Filed February 11, 2014

In re Christopher Edward Stout
Attorney-Respondent

Commission No. 2010PR00135

Synopsis of Hearing Board Report and Recommendation
(February 2014)

This matter arises out of the Administrator's one-count Complaint, filed August 31, 2010, and two-count First Amended Complaint, filed on January 10, 2013. In the Administrator's Complaint and Count I of the Administrator's First Amended Complaint, Respondent was charged with committing criminal acts by possessing and using cannabis, cocaine, crack cocaine, and heroin. In Count II of the Administrator's First Amended Complaint, Respondent was charged with committing the criminal act of battery on two occasions and resisting an officer.

Respondent filed an Answer to the Administrator's Complaint on February 8, 2011, but failed to file an Answer to the Administrator's First Amended Complaint. Given that Respondent's Answer addressed the allegations in Count I of the Administrator's First Amended Complaint, Respondent's Answer stood with respect to that count. Respondent, however, failed to file an Answer that addressed the charges in Count II, and as a consequence, the allegations in Count II were deemed admitted. Respondent failed to appear at his disciplinary hearing.

The Hearing Board, after considering the admissions in Respondent's Answer, the evidence presented at the hearing in this matter, and the allegations that were deemed admitted, found Respondent violated Rule 8.4(a)(3) in Count I and Rule 8.4(b) in Count II of the Administrator's First Amended Complaint. The Hearing Board recommended Respondent be suspended for two years and until further order of the Court.

BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

CHRISTOPHER EDWARD STOUT,

Attorney-Respondent,

No. 6243967.

Commission No. 2010PR00135

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on December 2, 2013, at the Chicago offices of the Attorney Registration and Disciplinary Commission (ARDC) before a Panel of the Hearing Board consisting of Jose A. Lopez, Jr., Chair, Robert M. Karton, and Donald A. Pettis, Sr. Scott Renfroe and Rita Greggio represented the Administrator. Respondent did not appear at the hearing and was not represented by counsel.

PLEADINGS AND PRE-HEARING PROCEEDINGS

On August 31, 2010, the Administrator filed a one-count Complaint against Respondent alleging Respondent committed criminal acts by possessing and using cannabis, cocaine, crack cocaine, and heroin. On February 8, 2011, Respondent filed an Answer to the Complaint, in which he admitted most of the misconduct but denied possessing and using cannabis and crack cocaine.

On January 10, 2013, the Administrator filed a two-count First Amended Complaint. Count I of the First Amended Complaint contained the same allegations as set forth in the August 31, 2010 Complaint. Count II alleged Respondent committed the criminal act of battery

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on two occasions and resisting an officer. Respondent was served with a copy of the First Amended Complaint on January 10, 2013, via regular mail. The First Amended Complaint was sent to Respondent's home address which he had provided to the Commission and was listed on the Master Roll.

Respondent failed to file an answer to the First Amended Complaint within the 21-day time period set forth in Commission Rule 231 and by February 11, 2013, as ordered by the Chair in an order, entered January 7, 2013. Additionally, he failed to participate in the telephonic status conferences on January 7, 2013, and March 8, 2013. Copies of the orders setting the conferences and ordering Respondent to answer the Administrator's First Amended Complaint were mailed to Respondent's addresses listed on the Master Roll, and the Clerk attempted, unsuccessfully, to reach Respondent at the time of the conferences. Consequently, on March 11, 2013, the Chair granted the Administrator's Motion to Deem the Allegations of Count II of the Administrator's First Amended Complaint Admitted.

