Filed July 23, 2015
In re Paul M. Weiss
Commission No. 08 CH 116
Synopsis of Review Board Report and Recommendation
The Administrator filed a seven count complaint against Respondent. Counts I, II, III, IV and VII alleged that Respondent engaged in misconduct with respect to five female employees of Respondent's law firm and charged Respondent with engaging in criminal acts that reflect adversely on his fitness as a lawyer, namely assault and battery with respect to all five women, unlawful restraint with respect to three women, and telephone harassment with respect to three women. In Counts V and VI, Respondent was charged with engaging in the criminal acts of public indecency and disorderly conduct by exposing himself to a co-resident of his apartment building and to a woman walking on a public street.
The Hearing Board determined that the legal defenses asserted by Respondent were not a bar to any of the charges against Respondent. After assessing the credibility of the witnesses and reviewing the evidence, the Hearing Board found that Respondent engaged in misconduct with respect to four of his employees, his neighbor and the woman walking on a public street. The Hearing Board recommended that Respondent be suspended for thirty months.
Upon review, the Administrator asked that Respondent be disbarred. The Respondent argued the charges against him should be dismissed because the findings were against the manifest weight of the evidence; the requirements of 1990 Rule 8.4(a)(9)(B) were improperly circumvented; there could be no violations of 8.4(a)(3) because Respondent was not convicted; and that the use of information that was subject to expungement deprived him of due process.
The Review Board found Respondent's arguments to be without merit. The Review Board concluded that the findings of the Hearing Board were not against the manifest weight of the evidence. The Review Board affirmed the findings of misconduct of the Hearing Board. In determining a sanction recommendation, the Review Board considered that Respondent had been previously disciplined for engaging in inappropriate sexual misconduct. After considering the precedent, the factors in mitigation and aggravation, and the likelihood that Respondent would reoffend, a majority of the Review Board recommended that Respondent be suspended for thirty months and until further order of the Court. One Review Board member dissented with respect to the sanction recommendation and recommended that Respondent be disbarred.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
PAUL M. WEISS,
Commission No. 08 CH 116
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator charged Respondent with seven counts of criminal misconduct involving seven different women. Six of the counts occurred from 1999 to 2003, and the seventh during 2010. The activity included criminal acts of assault, battery, unlawful restraint, telephone harassment, public indecency, and disorderly conduct, that would reflect adversely on the Respondent's honesty, trustworthiness, or fitness as a lawyer.
The Hearing Board concluded Respondent engaged in most of the misconduct alleged, in violation of Rules 8.4(a)(3) (1990) and 8.4(b) (2010) and recommended suspension from the practice of law for 30 months.
The Administrator filed exceptions, asserting that Respondent should be disbarred. The Respondent asserts the charges should have been dismissed because: the findings were against the manifest weight of the evidence; the requirements of 1990 Rule 8.4(a)(9)(B) were circumvented by "recasting" charges of sexual harassment as violations of the Criminal Code; there were no convictions thus there could be no violation of 8.4(a)(3); and the use of
information that was subject to expungement deprived him of due process. Respondent further maintains that the Hearing Board's recommendation of a 30 month suspension is unduly harsh.
We find the Respondent's position to be without merit. We affirm the Hearing Board's conclusions in all respects save one -- the appropriate sanction. We believe that Respondent is at significant risk of reoffending given his complete and total denial of a long-standing pattern of inappropriate sexual behavior, including similar prior discipline for lewd behavior, his seeming inability to control his behavior, and his penchant for vilifying his victims. The majority would impose a 30 month suspension and until further order of the Court. The dissent would disbar Respondent.
I. THE HEARING BOARD'S FACTUAL FINDINGS ARE NOT
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
"A factual finding is against the weight of the evidence where the opposite conclusion is clearly evident or where the finding appears to be unreasonable, arbitrary or not based on the evidence." In re Fishman, 01CH109 (Review Bd., March 31, 2004), Administrators petition for leave to file exceptions allowed and sanction increased, No. MR 19462 (Sept 24, 2004). None of these requirements have been met by Respondent who bears the burden on this issue. In re Timpone, 208 Ill 2d 371, 380 (2004). The majority of the crucial evidence was testimonial in nature and required the Hearing Board to judge the credibility of numerous witnesses including Respondent. In such cases "credibility determinations rest with the Hearing Board" to whom great deference is owed. Timpone at 383. The Hearing Board thoughtfully reviewed the evidence, rejecting some charges for insufficient evidence and finding violations on others. Their findings, which are supported by the evidence, are summarized below.
