BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

MICHAEL THOMAS HERBST,

Attorney-Respondent,

No. 6294319.

Commission No. 2017PR00091

FILED --- August 28, 2017

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Wendy J. Muchman, pursuant to Supreme Court Rule 761(c) and 753 complains of Respondent, Michael Thomas Herbst, who was licensed to practice law in the State of Illinois on November 8, 2007, and alleges that Respondent has engaged in the following conduct which subjects him to discipline pursuant to Supreme Court Rule 770:

Count 1
Unauthorized Videotaping

1. Between June 2010 and September 30, 2016, Respondent was employed as an associate at the law firm of "John Doe" LLC (hereinafter, "the firm"). From August, 2011 to the present, J. T. was also an associate at the firm.

2. Prior to the time that J.T. started his employment at the firm, Respondent and J.T. knew each other through mutual friends. In fact, Respondent introduced J.T. to the firm's hiring partner, John Doe, for possible employment at the firm.

3. The firm's practice is concentrated in the area of commercial litigation but the firm's dress code is casual, allowing for the attorneys to often wear casual clothing to the office. However, when an attorney is meeting with a client, attending a deposition or handling a court appearance, appropriate professional attire is required.

4. As a result of the firm's causal dress code practices, attorneys employed at the firm often have a change of clothes that is appropriate courtroom attire in their offices, and they change clothes in their offices before leaving for court, a deposition or a client meeting.

5. Between June and September 2016, on at least 20 different occasions, when Respondent knew that J.T. would be changing clothes in his office, Respondent placed a usb video flash drive in a hidden location in J.T.'s office without J.T.'s knowledge or consent. Using the usb flash drive, Respondent videotaped J.T. in various states of undress while J.T. was changing clothes. On each of these occasions, Respondent subsequently retrieved the device, and watched the videos for his own sexual and emotional gratification. Whenever Respondent knew J.T. had a reason to be changing clothes in his office, he would then replace the usb video flash drive into J.T.'s office.

6. At no time between June and September 2016, did J.T. know or consent to this videotaping of him changing clothes in his office. J.T. however, did notice that Respondent was spending an unusual amount of time in and around J.T.'s office and became concerned about it.

7. On September 27, 2016, J.T. found the hidden camera USB video flash drive located in the inbox in his office behind his desk.

8. On September 27, 2016, J.T. placed the device in his computer to view its contents. The next day, J.T. located videos sequenced 11-28 on the usb video flash drive. The videos were typically a half-hour long showing J.T. in states of undress and changing his clothes.

9. On September 30, 2016, J.T. informed John Doe of the above incidents and unauthorized videotaping. John Doe talked to Respondent, who then resigned from the firm.

10. On November 30, 2016, the Cook County State's attorney's office indicted Respondent on 2 counts of felony unauthorized videotaping, in violation of 720 ILCS Act 5, Section 26-4(a). People of the State of Illinois v. Michael Herbst, 16CR17557.

11. At all times alleged in this complaint it was a crime for "any person to knowingly make a video record or transmit live video of another person without that person's consent in a changing room…" 720 ILCS Act 5 Section 26-4(a).

12. On May 4, 2017, Respondent pled guilty to one count of unauthorized videotaping, reduced from a felony charge to a misdemeanor.

13. On May 4, 2016, Respondent was sentenced to reporting probation for two years with a scheduled termination date of May 4, 2019, with 40 hours of community service, a no-contact order with J.T., and restitution to the firm in the sum of $6095.50.

14. As a result of the conduct described above, Respondent has engaged in the following misconduct:

  1. committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, by conduct including unauthorized videotaping of J.T. without J.T.'s knowledge or consent while J.T. was changing clothes in his law office between June 2016 and September 2016 in violation of ILCS 720 Act 5 section 26-4(a) in violation of Rule 8.4(b) of the Illinois Rules of Professional Conduct (2010).

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.

Wendy J. Muchman
Counsel for Administrator
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601
Telephone: (312) 565-2600
Email: ARDCeService@iardc.org
Email: wmuchman@iardc.org

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Wendy J. Muchman