Filed September 14, 2015
In re Robert Bless
Commission No. 2013PR00122
Synopsis of Hearing Board Report and Recommendation
The Administrator filed a one-count Complaint charging Respondent with misconduct related to a workers' compensation claim he filed in connection with his employment as a Cook County sheriff's police officer. After suffering an injury while on duty, Respondent remained off work for more than two years and collected temporary total disability benefits. During this time, Respondent continued to operate his law practice and assumed a paid position on the McHenry County Board. The Complaint alleges Respondent failed to obtain approval to work these secondary jobs while on disability, as required by workplace rules. Respondent was charged with conduct involving dishonesty, fraud, deceit or misrepresentation and conduct prejudicial to the administration of justice.
The Hearing Board found Respondent engaged in dishonest conduct by intentionally failing to obtain approval for his secondary employment while he was on disability so he could continue to collect full disability benefits as well as income from his other employment. The Hearing Board found the Administrator failed to prove Respondent engaged in conduct prejudicial to the administration of justice based on the fact that his conduct led to internal disciplinary proceedings which resulted in his termination.
After considering the aggravating factors and the lack of significant mitigation, the Hearing Board recommended Respondent be suspended for one year.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 2013PR00122
REPORT AND RECOMMENDATION OF THE HEARING BOARD
SUMMARY OF THE REPORT
After suffering an injury while working as a police officer with the Cook County Sheriff's office, Respondent filed a workers' compensation claim and collected temporary total disability benefits for more than two years while he remained off work. During this time, Respondent continued to operate his law practice and assumed a paid position as an elected member of the McHenry County Board. Respondent did not obtain approval to work these other jobs as required by workplace rules. Respondent's income from this other employment might have reduced the amount of disability benefits he received.
Respondent engaged in dishonest conduct by intentionally failing to obtain approval for his secondary employment while on disability so he could continue to collect full disability benefits and earn this other income. Respondent did not engage in conduct prejudicial to the administration of justice based on the fact that his wrongdoing led to internal disciplinary proceedings which resulted in his termination. There were several aggravating factors and minimal mitigation. We recommend Respondent be suspended from the practice of law for one year.
The hearing was held on January 14, 15, and March 10, 2015, at the Chicago offices of the Attorney Registration and Disciplinary Commission (ARDC), before a Hearing Board Panel consisting of Brigid A. Duffield, Chair, John D. Gutzke, and David A. Dattilo. Lea S. Gutierrez appeared on behalf of the Administrator. Respondent appeared at the hearing and was represented by John M. Driscoll.
The case was heard based on the Administrator's one-count Second Amended Complaint filed on September 16, 2014, charging Respondent with misconduct related to his receipt of disability benefits in connection with his job as Cook County sheriff's police officer. In his answer, Respondent admitted some of the factual allegations, denied others, and denied all the charges of misconduct. Respondent also asserted several affirmative defenses.1
The Administrator alleged Respondent engaged in: 1) conduct involving dishonesty, fraud, deceit or misrepresentation; and 2) conduct prejudicial to the administration of justice, in violation of Rules 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990) and Rules 8.4(c) and 8.4(d) of the Illinois Rules of Professional Conduct (2010).2
The Administrator presented testimony from Rosemarie Nolan, Robin O'Neill, Henry Hemphill, Dr. Sean Salehi, Kirstjen Lorenz, Respondent as an adverse witness, and Jeremy Schwartz and Margaret Fahrenbach as rebuttal witnesses. Respondent testified on his own behalf and presented testimony from Christopher Garcia, Francisco Ruiz, Jeremy Schwartz, Anthony Brzezniak, Jose DelValle, John Konrad, and Scott Barber. The following exhibits were admitted
into evidence: Administrator's Exhibits 1-7 and 9-26; Respondent's Exhibits 1-2, 6-9, 11-12, 14 (except page 12), and 16-17.
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. Ill. Sup. Ct. R. 753(c)(6) (2010); In re Edmonds, 2014 IL 117696, par. 35 (2014). Clear and convincing evidence means a degree of proof which, considering all the evidence, produces a firm and abiding belief it is highly probable the proposition at issue is true. Cleary & Graham, Handbook of Illinois Evidence, sec. 301.6 (9th ed. 2009). While less stringent than the criminal standard of proof beyond a reasonable doubt, clear and convincing evidence requires more than the usual civil standard of a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995). It is the responsibility of the Hearing Board Panel to determine the credibility of the witnesses, weigh conflicting testimony, draw reasonable inferences, and make factual findings based on the evidence. See Edmonds, 2014 IL 117696, par. 35.
I. Admitted Facts and Evidence Considered
Respondent was admitted to the Illinois bar in May 2004. Shortly thereafter, he opened his own law practice in Palatine, Illinois called Bless & Associates. At that time, Respondent had also been employed as a sheriff's police officer with the Cook County Sheriff's Office (CCSO) since 1997. Respondent remained in his job with CCSO after he was admitted to the bar and operated his law practice on a part-time basis. (Tr. 53-54, 181-82, 188-89).
Cook County sheriff's police are part of an independent police department whose officers are trained to patrol the streets and answer calls in unincorporated areas of Cook County. The job
is physically demanding and involves much more rigorous activity than the ability to drive a patrol car. (Tr. 104-106, 478-83).