Count I involved Rachel Barker (Barker), a file clerk and legal assistant who worked at Respondent's law firm from February 5, 2002, to October 10, 2003. Count I charged
Respondent with violating 1990 Rule 8.4(a)(3) by committing battery, assault, unlawful restraint, and telephone harassment. Ms. Barker was 19 years old at the time. She testified to an incident after attending a Bulls game with Respondent, to improper phone calls to her, including during the evenings or weekends, and to his improperly touching her. Respondent acknowledged having phone conversations with Ms. Barker, but denied any improprieties. Evidence was also introduced of 2003 written statements attributable to Ms. Barker, given to Respondent's attorneys. The Hearing Board deemed Barker a "very credible witness" with no "motive to lie" (R.C3521), and found Respondent violated 1990 Rule 8.4(a)(3) for the conduct alleged (R.C3524).
Count II involved alleged incidents with Tanja Samardjiza, an associate attorney with Respondent's law firm from February 26, 2001, until her discharge on December 26, 2002. The Hearing Board found insufficient proof to support allegations of battery and assault, in violation of Rule 8.4(a)(3), and recommended that Count II be dismissed. (R.C3529).
Count III involved Respondent's alleged conduct toward Krystle White, the 16-year-old sister of Ms. Barker (identified in Count I). Ms. White worked as an office aide at Respondent's law firm during the summer of 2002. She had a baby at the time, lived with her boyfriend's parents, and had never worked in an office before. On the first day she wore a skirt to work, she claimed Respondent "rubbed his hand across her butt and thigh." Respondent denied this. Deeming White a "credible witness," and despite the "brevity" of the touching incident, the Hearing Board found Respondent violated 1990 Rule 8.4(a)(3) by committing a battery, but declared the proofs insufficient to support a finding that he had committed assault. (R.C3532).
Count IV involved Stephanie Newman, a paralegal at Respondent's firm working there between 1991 and 2001. She testified to a groping incident by Respondent, and of an incident where Respondent took off his pants in her presence at the office and rubbed his crotch suggestively before changing into his suit pants. She further testified to incidents of inappropriate comments. Respondent admitted he occasionally changed into his suit in the office, agreed that this was not a good idea, but denied the remaining conduct. The Hearing Board declared Newman "impressed us as being very frank in her manner and in her own self- appraisement." In Count IV, the Hearing Board found Respondent violated 1990 Rule 8.4(a)(3) by committing the criminal offenses of assault and battery. (R.C3542)
Count V charged Respondent with violating 1990 Rule 8.4(a)(3) by committing acts constituting public indecency and disorderly conduct, in repeated incidents with Molly Kelly. During 1999 and 2000, Ms. Kelly lived on the third floor of a brownstone building in Chicago. Respondent and his wife occupied the second-floor apartment. On several occasions, Respondent would open the door as Ms. Kelly was walking down the stairs, tell Ms. Kelly he was not dressed, and ask if she would throw his daily newspaper up to him. After several occasions, she came to believe Respondent was intentionally exposing himself, and asked him to stop. On one occasion after that, she testified Respondent "just opened the door and exposed himself completely." Respondent denied opening the door wide enough to be seen naked. The Hearing Board found Kelly a credible witness, accepted her conclusions and impressions with regard to Respondent's behavior, and found Respondent's conduct violated Rule 8.4(a)(3) for the crimes of public indecency and disorderly conduct. (R.C3547-49)
Count VI involved an incident with Reyna Castellanos outside the Metra train station in Deerfield on July 8, 2003. Ms. Castellanos testified that after being asked to walk up