A hearing in this matter was scheduled for April 24, 2013. Respondent failed to appear at the scheduled hearing, and the Hearing Board continued the hearing in order to give the Administrator additional time to locate and contact Respondent regarding the disciplinary matter pending against him. Respondent failed to participate in the telephonic status conference held on June 17, 2013. He, however, participated in the telephonic pre-hearing conferences on August 26, 2013, and October 7, 2013. Despite his participation in the October 7, 2013 pre-hearing conference at which a final pre-hearing conference was scheduled for October 15, 2013, Respondent failed to participate in the pre-hearing conference on October 15, 2013. Additionally, a copy of the order scheduling the October 15, 2013 pre-hearing conference was mailed to Respondent at his home address, which was listed on the Master Roll and was where

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he had previously requested all mail be sent, and was e-mailed to Respondent at an e-mail address he had provided to the Commission. A hearing was scheduled for December 2, 2013, at the October 15, 2013 pre-hearing conference. A copy of the order scheduling the Hearing for December 2, 2013, was both mailed and e-mailed to Respondent. In addition, the Administrator mailed Respondent a Notice to Appear at Hearing.

ALLEGED MISCONDUCT

Count I of the First Amended Complaint alleges Respondent committed criminal acts, possession and use of cannabis, cocaine, crack cocaine, and heroin, in violation of the Illinois Criminal Code of 1961, sections 720 ILCS 550/4 and 720 ILCS 570/203, and the Florida Criminal Code, sections 893.03 and 893.13, that reflect 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 1990 Illinois Rules of Professional Conduct.1

Count II of the First Amended Complaint alleges Respondent committed criminal acts, battery and resisting an officer without violence, in violation of the Florida Criminal Code, sections 784.03(1)(a)(1) and 843.02, that reflect adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(b) of the 2010 Illinois Rules of Professional Conduct.2

EVIDENCE

Administrator's Exhibits 1 through 3 were received in evidence. (Tr. 8). In addition, the Administrator presented the testimony of Michael Hall, a senior investigator for the ARDC.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 168,

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710 N.E.2d 390 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 484-85, 577 N.E.2d 762 (1991).

Count I

A. Admitted Facts and Additional Evidence Considered

Between at least 2003 and 2006, Respondent resided in Chicago and was employed at various law firms in the Chicago area. (Ans. at par. 1). During this time, the Illinois Criminal Code of 1961, section 720 ILCS 570/402, provided, in part, that it was unlawful for any person knowingly to possess cannabis, cocaine, crack cocaine, and heroin.

Between 2003 and 2005, Respondent possessed and used cannabis approximately five times a week. (Adm. Ex. 1 at 1). On multiple occasions between 2003 and 2006, Respondent possessed and used cocaine and heroin. (Ans. at pars. 5 and 7). Additionally, at some point between 2005 and 2006, Respondent possessed and used crack cocaine. (Adm. Ex. 1 at 1-2).

In May 2006, Respondent moved to North Port, Florida. (Ans. at par. 8). In 2007 and 2008, the Florida Criminal Code, sections 893.03 and 893.13, provided, in part, that it was unlawful for any person to be in actual or constructive possession of heroin and cocaine.

In April 2007, while residing in Florida, Respondent possessed and used heroin in an amount sufficient to cause an overdose; Respondent was hospitalized for at least three hours following the overdose. (Ans. at par. 10; Adm. Ex. 1 at 1). Then, in July 2008, while residing in Florida, Respondent possessed and used cocaine. (Ans. at par. 12).

B. Conclusions

Respondent, in his Answer to Count one of the Administrator's Complaint, admits to possessing and using heroin and cocaine. In accordance with well-settled precedent, Respondent's admissions in his Answer are formal judicial admissions which are binding on

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him. As a consequence, it was unnecessary for the Administrator to present evidence to prove these admitted facts. See In re Estate of Rennick, 181 Ill. 2d 395, 406, 692 N.E.2d 1150 (1998); In re Reu, 2010PR00122, M.R. 25381 (Sept. 17, 2012) (Hearing Bd. at 15); In re Barry, 09 SH 5, M.R. 24439 (Mar. 21, 2011) (Hearing Bd. at 23). The Administrator, however, had to present evidence to prove Respondent possessed and used crack cocaine and cannabis as he denied such conduct in his Answer. After reviewing Dr. David P. Myers' report based on the September 18, 2007 psychological evaluation of Respondent, we are convinced given Respondent's statements to Dr. Myers, which are recorded therein, that he both possessed and used crack cocaine and cannabis as described above. Accordingly, we find the Administrator proved by clear and convincing evidence that Respondent violated Rule 8.4(a)(3).