Cook County sheriff's police officers are permitted to work additional jobs, provided they follow certain procedures and obtain approval. Those procedures are set forth in general orders issued by the sheriff governing "secondary employment." During all times relevant to this matter, secondary employment was governed by General Order 07-2, which was issued on December 4, 2007. (Tr. 38-40, 86; Adm. Ex. 1; Resp. Ex. 2).
Pursuant to General Order 07-2, "secondary employment" is defined as "any activity, external from CCSO operations, for which a CCSO employee is compensated in salary, wages, commission, fees or other value, for services performed for an employer or in a self-employed status." In order to work secondary employment, CCSO employees must obtain permission through the chain of command from their department head prior to commencing the employment. Permission is obtained by completing and submitting a two-page secondary employment request form. The employee is responsible for submitting the secondary employment request to his immediate supervisor at least fourteen days prior to the effective date of employment. After completing the form, the supervisor forwards it along with his or her recommendation through the chain of command to the appropriate department head. (Tr. 39-47, 86-88, 544-49; Adm. Ex. 1; Resp. Ex. 2).
General Order 07-2 also requires all sworn and civilian employees to confirm their secondary employment status on an annual basis, and employees must submit a new form each year for ongoing employment and complete a separate form for each job. Secondary employment forms are due no later than December 31st of each year, and approvals expire on January 31st of the following year. (Tr. 42, 45-46; Adm. Ex. 1; Resp. Ex. 2).
Ultimately, it is at the discretion of the department head to approve, deny or revoke an employee's secondary employment. Once such a determination is made, the employee receives a signed copy of the form notifying him of the disposition of the request. CCSO employees are not permitted to begin working secondary employment before obtaining approval. The personnel department maintains separate files and a database to track secondary employment forms. (Tr. 41, 43, 48-49, 122-23, 464-66, 476-77; Adm. Ex. 1; Resp. Ex. 2).
Throughout most of Respondent's employment with CCSO, he also worked various secondary jobs. Respondent was familiar with the sheriff's general orders governing secondary employment and complied with those procedures on a number of occasions. From 1996 through 2001, Respondent submitted the required form and obtained approval to work secondary jobs as a financial consultant, construction worker, security guard, and real estate salesperson. Shortly after he was admitted to the bar in May 2004, Respondent submitted the form and received approval to operate his law practice on a part-time basis. From 2005 through 2008, Respondent continued to submit the form each year to work his secondary job as an attorney. In each instance, after the form was signed by his supervisors and approved through the chain of command, Respondent received notice of approval of his request. (Tr. 182-94, 488; Adm. Ex. 2 at 1-13; Resp. Ex. 14; Ans. at par. 5).
Respondent's 2008 Accident and Workers' Compensation Claim
On September 10, 2008, Respondent was injured in an automobile accident while on duty as a sheriff's police officer. Respondent suffered two fractures in one of the vertebrae in his neck as well as an injury to his right shoulder. Respondent was treated at the hospital by the attending neurosurgeon, Dr. Mina Foroohar. At the time of his initial injury, Dr. Foroohar instructed Respondent he could not work and could not drive. (Tr. 60, 194-95, 197-98, 348, 362, 483-87; Resp. Ex. 16, 17; Ans. at par. 6).
Dr. Foroohar also became Respondent's treating physician for his neck injury. After a further evaluation of Respondent's condition on October 2, 2008, Dr. Foroohar issued a written recommendation Respondent should "remain off work until further notice." Dr. Foroohar also instructed Respondent in September, October, November and early December he could not drive. (Tr. 194-95, 197-98; Resp. Ex. 11).3
Shortly after his accident, Respondent filed a workers' compensation claim in order to receive paid time off as a result of his injuries. Workers' compensation claims for CCSO employees are administered by the Cook County Department of Risk Management (Risk Management). Risk Management is a separate entity which employs claims adjustors who review claims and determine whether an injury duty claim is approved or denied. Once an injury duty claim is approved, Risk Management notifies CCSO's personnel department and the employee is placed on injured on duty (IOD) status. Cook County does not have insurance to pay these benefits and uses funds derived from general tax revenues. (Tr. 50-53, 62-63, 195-96, 339-40, 342-44).
Approximately one month after his accident, Respondent's duty disability claim was approved by Risk Management. At that time, Respondent's employment status was changed to IOD and he was taken off CCSO's payroll. Respondent remained on IOD status until he returned to work on November 2, 2010. During this time, Respondent received disability benefit payments from Cook County totaling $94,586.82. (Tr. 60-63, 90-91, 199, 340-41, 488-89, 498-99; Adm. Exs. 4, 5; Resp. Ex. 6; Ans. at par. 9).
In addition to submitting medical records from his own physicians, Respondent was also required to undergo independent medical examinations (IME) by physicians selected by Risk Management. Dr. Sean Salehi, M.D., a board certified neurosurgeon in practice since 2005, conducted an IME of Respondent with respect to his cervical spine and neck injuries. Dr. Salehi
evaluated Respondent on three occasions and provided written reports to Risk Management regarding Respondent's condition, treatment recommendations, and ability to work. (Tr. 198-99, 315-18, 326-28, 332, 353-54).
Dr. Salehi first evaluated Respondent on November 11, 2008. Respondent was wearing a cervical collar at the time and complained of neck pain. Dr. Salehi recommended Respondent continue to remain off work until he had a follow-up CT scan of the cervical spine and confirmation of fusion was obtained. Once that occurred, Dr. Salehi recommended Respondent complete a four-week course of physical therapy. At the conclusion of physical therapy, Dr. Salehi indicated Respondent could return to his pre-injury work. (Tr. 318-20, 330-32; Adm. Ex. 11 at 1-3; Resp. Ex. 7).