to the passenger side of Respondent's car, she saw the zipper on Respondent's pants undone with his penis exposed. Respondent claimed he was wearing gym shorts, and that "his package" could have "fallen out a little bit." Respondent was charged with disorderly conduct as a municipal ordinance violation, and received supervision after a stipulated bench trial. The Hearing Board found Respondent committed public indecency and disorderly conduct in violation of 1990 Rule 8.4(a)(3), but that the Administrator did not prove he violated Rule 8.4(a)(5) (conduct prejudicial to the administration of justice). (R.C3560-61) The Hearing Board rejected Respondent's arguments that expungement of an arrest or conviction bars disciplinary charges, or that the Administrator only obtained this information due to the wrongful release of expunged records, or some "bad motive" in obtaining these records. (R.C3557-38)
Count VII, the only count arising under the 2010 Rules, involved Angela Aneiros, an attorney at Respondent's law firm during March 2010, and conduct toward her that year. She reported frequently and increasingly aggressive sexual suggestions and touching by Respondent. In turn Respondent denied touching her or talking "dirty" to her. She specifically detailed an incident on December 10, 2010, while in the elevator with the Respondent, and later while both were walking to the train station. Respondent offered the testimony of a building security officer that nothing looked amiss when the two of them alighted from the elevator that afternoon. The Hearing Board determined "Aneiros the more credible witness" with no "sufficient motivation to lie." (R.C3580) The Hearing Board found Respondent violated Rule 8.4(b) by committing battery, assault, unlawful restraint and telephone harassment.
II. THE HEARING BOARD APPLIED THE LAW CORRECTLY.
The Administrator charged Respondent under a seven-count fourth amended complaint with violating the Rules of Professional Conduct by engaging in inappropriate sexual
behavior involving seven different women. The Hearing Board rejected Respondent's contention that a criminal "conviction" was a necessary predicate to finding Respondent committed a criminal "act" in violation of 1990 Rule 8.4(a)(3), reasoning the attorney is being disciplined for the underlying conduct, not for a conviction. (R.C3519) The Board made the same determination as to 2010 Rule 8.4(b) (Count VII). The Hearing Board also rejected Respondent's contention that the conduct as alleged actually amounts to a discriminatory act - sexual harassment - such that the affirmative bar of 1990 Rule 8.4(a)(9)(B) prevents disciplinary action because no court or administrative agency ever first found the respondent had engaged in an unlawful discriminatory act. We agree with the Hearing Board's findings as to these matters.
A. The Administrator did not Circumvent Former Rule
by Recasting Charges of Sexual Harassment as Criminal Conduct.
In re-asserting Counts I, III, IV and VI should have been dismissed, Respondent cites 1993 amended Rule 8.4(a)(9)(A) and (B), that a lawyer shall not:
(9)(A) violate a Federal, State or local statute or ordinance that prohibits discrimination based on ** by conduct that reflects adversely on the lawyer's fitness as a lawyer **
(B) no complaint of professional misconduct based on an unlawfully discrimination act, pursuant to (9)(A) of this rule, may be brought until the court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawfully discrimination act, and that the determination of the court or administrative agency has become final and enforceable **
R.P.C.8.4(a) (amended 10-15-93)
Respondent asserts that Rule 9(A) "specifies that an unlawfully discriminatory act includes sexual harassment." (Resp. Brief, at 9) He claims a "plain reading" of the allegations here "establishes that sexual harassment is exactly what was alleged." Resp. Brief, at 9) Respondent concludes this by stating, "The gravamen of the Administrator's charges is clearly based on alleged conduct consulting sexual harassment. Given that there was never any final
determination of sexual harassment by a court or administrative agency against Respondent in relation to those former employees as required by Rule 8.4(9)(b), those Counts should have been dismissed." (Resp. Brief, at 13).
Rule 8.4(a)(9)(B) specifically prohibits "discrimination" based on certain factors, including sex. Assault and battery, as well as the other charges against Respondent are not discrimination but rather criminal acts. These acts bring the Profession into disrepute.
