Filed July 30, 2015
In re Russell James Stewart
Commission No. 2012PR00121
Synopsis of Review Board Report and Recommendation
The Administrator filed a two-count Complaint alleging Respondent notarized a signature on a marital settlement agreement without actually witnessing the signature. Respondent then elicited false testimony from his client regarding the marital settlement agreement during a hearing on a proposed judgment for dissolution of marriage. Respondent also made a false statement to the court. The Hearing Panel found the Administrator proved all charges by clear and convincing evidence.
In aggravation, the Hearing Board found that Respondent was previously disciplined forfiling, on behalf of a client, a bankruptcy petition that falsely denied the client's recent transfer of property to her husband. The Hearing Board also found that Respondent was not candid with the Hearing Panel. The Hearing Panel recommended a three-month suspension.
Upon review, the Administrator objected to the sanction recommendation of the Hearing Board. The Review Board reviewed the precedent and concluded that a six month suspension was warranted because of the lack of mitigation, and the aggravating factors, including Respondent's lack of remorse, his false statements in his disciplinary case and his prior discipline. The Review Board recommended that Respondent be suspended for six months.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
RUSSELL JAMES STEWART,
Commission No. 2012PR00121
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This is Respondent's second disciplinary matter. In 2002, he was censured for filing, on behalf of a client, a bankruptcy petition that falsely denied the client's recent transfer of property to her husband.
The only issue in this matter is the appropriate sanction for conduct that includes another submission of a false statement, this time an intentional submission to a court of a marital settlement agreement that contained a false notarization by Respondent. Respondent also made false statements to the court about the settlement agreement and elicited false testimony from his client. The Hearing Board found in aggravation that Respondent was not candid with the Hearing Board during his disciplinary proceeding. The Hearing Board recommended that Respondent be suspended for three months.
The Administrator filed exceptions to the Hearing Board Report and asks that Respondent be suspended for six months. After careful consideration of the conduct and the mitigating and aggravating factors, we recommend that Respondent be suspended for six months.
Respondent's False Notarization of Marital Settlement Agreement
Eva and Andrew Janas consulted with Respondent on October 21, 2010 because Andrew was experiencing business difficulties. They discussed the possibility of obtaining a divorce allegedly so that Eva could maintain possession of a condominium in Florida and Andrew could file for bankruptcy, but Eva did not understand the discussion to be approval to proceed with that action. At no time did Respondent advise Eva to seek independent counsel.
The Administrator alleged that following this meeting, Respondent prepared, on behalf of Andrew, documents to proceed with the divorce, including a marital settlement agreement. Respondent initially claimed, including in his Answer to the Administrator's Complaint, that he gave a draft marital settlement agreement to Eva at the October 21, 2010 meeting and that she signed it in his presence. When called as an adverse witness during the Administrator's case at the disciplinary hearing, Respondent again asserted that Eva signed the marital settlement agreement at this meeting. However, after the Administrator prepared to call a forensic expert to testify that an examination of Respondent's computer revealed that he had not prepared the marital settlement agreement as of October 21, 2010, Respondent finally conceded that he had not drafted the martial settlement agreement as of October 21, 2010.
After the meeting on October 21, 2010, Eva went to Florida. She did not meet with or speak to Respondent again. On November 1, 2010, unbeknownst to Eva, Respondent filed a petition for dissolution of marriage on behalf of Andrew Janas. Respondent filed a pro se appearance for Eva. Respondent then drafted a marital settlement agreement. He testified he gave the marital settlement agreement to Andrew and asked Andrew to have Eva sign it. Sometime thereafter, he testified that Andrew returned a signed agreement to Respondent. Respondent notarized the marital settlement agreement without witnessing Eva's signature to the
agreement, in violation of the provisions of the Illinois Notary Act, and without talking to her to confirm that she had signed it. He proceeded to file the notarized marital settlement agreement with the court in the dissolution matter and obtained a judgment of dissolution. He did not give notice to Eva of the prove-up date and he did not advise her of the entry of the judgment of dissolution.
The Hearing Board found that Respondent engaged in criminal conduct by violating provisions of the Illinois Notary Act in violation of Rule 8.4(b). The Hearing Board also found Respondent engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(c) by intentionally violating the Notary Act and by deliberately failing to notify Eva of the filing of the dissolution matter, the prove-up date, or the entry of the judgment of dissolution.
Respondent's False Statements to the Court and His Actions in Eliciting False Testimony From His Client
On January 10, 2011, Respondent appeared before Judge Kathleen Kennedy for the prove-up in the Janas dissolution matter. Judge Kennedy asked Respondent if Eva had been notified of the hearing. Respondent responded, "Absolutely". He then falsely said that he had talked to Eva the previous week and falsely stated that Eva had signed the marital settlement agreement in his office earlier in the month.