Dr. Salehi evaluated Respondent a second time on January 30, 2009. Respondent had completed three to four weeks of physical therapy but had not yet had a repeat CT scan of his neck. Respondent complained of headaches and pain in his neck and right shoulder region. Respondent told Dr. Salehi he "does not drive because he has neck stiffness." Dr. Salehi recommended additional physical therapy and a repeat CT of the cervical spine. He also stated in his report Respondent should "refrain from driving due to his limited cervical range of motion until the physical therapist feels his range of motion is adequate enough to be able to drive." Dr. Salehi's recommendation Respondent not drive was based upon Respondent's statement he did not drive due to neck stiffness and the limited range of motion he found during his physical examination. (Tr. 321-25, 335-36; Adm. Ex. 11 at 4-7; Resp. Ex. 8).
Dr. Salehi evaluated Respondent a third time on May 14, 2009. Respondent was still experiencing neck pain, but his primary complaint was continuing pain in his right shoulder. Respondent told Dr. Salehi he began driving at the end of February, once he regained some range of motion in his neck. After reviewing a recent CT scan which showed his cervical fracture was
well-healed, Dr. Salehi determined that from a neurosurgical standpoint Respondent could return to work full duty. Dr. Salehi made no findings regarding Respondent's shoulder injury as it was beyond his areas of expertise. Dr. Salehi testified he did not see any signs during his examinations that Respondent was magnifying his injury or malingering. (Tr. 325-26, 329-30, 333-35, 372; Adm. Ex. 11 at 8-11; Resp. Ex. 9).
Respondent was treated for the injury to his right shoulder by Dr. James Bresch, M.D. Dr. Bresch performed surgeries on Respondent's right shoulder on June 30, 2009, January 19, 2010, and May 25, 2010. Dr. Bresch saw Respondent regularly during this time and provided a series of disability status reports regarding Respondent's ability to work. With the exception of a brief period during March and April 2010, when Respondent was released to perform modified duties, all of Dr. Bresch's reports prior to November 2010 instructed Respondent to remain off work until his next appointment or until further notice. On November 1, 2010, Dr. Bresch released Respondent to return to full duties. (Tr. 363, 376-80, 384-88, 483, 487, 499-504, 521-25; Adm. Ex. 23; Resp. Ex. 12).
Respondent's Secondary Employment While on IOD Status
Respondent continued to operate his law practice after his September 2008 accident. On October 21, 2008, Marion Feely was injured in an automobile accident, and Respondent agreed to represent Ms. Feeley on a contingency fee basis. Respondent settled the Feely case in December 2009, and was paid a fee for his work. (Tr. 226-30, 241; Adm. Exs. 14, 15).
On December 24, 2008, Respondent filed a personal injury complaint in the Circuit Court of Cook County on behalf of client Brittney Copano. Respondent later referred the matter to another attorney. Respondent was paid based on his 2009 referral when the case was resolved in 2011. (Tr. 241-45; Adm. Exs. 18, 19).
During 2008 and 2009, Respondent was involved in the representation of Natalie Cordero in a personal injury case pending in the Circuit Court of Cook County. Respondent filed the complaint in 2007 and later referred the matter to Scott Barber, who filed an additional appearance in the case shortly before Respondent's accident. Respondent never withdrew his own appearance, however, and continued to fund expenses in the case in 2009. Respondent had a fee splitting agreement with Mr. Barber and was paid for work performed, both before and after the referral, when the case was resolved. (Tr. 238-41; Adm. Exs. 16, 17).
In 2009, Respondent agreed to represent Five O'Clock Steakhouse on a contingency fee basis in a claim for damages related to a July 2009 fire. When the matter eventually settled, Respondent was paid for work done, in part, during 2009 and 2010. (Tr. 245-46; Adm. Ex. 20).
In 2008, Respondent campaigned for a position on the McHenry County Board. Respondent won the election on November 4, 2008, and took office on December 1, 2008. Respondent immediately began receiving an initial annual salary of $19,327.17 as well as various insurance and other benefits for himself and his family. After taking office, Respondent regularly attended meetings in McHenry County. He continued to hold this position through November 2010, when he returned to his job as a sheriff's police officer. Respondent earned a total of approximately $38,655 during this time. (Tr. 199-214, 221-26, 518-19; Adm. Exs. 6, 7, 21; Ans. at par. 15).
Rosemarie Nolan was CCSO's director of personnel from 2008 through 2010. Ms. Nolan reviewed Respondent's personnel file and other records and testified regarding the secondary employment requests on file during the time Respondent was receiving disability benefits. Ms. Nolan confirmed Respondent had an approved secondary employment request on file to work as an attorney during 2008. That request was valid through January 31, 2009, and was never revoked. Ms. Nolan stated that in order to continue working that job, Respondent was required to
submit another form to renew that request by the end of 2008, but failed to do so. The next secondary employment forms in Respondent's file were not submitted until November 23, 2010. On that date, Respondent submitted forms for his job as an attorney and his position on the McHenry County Board. Both of those requests were approved by the chief of police on December 9, 2010. (Tr. 37-38, 54-59, 91-93, 111-16, 119-21, 249, 489; Adm. Ex. 2).