Count II

A. Admitted Facts and Additional Evidence Considered

As of June 21, 2012, Respondent resided in a house in Port Charlotte, Florida, with his girlfriend, Virginia Underwood. On June 21, 2012, at approximately 9:20 p.m., Respondent and Ms. Underwood were both present in the parking lot of a Tire Kingdom store in Port Charlotte. While standing between two parked cars, they began to argue. During the argument, Respondent, intentionally and against Ms. Underwood's will, placed his hands on Ms. Underwood's shoulders, shook her, and yelled "get in the car."

While conducting a routine patrol of the area, Charlotte County Sheriff's Deputies, Martin Allen and Richard Carley, witnessed Respondent placing his hands on Ms. Underwood's shoulders, shaking her, and yelling "get in the car." Deputy Allen pulled his patrol car into the parking lot, exited the car, and approached Respondent as he was walking back to his car. Deputy Allen told Respondent to stop and to move away from his car. Respondent refused to do so, and, instead, proceeded to get into his car and start the engine. Deputy Allen then opened the

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driver's side door of Respondent's car and ordered him out of the car. Since Respondent refused to do so, Deputy Allen and Deputy Carley physically removed him from the car.

At approximately 9:30 p.m. on June 21, 2012, Deputy Allen returned to his patrol car in order to use his computer to obtain information about Respondent and Ms. Underwood. At that time, Deputy Carley and Deputy William Prummell, Jr. supervised Respondent. Respondent told Deputies Carley and Prummell that he was leaving the scene and began to walk to his car. They ordered Respondent to stop, but he continued to walk to his car. The deputies then physically stopped Respondent from walking to his car. Shortly thereafter, Deputy Allen placed Respondent under arrest for battery, in violation of the Florida Criminal Code, section 784.03(1)(a)(1), and resisting an officer without violence, in violation of the Florida Criminal Code, section 843.02. The Clerk of the Court of Charlotte County caused a criminal case based on these charges to be filed and docketed as State of Florida v. Stout, case number 12-000957M.

Between June 21, 2012, and October 31, 2012, Respondent and Ms. Underwood continued to reside together in Port Charlotte. At approximately 7:00 p.m. on October 31, 2012, Respondent and Ms. Underwood were present at their home in Port Charlotte with an acquaintance named Michael Daniels. At that time, Ms. Underwood was in the shower when she and Respondent began to argue. During this argument, Respondent, intentionally and against Ms. Underwood's will, threw, poured, or squirted bleach in Ms. Underwood's eyes.

After Ms. Underwood exited the shower, dressed herself, and entered a bedroom, Respondent shoved her several times. Ms. Underwood tried to move past Respondent in order to leave the room, but he grabbed her by the belt, and then bit her on her right side. Respondent continued to shove Ms. Underwood, until Mr. Daniels stepped between them and called 911. Respondent's conduct was intentional and against Ms. Underwood's will.

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At approximately 10:14 p.m. on October 31, 2012, Charlotte County Deputy Sheriff J. Murray placed Respondent under arrest for battery, in violation of the Florida Criminal Code, section 784.03(1)(a)(1). The Clerk of the Court of Charlotte County caused a criminal case based on those charges to be filed and docketed as State of Florida v. Stout, case number 12-001664M.

On December 7, 2012, Respondent entered a plea of nolo contendere to the charge of battery in case number 12-001664M. He agreed to participate in a pre-trial diversion program whereby an adjudication of the remaining charges in case number 12-000957M would be withheld pending his completion of a one-year probationary period. The court also ordered Respondent not to have any contact with Ms. Underwood, to undergo a drug test, and to pay costs and fines of $782.