The Hearing Board correctly ruled the Administrator did not charge Respondent with a violation of Rule 8.4(a)(9)(A), which would indeed be improper without a final court or agency determination of discriminatory conduct. Rather, the Administrator charged Respondent with committing criminal acts of a sexual nature in violation of Rule 8.4(a)(3) which would bring the profession in disrepute. The Hearing Board considered the two as being "distinct in purpose and application," and therefore the charge here did not constitute an attempt to circumvent any requirement under Rule 8.4(a)(9)(A) or (B). (R.C3518). The findings of the Hearing Board are correct.
B. A Criminal Conviction is Not Required to Find
Violated the Rules by Committing a Criminal Act.
Respondent argues a criminal "conviction" against him is a necessary predicate to finding that he committed a criminal act for purposes of former Rule 8.4(a)(3) or current Rule8.4(b). Respondent declares this Board has "specifically denounced the Administrator's practice of bringing disciplinary charges for purported criminal conduct that does not involve a criminal conviction," citing In re Betts-Gaston, 08 CH 5 (Review Bd., July 18, 2012) at 24. There was no such denunciation. In affirming Betts-Gaston, the Supreme Court did not address the issue of whether there was a requirement of a conviction. The Review Board opinion in Betts-Gaston made clear that its conclusion on this issue had no bearing on the sanction, it being
a very minor issue in a case with significant and substantial rules violations. Further, two members of this Review Board who served on the Panel which decided Betts-Gaston, now, on further reflection, believe that the conclusion dealing with the requirements of a criminal conviction was incorrect. We also reject Respondent's argument that somehow In re Karavidas, 2013 IL 11567, bars the findings of misconduct. Karavidas is not applicable because that case makes it clear that while not every instance of purported bad behavior by an attorney outside the practice of law is an appropriate subject of a disciplinary prosecution, violations of specific Rules are an appropriate subject for discipline. Here specific violations of the Rules were charged.
An attorney need not be convicted of, or charged with, a criminal offense in order to have violated Rule 8.4(a)(3). Illinois disciplinary law establishes that a criminal conviction is not a condition precedent to a finding that Rule 8.4(a)(3) has been violated. The Supreme Court has in fact already stated:
It is not the conviction of a crime which justifies discipline, but the commission of the act. The attorney being disciplined not because of his conviction but because of the conduct. This court has held that "it is not necessary that his misconduct should subject him to indictment, or that if the misconduct charged another to a crime, he should be prosecuted and convicted before disbarment."
Even the formal acquittal of a criminal charge does not automatically bar a disciplinary proceeding based on the attorney's conduct upon which the criminal charge was founded.
In re Rolley, 121 Ill.2d 222, 233 (1988)(citations omitted).
In addition, our Supreme Court reasoned, in In re Ettinger, 128 Ill.2d 351, 265 (1989) (citations omitted):
It is a well-established principle that disciplinary proceeds are sui generis based upon the supreme court's inherent power to regulate the practice of law. The primary purpose of a disciplinary proceeding is to protect the public from unqualified or unethical
practitioners. The Supreme Court alone is vested with the responsibility of admitting and disciplining attorneys. As such, disciplinary proceedings are neither civil nor criminal in nature and are governed solely by this Court's rules and decisions.
The Hearing Board also cited a recent Review Board decision affirming a determination that the respondent, as assistant state's attorney, committed aggravated criminal sexual abuse in violation of Rule 8.4(a)(3) even though not convicted of the offense. In re Hogan, 2011PR00047 (Review Bd., June 26, 2013), approved and confirmed, No. M.R. 26266 (Nov. 20, 2013). The Hearing Board found the respondent's violation of a criminal statute reflected adversely on his trustworthiness and fitness to practice law, and consequently concluded respondent violated Rule 8.4(b). The Hearing Board also noted the respondent used his position of trust and authority to take advantage of vulnerable girls in that matter. Acts or conduct which would constitute the violation of a criminal statute which then reflected adversely on an attorney's trustworthiness and fitness to practice law that would constitute the violation of Rule 8.4(b), or Rule 8.4(e)(3). See also, In re Clark, 97 CH 111 (Review Bd., July 30, 2001), Administrator's petition for leave to file exceptions allowed, No. M.R. 17713 (Nov. 29, 2001) (Rule 8.4(a)(3) violated without a criminal conviction where underlying conduct affected the attorney's ability to practice law). And finally, it is difficult to imagine that the drafters of the Rules did not understand the difference between the words "conviction" and "act" and that they really meant "conviction" when they used the word "act". We decline to use our imagination in that regard.