Respondent denied he failed to submit secondary employment forms to work as an attorney and as a McHenry County Board during 2009 and 2010. Respondent testified he submitted his secondary employment forms for 2009 to his immediate supervisor, Sergeant Larry King, in late January or February 2009. Respondent explained he was unable to go to the district before the end of December to submit the forms, because he was still on medication and was unable to get around by himself. Respondent stated that he called Sergeant King and arranged to meet with him at a Dunkin' Donuts in Palatine to turn in his forms for both his law practice and his McHenry County Board position. With respect to the 2010 forms, Respondent testified he brought those forms to the Rolling Meadows courthouse in late 2009 and put them in a basket on the desk of the sergeant on duty. Respondent did not know the name of that sergeant. Respondent admitted he never received written or other approval of any of the requests he submitted in 2009 while he was off work and had no copies of any of these forms. (Tr. 215-19, 254-55, 489-90, 494-98, 518-20, 529-30; Ans. at pars. 12, 13, 16).
Respondent called three witnesses to corroborate his testimony regarding the 2009 Dunkin' Donuts meeting. Christopher Garcia, Francisco Ruiz, and Jose DelValle are Cook County sheriff's police officers and former coworkers of Respondent, who were present at the Dunkin' Donuts meeting in late January or early February 2009. The three officers were meeting with Sergeant King at the end of their shifts to submit paperwork. (Tr. 403-408, 413-17, 418-23, 426-28, 456-62, 467-69).
Officer Garcia testified he recalled Respondent came into the Dunkin' Donuts with a "piece of paper" in his hand. Respondent handed the paper to Sergeant King and told him he was handing him his secondary employment form. Officer Garcia did not actually read the document and could not recall if it was one piece of paper or two. Officer Garcia stated he was familiar with the secondary employment form, but had never filled one out. (Tr. 404-409, 411, 413-17).
Officer Ruiz recalled Respondent came to the Dunkin' Donuts while he was off work to have his secondary employment form signed by Sergeant King. Officer Ruiz saw Respondent hand Sergeant King "one form." Officer Ruiz testified he saw the secondary employment form, but did not see what job it was for. (Tr. 418-25, 426-28).
Officer DelValle testified Respondent walked up to Sergeant King, who was sitting with them at a table, with some "documents" in his hand. Respondent handed the documents to Sergeant King and stated, "[Y]ou're my witnesses, . . . this is my secondary employment forms." Officer DelValle did not see the forms and did not know how many documents there were. (Tr. 456-62, 464-69, 471-77).
Respondent testified he believes he complied with CCSO rules throughout this process and was compliant in making requests for secondary employment. Respondent stated he had no reason to believe CCSO would revoke or reject his secondary employment while he was on IOD status. Respondent was not aware of any reason he could not receive attorney's fees while he was receiving disability benefits. Respondent also stated his McHenry Board position only required him to sit through meetings and did not require significant physical activity. Respondent testified he understood the work restrictions in his physicians' reports applied to his job as a police officer. Respondent stated he was never instructed by anyone he could not operate his law practice or work as a McHenry County Board member because of his injury. (Tr. 254, 508-509, 512, 530-31).
Investigation of Respondent's Driving
In early 2009, Risk Management hired private investigator Robin O'Neill to investigate Respondent. Mr. O'Neill was initially asked to conduct surveillance regarding Respondent's activity level in general and was later asked to focus on his driving. Mr. O'Neill conducted surveillance of Respondent on various days and prepared written reports and video, which were admitted into evidence. Mr. O'Neill's investigation showed that Respondent began driving as early as February 2, 2009, and continued to drive on additional dates during February, March and May 2009. (Tr. 125-58; Adm. Exs. 9, 13).
Although Respondent admitted he began driving again as early as February 2, 2009, he denied violating any driving restrictions from his doctors. Respondent testified he understood from Dr. Foroohar he was supposed to limit his driving until the end of December. After that, Respondent was supposed to do as much as possible while waiting to be approved for physical therapy. Respondent testified that by the time he began physical therapy in early 2009, he did not have any restrictions from his doctors not to drive. Respondent stated that by the end of January or early February, he began to feel like he could drive again. Respondent testified no one ever told him he could not drive until he was back at work and off IOD status. (Tr. 490-94, 510-11, 517).
OPR Investigation, Merit Board Proceeding and Respondent's Termination
On April 9, 2009, Rosemarie Nolan was notified by Risk Management of its ongoing investigation of Respondent's conduct. Ms. Nolan was advised that Respondent was currently working as a McHenry County Board member and lawyer while on IOD status. She was also informed Risk Management was conducting surveillance of Respondent and may have witnessed him driving, despite having a driving restriction on file. Ms. Nolan forwarded the complaint to CCSO's Office of Professional Review (OPR), which is responsible for investigating alleged
misconduct. OPR initiated an investigation into possible criminal or fraudulent activity by Respondent related to his workers' compensation claim. OPR investigators Henry Hemphill and Sheryl Collins were assigned to the matter. (Tr. 63-66, 77, 102-103, 160-62; Adm. 4 at 4).
