unauthorized practice of law. The attorney was diagnosed with bipolar disorder. She received treatment intermittently but it was recommended that she receive further treatment and obtain a period of psychiatric stability before presenting for a fitness evaluation to practice law.); and In re Lutz, 01 CH 40, M.R. 17955 (Mar. 22, 2002) (The attorney was arrested for domestic battery, aggravated battery and resisting a peace officer. The attorney was evaluated for mental health and substance abuse treatment. At the time of discipline, the attorney was not engaged in treatment. The attorney was suspended from the practice of law for one year and until further order of Court.)
While every case is unique, in addition to the precedent offered by the Administrator, we find the following cases instructive in determining the proper recommendation for a sanction:
In In re Czarnik, 07 CH 15, M.R. 22203 (Mar. 17, 2008), the attorney was suspended for one year and until further order of court for criminal conduct relating to his conviction for retail theft. At the time of the criminal conduct he was suffering from untreated bipolar disorder. Respondent was found to be unfit to practice law and it was recommended that he immediately seek psychiatric treatment and that he present for a follow-up fitness-for-duty evaluation prior to his re-entering the active practice of law.
In In re Lange, 08 CH 40, M.R. 22739 (Jan. 20, 2009), the attorney pled guilty to two separate offenses for driving under the influence and a third offense of trespass and criminal damage to property, which was alcohol related. The respondent was diagnosed with alcohol dependency, anxiety disorder, depressive disorder and personality disorder. At the time of discipline, the respondent was not involved in treatment. By consent and Court approval, the respondent was suspended from the practice of law for one year and until further order of the Court.
Along with the above stated case law and proven misconduct, we consider factors of mitigation and aggravation. In mitigation, Respondent has no prior discipline. We also consider Dr. Henry's testimony that Respondent's misconduct was primarily due to his mental disorders. In aggravation, we consider Respondent's failure to appear and participate in these proceedings.
Based on the proven misconduct, the expert witness testimony regarding Respondent's state of mental health, precedent and factors of mitigation and aggravation, we recommend that Respondent be suspended from the practice of law for one year and until further order of the Court.
Date Entered: September 6, 2011
|Lawrence S. Beaumont, Chair, with Vincent A. Lavieri and Bernard Judge, Hearing Panel Members.|