As set out in greater detail in the Hearing Board's Report, Respondent called Andrew as a witness during the prove-up hearing and elicited testimony Respondent knew was false about Eva's purported execution of the marital settlement agreement in Respondent's office and about the receipt of rent for the condominium in Florida. The court entered a judgment for dissolution based on Andrew's testimony.
Eva did not learn of the dissolution matter until May or June of 2011. She hired a lawyer, who ultimately vacated the judgment of dissolution.
The Hearing Board found, and Respondent does not dispute, that Respondent assisted his client in conduct Respondent knew was criminal or fraudulent in violation of Rule 1.2(d); made false statements to the court in violation of Rule 3.3(a)(1); knowingly elicited false testimony from Andrew in violation of Rule 3.3(a)(3); engaged in dishonest conduct in violation of Rule 8.4(c); and undermined the judicial process and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).
This Board's recommendation of a sanction is advisory, as is the recommendation of the Hearing Board. The Hearing Board's recommendation is subject to de novo review. In re Ingersoll, 186 Ill.2d 163, 178, 710 N.E.2d 390 (1999); In re Twohey, 191 Ill.2d 75, 727 N.E.2d 1028 (2000). While we give deference to the Hearing Board's findings that are supported by the evidence, we recognize, in determining a sanction recommendation, that each case presents a unique factual situation and must be evaluated based upon its own merits. In re Ushijima, 119 Ill.2d 51, 518 N.E.2d 73 (1987).
The Hearing Board recommended a three month suspension. In support, the Hearing Board primarily relied on the case In re Heilgeist, 103 Ill.2d 453, 469 N.E.2d 1109 (1984). In Heilgeist, the Court suspended the attorney for three months for participating in the creation of false evidence by advising his clients to make checks for home repairs payable to a company that did not perform the actual work, despite Heilgeist's knowledge that the money would be distributed to persons other than those associated with the company.
We believe that Respondent's conduct is more egregious than the conduct in Heilgeist. Unlike Heilgeist's conduct, Respondent's conduct was not an isolated failure of judgment, but was a deliberate course of deception. He falsified a notarization, falsely told the court he had given notice of the divorce proceedings to Eva, falsely told the court that Eva had signed the marital settlement in his presence, falsely asserted in his Answer to the Administrator's Complaint that he had witnessed Eva's execution of the agreement, and falsely testified at his own disciplinary proceeding. He also knowingly had his client testify falsely in the dissolution proceeding.
While no two disciplinary cases are exactly alike, we view this case as more analogous to the case of In re Forrest, 2011PR00011 (Review Bd., Aug. 22, 2013), approved and confirmed, No. M.R. 26358 (Jan. 17, 2014) where the Court imposed a six month suspension imposed for the attorney's false notarization of the signatures of property buyers on a quitclaim deed followed by a false initial statement to the Administrator about the conduct.
In addition, we conclude that a six month suspension is warranted because of the lack of mitigation and because of the presence of aggravating factors. Respondent presented little meaningful mitigation. He called one character witness, an employer from a local newspaper, but he presented no evidence of charitable or pro bono work. He expressed little to no remorse for his misconduct. In fact, Respondent continued to deny at hearing that his conduct had harmed anyone. Instead, he expressed his growing disenchantment with the practice of law, leaving the impression that he has failed to give serious thought to the duties incumbent with the privilege of being a member of the legal profession.
Respondent's conduct is also aggravated by his prior misconduct, a factor not present in the Heilgeist case. In addressing recidivism, the Court has stated that a previously
disciplined attorney should "have a heightened awareness of the necessity to conform strictly to all the requirements of the Rules of Professional Conduct." In re Storment, 203 Ill.2d 378, 401, 786 N.E.2d 963 (2002). While Respondent's prior misconduct was not identical to the misconduct in this case, his prior sanction for making a false statement to a court should have provided Respondent with an awareness of his obligations in representing Andrew Janas. That his prior sanction did not deter him in this matter suggests he is in danger of repeating his improper behavior. For this reason, a six month suspension will serve to better protect the public because it will trigger the client notification requirements of Supreme Court Rule 764.
The purpose of discipline is not to punish the individual respondent, but to protect the public, to maintain the integrity of the profession and to protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). Because of Respondent's false statements and subornation of perjury in the dissolution matter, false testimony in this disciplinary case, his lack of remorse for his misconduct, and prior discipline, we recommend a six month suspension.
For the foregoing reasons, we affirm the findings of fact and of misconduct of the Hearing Board and we recommend to the Court that Respondent, Russell James Stewart, be suspended from the practice of law for a period of six months.
Robert M. Henderson
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 on July 30, 2015.
Kenneth G. Jablonski, Clerk of the