On May 20, 2011, Respondent received a letter advising him he was an accused in an OPR administrative investigation. Respondent was ordered to appear on May 23, 2011, to be interviewed and provide a statement. On May 23, 2011, Respondent appeared along with his attorney, Jeffrey Kulwin, and was interviewed by Mr. Hemphill and Ms. Collins. Before the interview began, Respondent received and signed a written statement outlining his rights in the administrative proceeding as well as a written notification regarding the nature of the allegations against him. Mr. Hemphill took notes during the interview, went over the information with Respondent, and had Ms. Collins type up the information for Respondent to sign. Before signing the statement, Respondent had a chance to review the statement and make any additions or corrections. By signing the statement, Respondent verified the information contained in it was "accurate and complete." (Tr. 162-66, 168, 170, 246-47; Adm. Ex. 10).
In his signed statement, Respondent stated "he did not submit a secondary employment application for 2008 regarding employment for McHenry County." Respondent further stated "he did submit secondary employment applications for Bless and Associates and McHenry County Board in 2010." Respondent also stated "he did submit a secondary employment each year for Bless and Associates however when he assumed the position of McHenry Board Commissioner he was not aware he had to submit a secondary employment application due to being on heavy medications due to the injuries sustained in a work related accident." Respondent also stated "he was unaware that he could not work a second job while in an injured on duty status under his circumstances." (Tr. 166-68, 216-17; Adm. Ex. 10 at 6-7).
Mr. Hemphill testified Respondent never stated during the interview he submitted a secondary employment form for his McHenry County job in January or February of 2009. Nor did Respondent say anything about the Dunkin' Donuts meeting. Although Mr. Hemphill did not include everything Respondent said in the signed statement, he included all statements Respondent made regarding secondary employment forms. (Tr. 167, 170-72, 176-78, 216-17).
Mr. Hemphill testified he found no evidence during his investigation Respondent had approval to work his secondary job as an attorney after January 2009. Additionally, he found no evidence Respondent was approved to work the McHenry County Board job at any time while he was on disability. Mr. Hemphill concluded Respondent's statement he was approved every year for his attorney job was false. Mr. Hemphill relied on CCSO's records to determine Respondent's secondary employment status and did not follow-up with Respondent's supervisors to determine whether they received a form. (Tr. 168-69, 173-76, 179-80).
On July 28, 2011, after completing its investigation and making findings, OPR recommended Respondent be terminated based upon his violation of various rules and regulations, including the rules regarding secondary employment. On August 3, 2011, Respondent received notification he was being relieved of his law enforcement powers and assigned to desk duty until further notice. (Tr. 247; Adm. Ex. 10 at 1, 8-17).
A complaint was subsequently filed against Respondent with the Cook County Sheriff's Merit Board (Merit Board) seeking Respondent's termination. The Merit Board hears employee disciplinary matters involving suspensions of 30 days or more or termination. Respondent contested the charges and testified at an evidentiary hearing held over the course of several days from November 13, 2012 until January 29, 2013. On May 3, 2012, the Merit Board issued a written decision which found, based upon a preponderance of the evidence, that Respondent violated Board Rules by working secondary employment as an attorney and as a McHenry
County commissioner, without approval, while continuing to collect temporary disability benefits from his job with Cook County. As a result, the Merit Board terminated Respondent effective October 6, 2011. Respondent has challenged the Merit Board's decision and his case is currently pending in federal court. (Tr. 35-36, 66-69, 70-75, 248, 250, 643-46; Adm. Ex. 12; Ans. at par. 21).
Secondary Employment and Workers' Compensation Benefits
Kirstjen Lorenz holds a bachelor's degree and has over 20 years of experience handling workers' compensation claims. She has been the workers' compensation manager for Cook County for the past two years and previously held the same position with the City of Chicago. Ms. Lorenz was not involved in Respondent's case, but reviewed his workers' compensation file and testified regarding his claim and the benefits he received. (Tr. 338-40).
Ms. Lorenz testified that the benefits Respondent received while on IOD status were temporary total disability (TTD) benefits. TTD is the benefit established by the Illinois Workers' Compensation Act for individuals who are temporarily unable to do any work at all. Ms. Lorenz explained that the basis for placing an employee on TTD is medical information from the employee's doctors indicating the individual can perform "no work." (Tr. 344-48, 360-61, 367).
According to Ms. Lorenz, Respondent's file included both "no work" and "no driving" restrictions. The "no driving" restriction was based on instructions from Respondent's treating physician included in medical records from his initial hospitalization. Ms. Lorenz testified that from October 11, 2008 until November 1, 2010, Respondent's Risk Management file always included a restriction from one of Respondent's physicians Respondent could not work. Ms. Lorenz believes Respondent was aware of these restrictions, because he faxed many of these documents to Risk Management. Ms. Lorenz believes a "no work" restriction applies to all employment. (Tr. 346, 348-53, 373, 390-91).
Ms. Lorenz testified that the amount of TTD benefits an individual receives is determined by the Illinois Workers' Compensation Act (the Act). See 820 ILCS 305. Generally, it is set at two-thirds of the employee's gross wages during the year prior to the date of the injury. Additionally, if the employee is working a second job when the injury occurs and the County is aware of it, the County is required by law to include those wages in calculating the benefit amount. Therefore, if Respondent were working an approved secondary job when he was injured, Cook County would have been required to also pay him two-thirds of his salary from that other job. Ms. Lorenz testified Respondent did not include income from his attorney job in his 2008 claim. If he had, Cook County would have been required to include that income in calculating the benefit amount. Ms. Lorenz noted the employee would only receive two-thirds of his earnings for that additional job, not his full salary. Additionally, the requirement only applies to jobs held by the employee at the time of the injury. (Tr. 351-52, 357-60, 374, 382-83).