B. Analysis and Conclusions

Based on the Order deeming the allegations of Count II of the Administrator's First Amended Complaint admitted, we find the Administrator proved by clear and convincing evidence that Respondent engaged in the acts and committed the misconduct alleged in the Administrator's First Amended Complaint. Specifically, we find Respondent committed criminal acts, battery and resisting an officer without violence, in violation of the Florida Criminal Code, sections 784.03(1)(a)(1) and 843.02, that reflect adversely on Respondent's honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(b) of the 2010 Illinois Rules of Professional Conduct.

EVIDENCE OFFERED IN AGGRAVATION

On November 1, 2013, Respondent's probation officer filed an affidavit with the County Court of Charlotte County, Florida, informing the court that Respondent had violated two conditions of his probation in case number 12-001664MM. On October 9, 2013, Respondent

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had taken a drug test which indicated he had used marijuana, cocaine, amphetamines, and methamphetamines. In addition, Respondent had failed to pay the cost of supervision as ordered and owed $100.00 in arrears. (Adm. Ex. 2).

On September 26, 2013, Respondent pled nolo contendere to the felony offense of possession of a controlled substance and the misdemeanor offense of driving while license was suspended. The charges stem from Respondent's conduct on May 19, 2013, when he was arrested in Sarasota County for possessing methamphetamines and driving a vehicle while his license was suspended. Respondent was sentenced to an eighteen-month period of probation, with the adjudication of guilt being withheld. (Adm. Ex. 3).

Prior Discipline

Respondent has not been previously disciplined.

RECOMMENDATION

In determining the appropriate sanction, we consider the purposes of the disciplinary process. The goal of these proceedings is not to punish but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). Another factor for consideration is the deterrent value of attorney discipline. In re Discipio, 163 Ill. 2d 515, 528, 645 N.E.2d 906 (1994). We also take into account those circumstances that may mitigate and aggravate the misconduct. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991).

According to the Illinois Supreme Court, we may consider uncharged misconduct in aggravation when it is "similar to the current charges and established by evidence in the record." In re Storment, 203 Ill. 2d 378, 400, 786 N.E.2d 963 (2002). Respondent's recent probation violations and plea of nolo contendere to the felony offense of possession of a controlled

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substance are illustrative of the pattern and practice of misconduct charged in Count I of the Administrator's First Amended Complaint. Therefore, we consider this uncharged misconduct in aggravation. See Storment, 203 Ill. 2d at 400.

Additionally, harsher discipline is warranted where an attorney has engaged in a pattern of misconduct not just an isolated incident. See In re Lewis, 138 Ill. 2d 310, 342-43, 562 N.E.2d 198 (1990). In accordance with the evidence presented in this case, Respondent has engaged in an extensive pattern of criminal misconduct for at least ten years. While we recognize that during this time there may have been brief periods when Respondent abstained from possession and consumption of illegal narcotics, Respondent's recent violations of probation and plea of nolo contendere for possessing methamphetamine demonstrate that this pattern continues and is considered in aggravation.

Respondent's failure to participate in these proceedings is a significant factor in aggravation. The Court has recognized that an attorney's failure to cooperate in his own disciplinary proceedings is indicative of indifference toward and even contempt for disciplinary procedures that demonstrates a complete want of professional responsibility. In re Brody, 65 Ill. 2d 152, 156, 357 N.E.2d 498 (1976).

By failing to appear at the hearing, Respondent forfeited his opportunity to present any evidence in mitigation. We do recognize, however, that Respondent has not been previously disciplined and his misconduct did not relate to a client matter.