C. Due Process Was Not Denied by Charging Violations
Conduct in Matters That Were Subject to Expungement.
Respondent claims he was denied due process of law when the Administrator "disregarded" Illinois expungement laws, both in relation to his disorderly conduct ticket in the Castellanos matter (Count VI), and in relation to the Newman file, closed in 2002 but reopened
in 2010 (Count IV). Both claims are without merit. With respect to Castellanos, a police officer who had investigated the disorderly conduct case gave the ARDC information about the incident unaware that there had been an expungement order in that case. Several witnesses also testified about the underlying conduct. With respect to the Newman mater, a computer error prevented the expungement of an earlier investigation of the Respondent. However, in the course of Respondent's discovery, other witnesses referred to Respondent's conduct toward Newman.
Due process affords the respondent a right to notice of the allegations against him and a fair opportunity to defend, and Respondent has not identified any unfairness or inability to defend himself here. An expungement order itself does not of itself bar the Administrator from filing charges based on the incident, In re Hayes, 03 SH 113 (Review Board, June 6, 2006) at 8. See also, In re Thomas, 2012 IL 113035, Section 100-104, where the Court held the Administrator has broad discretion whether to reopen a closed investigation, where the attorney may be engaged in a pattern of misconduct making the previous investigation relevant again.
Indeed in In re Hayes, the Review Board determined the fact an attorney had the records of his or her arrest expunged "does not preclude discipline based on the underlying conduct." (Review Board, p. 8). Courts in other jurisdictions have in fact upheld discipline for attorneys despite expunged underlying convictions. In re Yarno, 713 So.2d 451 (La. 1998); In re Couser, 596 P.2d 26 (Ariz. 1979); In re Meaden, 628 N.W.2d 129 (Minn. 2001). Indeed too, in In re Thomas, 2012 IL 113035, Sections 100-111, the Supreme Court, though not in an expungement case, nevertheless examined Rule 54 and opined that a closure letter confers no substantive rights on an attorney, nor does it prevent the Administrator from re-examining the alleged misconduct in the future; that is wholly within the Administrator's discretion. While Rule 778 sets forth for the procedure and timing for expungement of an ARDC investigation
filed, it does not provide that the conduct that is the subject of a closed investigation is now forever protected against reexamination. In In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010) at 11, Respondent's petition for leave to file exceptions denied, No. M.R. 24030 (Sept. 22, 2010), the Review Board determined Rule 778(b) is strictly an administrative rule, not intended to foreclose or terminate the Administrator's ability to charge an attorney.
III. A SUSPENSION OF THIRTY MONTHS AND UNTIL
FURTHER ORDER OF COURT IS APPROPRIATE.
The Hearing Board concluded the Respondent's conduct "resulted from his selfish motive of sexual gratification, there was a pattern of misconduct over time," and he "took advantage of vulnerable employees who were young, self-supporting and dependent upon him for their livelihood". Precedent, common sense, and regard for the public and the legal profession support a suspension of thirty months and until further order of the Court.
The Hearing Board correctly considered his prior discipline in aggravation. Factors in aggravation revealed that, in 1993, while 26 years old, Respondent attended a high school girls' volleyball game where he first saw a 17 year old girl he did not previously know. In November and December of 1993, Respondent made at least six obscene telephone calls to the girl, resulting in his arrest in February 1994 and conviction in March 1994 for telephone harassment. In addition, between November 1993 and April 1994, Respondent made six to eight obscene phone calls to another woman, a fellow associate working with him at a Chicago law firm. From December of 1994 to January 1995, while on supervision for the telephone harassment conviction, Respondent made at least four obscene phone calls to a woman who had been a paralegal at the firm where he worked. During March 1993, again in the Fall of 1993, and in September 1994, Respondent made a number of obscene phone calls to yet another woman.