According to Ms. Lorenz, the Act allows an individual to work another job while receiving disability benefits, provided the individual's doctor approves. In Respondent's case, Ms. Lorenz stated there was nothing in his file indicating he was ever cleared to do some other type of work. (Tr. 349-51, 354-56, 367, 372-73).
Ms. Lorenz testified that if a person is allowed to work a second job while on disability, the compensation from that job could reduce the amount of the disability benefits paid. Ms. Lorenz explained that the County pays two-thirds of the employee's wage loss. Therefore, if the wage loss is less than 100 percent, the County would only pay two-thirds of the amount of the loss. Ms. Lorenz testified the County may have reduced the amount of TTD benefits Respondent was receiving based upon the salaries he was earning as a McHenry County Board member and attorney. (Tr. 352, 374-75, 380-83).
Scott Barber, an attorney since 1984, represents individuals in workers' compensation matters and is familiar with the Act as it applies to Cook County employees. Mr. Barber represented Respondent in his workers' compensation case stemming from his 2008 accident. He testified that Respondent was entitled to TTD benefits for his time off work. Mr. Barber stated that when an employee has been off work on TTD, he needs to present a doctor's note to return to work. In Respondent's case, he went back to work as a sheriff's police officer after he received that note from his treating physician. Respondent's workers' compensation case has been settled and the case is now closed. (Tr. 589-92, 610-11, 618-21).
Mr. Barber acknowledged Respondent had a law practice and served on the McHenry County Board while receiving TTD benefits. Mr. Barber testified the Act allowed Respondent to have these jobs while he was on TTD. Additionally, an employee on TTD who is not able to return to his regular job but able to perform other work within his physician's restrictions, is not required by the Act to report that other job to his original employer. (Tr. 611-612).
Mr. Barber testified that the Act did not entitle Cook County to any type of credit for any income Respondent received from secondary employment while he was receiving TTD benefits. Mr. Barber explained a credit might be appropriate under some circumstances pursuant to Section 10 of the Act. See 820 ILCS 305/10. Section 10 provides that if an employee is engaged in concurrent employment at the time of his injury and the employer has knowledge of such employment, his wages from all such employers shall be considered as affirmed from the employer liable for compensation. This means if Respondent was unable to perform his duties as an attorney, he could have included those wages in the computation of the TTD benefit amount the County was responsible to pay. In this case, however, Respondent did not include his job as an attorney in his a claim. If he had and then continued to work, the County would have been entitled to a credit for the money he earned while collecting TTD. Mr. Barber acknowledged
Section 10 did not apply to Respondent's McHenry County job, because Respondent did not obtain that position until after his injury. (Tr. 613-17, 622, 624).
Jeremy Schwartz has been an assistant state's attorney in Cook County for 29 years. For the past ten years, he has represented Cook County in connection with workers' compensation claims filed by employees. Respondent's case was assigned to him for a period of time but he did not actually work on the case. Mr. Schwartz is familiar with the Act and there is nothing in the Act which precludes an individual receiving TTD benefits from working a second job. Mr. Schwartz stated that in Respondent's case, however, he believes the issue was whether Respondent violated the sheriff's general order, which requires disclosure of secondary employment. Mr. Schwartz testified that the Workers' Compensation Act does not specifically address whether an individual can work a second job if his doctor has instructed him he is to do no work at all. (Tr. 430-36).
Respondent's Application for Cook County Pension Board Benefits
In addition to workers' compensation benefits, a CCSO employee on IOD status can also apply for additional benefits from the County Employees' and Officers' Annuity Benefit Fund of Cook County (Pension Fund). Margaret Fahrenbach, an Illinois attorney since 1981 and legal advisor to the Pension Fund for past 5 1/2 years, explained the two types of disability benefits paid by the Pension Fund to individuals injured on duty. (Tr. 110-11, 628-33; Adm. Ex. 4 at 8).
Pursuant to the provisions of the Illinois Pension Code, the Pension Fund pays 75 percent of a worker's salary at the time of the injury. Duty disability benefits, however, must be coordinated with workers' compensation benefits. Since workers' compensation generally pays 66 2/3 percent of the worker's salary, the Pension Fund pays an additional 8 1/3 percent in order to reach 75 percent. Pension Fund benefits cannot be approved until the individual's workers' compensation matter has been finally adjudicated. A member injured on duty is also entitled to
receive a "service credit" benefit, which requires the Pension Fund to cover the employee's contributions to the Pension Fund during the period of disability. The member receives credit for the period of disability, but does not have to make the contributions. (Tr. 628-32, 637-38).
According to Ms. Fahrenbach, Pension Fund records indicate Respondent filed an application for disability benefits on July 23, 2009. Ms. Fahrenbach testified Respondent's application included both types of benefits, which cannot be bifurcated. Furthermore, there is nothing on Respondent's application to indicate he was only applying for one of the benefits. Ms. Fahrenbach stated Respondent's application is still pending and no benefits have been paid because the Pension Fund has not received notice Respondent's workers' compensation matter has been finally adjudicated. (Tr. 629-33, 636, 638-40; Adm. Ex. 25).