The Administrator recommends that Respondent be suspended for two years and until further order of the Court. In support of that recommendation the Administrator relies on In re Bowden, 07 CH 72, M.R. 23676 (May 17, 2010) (suspending Bowden, who had been convicted of possession of cannabis and did not present sufficient evidence of drug treatment and

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rehabilitation, for one year and until further order of the Court ); In re Robertson, 09 CH 61, M.R. 23933 (Sept. 20, 2010) (ordering a two-year suspension and until further order of the Court for committing two domestic batteries, neglecting a client matter, and failing to participate in his disciplinary hearing); In re Applegate, 05 SH 40, M.R. 20961 (Sept. 25, 2006) (suspending Applegate, who did not appear at his disciplinary hearing, for three years and until further order of the Court for misconduct resulting in a conviction for the offense of domestic battery, as well as additional findings of misconduct); In re Tankus, 96 CH 239, M.R. 15557 (Mar. 23, 1999) (imposing an eighteen-month suspension and until further order of the Court on Tankus who had an on-going history of drug abuse and attempts at treatment resulted in relapses); In re Stern, 95 CH 250, M.R. 12813 (Sept. 24, 1996) (finding Stern had converted client funds and neglected client matters and suspending him for eighteen-months and until further order of the Court as he had continued to abuse drugs and alcohol and had not demonstrated sufficient rehabilitation); In re McClellan, 92 CH 337, M.R. 8462 (Sept. 29, 1992)(suspending McClellan, pursuant to a petition to impose discipline on consent, for two years and until further order of the Court for misconduct relating to a conviction for domestic battery and drug possession, as well as conversion of client funds and neglect of a client matter).

After reviewing the cases cited by the Administrator and considering the significant aggravating factors, we recommend Respondent be suspended for two years. Although the misconduct in the above-cited cases is not identical to Respondent's misconduct here, we find these cases instructive in determining the appropriate sanction recommendation. Respondent has repeatedly engaged in serious criminal activity. Similar to the attorneys in Robertson and Applegate, Respondent committed the offense of domestic battery on more than one occasion.

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In addition, like the attorneys in Bowden and McClellan, Respondent possessed and used narcotics and failed to sufficiently demonstrate rehabilitation.

Respondent's recent violations of probation and plea of nolo contendere to additional criminal charges demonstrate his inability or unwillingness to meet professional standards of conduct in the future. Additionally, Respondent's failure to participate in his disciplinary proceedings shows a complete disregard for the disciplinary process. In order to ensure that the public and the legal profession are protected, Respondent should be required to prove his commitment to the profession and his ability to meet professional standards of conduct before he is allowed to resume the practice of law. See In re Houdek, 113 Ill. 2d 323, 327, 497 N.E.2d 1169 (1986). Accordingly, a suspension until further order of the Court is appropriate here.

Having considered the misconduct, the aggravating and mitigating factors, and the relevant case law, we recommend Respondent be suspended for two years and until further order of the Court.

Respectfully Submitted,

Jose A. Lopez, Jr.
Robert M. Karton
Donald A. Pettis, Sr.

CERTIFICATION

I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on February 11, 2014.

Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois

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______________________
1 At the hearing, the Chair granted the Administrator's oral motion to strike any allegations of misconduct under Illinois Supreme Court Rule 770 and Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct, pursuant to In re Karavidas, 2013 IL 115767 (November 15, 2013). Consequently, the only charge that remains in Count I is that Respondent violated Rule 8.4(a)(3).

2 For the same reasons stated in endnote 1, the only charge that remains in Count II is that Respondent violated Rule 8.4(b). Although we recognize that Counsel for the Administrator moved to strike allegations of misconduct under Rule 8.4(a)(5) and not 8.4(d) of the 2010 Rules, the language of Rule 8.4(d) of the 2010 Rules is the same as Rule 8.4(a)(5) of the 1990 Rules. After reviewing the First Amended Complaint in this matter and the Court's decision in Karavidas, we are confident the Administrator intended to strike allegations of misconduct under both Rule 8.4(a)(5) of the 1990 Rules and Rule 8.4(d) of the 2010 Rules.