Prior misconduct weighs most heavily in aggravation when it is similar to present misconduct. The fact an attorney had been previously discipline amounts to a serious aggravating factor, especially if previously disciplined for similar conduct. In re Gerstein, 99 SH 1 (Hearing Bd., Dec. 14, 2001), at 27, affirmed in part (Review Bd., Aug. 12, 2002), Respondent's petition for leave to file exceptions denied, No. M.R. 18377 (Nov. 26, 2002) (prior discipline for similar misconduct deemed an additional aggravating factor). The evidence shows that Respondent's "chronic problems with sexually-inappropriate behavior" have escalated, despite the fact he was previously arrested, criminally convicted, and professionally disciplined in the 1990's, and despite the fact he apparently underwent some sort of therapy. Respondent's attempts to "paint himself as a victim of unscrupulous liars" and "extortionists" show that he is at risk of continuing this behavior, and will not rehabilitate himself. In re Houdek, 113 Ill.2d 323, 326-27 (1986).
The precise facts of this case - an attorney who has sexually importuned subordinate employees and others and who has also had prior discipline for inappropriate sexual misconduct-- are unique in Illinois disciplinary precedent. However, several cases support a 30 month suspension until further order of the Court.
In In re Fishman, 01 CH 109 (Review Bd., March 31, 2004), Administrator's petition for leave to file exceptions allowed, No. M.R. 19462 (Sept. 24, 2004), the attorney was suspended for one year for committing assault and battery by making sexual advances toward a female associate. Fishman's unwanted advances occurred over a nine month period and included kissing the associate, touching her breast, reaching up her skirt, masturbating as he was trying to kiss her, appearing at her home and accosting her, and inserting his finger in her vagina. Like Respondent here, he was a supervising attorney and accused the associate of fabricating the story. The misconduct by Respondent, here, is far more egregious; a pattern of sexual
misconduct involving six different women over an extended period of time. In contrast to the present case, Fishman had not been previously disciplined and the Hearing Board found that he was unlikely to engage in similar future conduct.
In In re Clark, 97 CH 111 (Review Bd., July 30, 2001), Administrator's petition for leave to file exceptions allowed, No. M.R. 17713 (Nov. 29, 2001), the attorney committed unlawful restraint and battery by tying up a secretary and two women interviewing at his law firm. The attorney cooperated with the Commission, admitted the incidents had occurred, and had been diagnosed with paraphilia. He was suspended for 2 years and until further order of the Court. Respondent, here, denies any misconduct and further claims all of the women were lying.
While the Hearing Board did a painstaking and we believe correct analysis of case law to support its 30 month suspension, it appears to have paid little attention to the overriding issue of whether this particular Respondent is likely to reoffend. We believe that, in this case, "what is past is prologue". Unless Respondent comes to grips with his problems and takes affirmative steps to understand and resolve them he is a very bad risk. We are also mindful that Respondent had done good work in his field of class action law and that the bulk of his misconduct occurred quite some time ago. For these reasons we think disbarment is not appropriate.
We affirm the findings of misconduct of the Hearing Board and by a majority recommend to the Court that Respondent, Paul M. Weiss, be suspended from the practice of law for 30 months and until further order of the Court.
Charles E. Pinkston, Jr.
Richard Green Dissenting as to Sanction Only
While I agree with my colleagues with respect to their agreement that the findings of the Hearing Board are not against the manifest weight and their analysis of the applicable law, I must disagree as to the recommended sanction. Respondent engaged in similar conduct in the 1990's, was disciplined and was to get treatment. Rather, he continued his bad behavior and in fact escalated it. Nothing in the record shows that he will not continue with the misconduct. Clearly this behavior leads the profession into disrepute. I would recommend that Respondent be disbarred.
Richard A. Green
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 Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office onJuly 23, 2015.
Kenneth G. Jablonski, Clerk of the
1 Beyond the violation of the municipal ordinance in the Castellanos matter, Respondent has not been charged or convicted of any underlying crimes here.