During the time period at issue, the Illinois Pension Code contained various provisions applicable to counties with over 3,000,000 inhabitants. Those provisions include Section 9-159(b), which provides that disability benefits "shall not be paid for any time for which the employee receives any part of his salary, or while employed by any public body supported in whole or in part by taxation." 40 ILCS 5/9-159. McHenry County is a public body supported in whole or in part by taxation. Ms. Fahrenbach testified this provision applies to both aspects of the duty disability benefit, because the Pension Fund considers that a single benefit. (Tr. 633-35; Adm. Ex. 22 at 7-9; Ans. at pars. 14, 18).
Respondent denied applying for Pension Fund benefits while on IOD status. Respondent testified he submitted the application to the Pension Fund only to ensure he received credit toward his pension for the time he was off work. Respondent stated he specifically indicated he was not seeking benefits, but only wanted to receive the service credit. (Tr. 520).
II. Analysis and Conclusions
A. Respondent is charged with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4)(1990) and Rule 8.4(c)(2010).
After suffering an injury while working as a police officer with the Cook County Sheriff's office, Respondent remained off work and collected temporary total disability benefits for more than two years. During this time, Respondent also worked as an attorney and assumed a paid position as an elected member of the McHenry County Board. Respondent did not obtain approval to work these secondary jobs as required by workplace rules, which might have reduced the amount of disability benefits he received. The Administrator proved Respondent engaged in dishonest conduct by intentionally failing to obtain approval for his secondary employment while on disability in order to continue to collect full disability benefits and earn income from his other jobs.
Rules 8.4(a)(4)(1990) and 8.4(c)(2010) prohibit attorneys from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. The Illinois Supreme Court has stated that there is no way to define every act or form of conduct which constitutes a violation of this rule; rather, each case is unique and the circumstances surrounding the attorney's conduct must be taken into consideration. In re Cutright, 233 Ill. 2d 474, 490, 910 N.E.2d 581 (2009). Additionally, the language in this rule is to be "broadly construed to include anything calculated to deceive, including the suppression of truth and the suggestion of falsity." Edmonds, 2014 IL 117696, par. 53. While inadvertent conduct may be inadequate to establish a violation of this rule, conduct which is purposeful or intentional has generally been deemed sufficient. See In re Thomas, 2012 IL 113035, par. 90; Cutright, 233 Ill. 2d at 489-90. An attorney's motive and intent
are rarely proved by direct evidence and must generally be inferred from the attorney's conduct and the surrounding circumstances. Edmonds, 2014 IL 117696,par. 54; In re Stern, 124 Ill. 2d 310, 529 N.E.2d 562 (1988).
After considering all of the evidence presented, we find this charge was proved by clear and convincing evidence. We find Respondent had a duty to report and obtain approval for his secondary employment, but failed to do so. We also find Respondent continued to work his secondary employment knowing he did not have the necessary approval, because he wanted to continue to collect his full disability benefits while also receiving additional income from his other jobs. We further conclude this conduct by Respondent was dishonest, in violation of Rule 8.4(a)(4)(1990) and Rule 8.4(c)(2010).
The evidence clearly established Respondent had a duty while he was off work and receiving disability benefits to report his secondary employment and obtain approval to work these additional jobs. The sheriff's general order makes it clear that CCSO employees who wish to work secondary jobs must submit the required secondary employment form on an annual basis and obtain approval each year to begin or continue such employment. Adherence to this procedure was also established by numerous witnesses who testified at the hearing, including many of Respondent's own witnesses. Moreover, there is nothing to indicate employees are excused from complying with these rules and procedures when they are off work and collecting disability benefits.
The evidence further established Respondent was well aware of this requirement, as well as the procedures he was required to follow, because he had submitted the necessary forms and obtained approval to work many secondary jobs in the past, including his job as an attorney. Respondent's history also demonstrates he knew he was required to re-submit the forms and
obtain approval each year, regardless of whether the employment had been previously approved and regardless of whether his superiors and others in the office were aware of the employment.
The evidence also clearly showed Respondent was working both of these secondary jobs and earning additional income while he was off work and collecting disability benefits. There is no question Respondent served as a member of the McHenry County Board during this time. Respondent took office on December 1, 2008, shortly after he began receiving disability benefits, and remained in that position throughout the time he was off work. During this time, Respondent earned $38,655 and received various other benefits for himself and his family. Although Respondent disputed some of the Administrator's allegations regarding his work as an attorney, the evidence also clearly established he continued to operate his law practice, at least to some extent, throughout the time he was on disability. The evidence showed Respondent was involved in handling at least four different client matters, three of which he took on after his accident. It also showed Respondent earned a fee in each of these cases when the matters were ultimately resolved.
We also find clear and convincing evidence Respondent failed to submit the required secondary employment forms to work either as an attorney or as a McHenry County Board member during most of the time he was on disability. CCSO's personnel department had no record of receiving or approving any secondary employment requests for Respondent while he was on disability. Prior to that, the last request on file was for Respondent's job as an attorney and was submitted on January 1, 2008. That request expired on January 31, 2009, and was not renewed. According to personnel records, Respondent did not again submit any secondary employment forms until November 23, 2010, when he requested approval of his job as an attorney and his McHenry County Board position. Although both of those requests were approved on December 9, 2010, Respondent was never previously approved to work his
McHenry County Board position. Nor did Respondent have approval to work as an attorney after January 31, 2009, until this request was approved at the end of 2010.
Although Respondent maintained he submitted the necessary forms to work both of these jobs while he was off work, we did not find his testimony credible. Nor did we accept his explanation that both sets of forms he submitted were later lost. Respondent did not keep any copies of the forms he allegedly submitted and had no physical evidence to corroborate his claim. Furthermore, Respondent's testimony at the hearing conflicts with the signed statement he gave to investigators in 2011. In his earlier statement, Respondent admitted he did not submit a secondary employment form for his McHenry County job in 2008, but did so in 2010. Respondent also stated he was not aware he had to submit the form for his McHenry County job because he was on "heavy medications due to the injuries sustained in a work related accident." Contrary to his current testimony, Respondent never indicated he submitted forms for his McHenry County job on two separate occasions in 2009. Additionally, while Respondent claimed in his written statement he submitted forms for his law practice "each year," he provided no details. Respondent did not mention the alleged meeting with Sergeant King at the Dunkin' Donuts in early 2009 or his trip to the Rolling Meadows courthouse in late 2009 to drop off his forms.
Respondent's earlier statement is clearly inconsistent with his present position and he offered no real explanation for this discrepancy. Although Respondent suggested information might have been omitted from the written statement, this does not explain the contradictions. Furthermore, it is contrary to the testimony of the investigator, who stated he included all information Respondent provided regarding the secondary employment forms. In addition, Respondent had an opportunity to review the statement before he signed it and make any additions or changes. He was also represented by counsel at the time. In light of these
circumstances, we do not find it plausible Respondent and his attorney would have omitted these important details from his signed statement.
The fact that Respondent made no effort, in either instance, to follow-up on these requests further supports our conclusion he never submitted the forms. The evidence clearly established employees were required to obtain approval, not just submit the forms. It further showed that once the request was signed and approved up the chain of command, the employee received a copy of the signed form notifying him of its disposition. Although Respondent acknowledged he received such notifications in connection with past requests, he admitted he never received any approval of the requests he claims he submitted while on disability. Under these circumstances, Respondent's failure to further inquire about the matter is an indication he never actually submitted the forms.
Although Respondent offered the testimony of three of his fellow officers in an effort to corroborate his account of the 2009 Dunkin' Donuts meeting, we were not persuaded by this evidence. While each of these officers testified they witnessed Respondent hand Sergeant King some papers which Respondent referred to as his secondary employment forms, none of the officers reviewed the actual documents. One of the three also specifically stated Respondent handed Sergeant King only one form, which is inconsistent with Respondent's claim he turned in the two-page request for both of his secondary jobs. Under these circumstances, and in light of the other evidence noted above, the testimony of these officers was insufficient to persuade us Respondent submitted the forms in 2009. This is particularly true since there was no testimony from anyone in the chain of command that they ever received the documents.
Based upon all of the evidence, we find Respondent continued to work his secondary employment while he was on disability knowing he did not have the necessary approval. We further infer from the evidence Respondent intentionally did not report his secondary
employment during the time he was on disability because he wanted to continue to receive his full disability benefits as well as income from his secondary employment. The evidence established Respondent was entitled to receive disability benefits equal to two-thirds of his salary during the preceding year. It further showed that while Respondent may have been permitted to work other jobs while on disability, provided he was cleared by his doctors, the income he earned might have affected the amount of disability benefits he received. With respect to this issue, we found the testimony of Ms. Lorenz, Cook County's director of Risk Management, particularly credible and persuasive. Ms. Lorenz testified that Cook County was only required to pay Respondent two-thirds of his wage loss. She also indicated that if Respondent was earning income from other jobs while receiving disability, this could have reduced the amount of disability benefits the County was required to pay. Therefore, the evidence showed Respondent's disability benefits might have been reduced based on the additional income he was receiving from his other jobs.
Based on all the foregoing, we conclude Respondent's failure to comply with applicable rules and procedures regarding secondary employment while on disability was part of a deliberate effort on his part to ensure he could continue to collect the full amount of his disability benefits from Cook County while also earning significant additional income from his law practice and his McHenry County Board position. We further find Respondent's deliberate disregard of established rules and procedures in order to obtain financial benefits he might not have been entitled to receive, was dishonest conduct in violation of Rule 8.4(a)(4)(1990) and 8.4(c)(2010).
While the Administrator also alleged Respondent engaged in misconduct by seeking additional disability benefits from the Pension Fund while he was serving on the McHenry County Board, we do not find misconduct based on these allegations. The Administrator relies
on provisions of the Pension Code, which appear to preclude individuals such as Respondent from receiving Pension Fund benefits while employed by a public body supported in whole or in part by taxation. See 40 ILCS 5/9-159(b); 40 ILCS 7-5/109. Although Respondent clearly applied for Pension Fund benefits, it was undisputed his application was never acted upon and he never received any benefits. While Respondent's conduct may arguably constitute a technical violation of the Pension Code provisions, we do not find clear and convincing proof it rose to the level of a violation of Rule 8.4(a)(4)(1990) or Rule 8.4(c)(2010).
The Administrator also presented extensive evidence regarding Respondent's driving while on disability, allegedly in violation of restrictions imposed by his physicians. Although this evidence is not the basis for our misconduct finding, we consider it a further indication of Respondent's overall lack of honesty and credibility. The evidence clearly established Respondent began driving again as early as February 2, 2009. When he appeared two days earlier for an independent medical examination, however, Respondent told Dr. Salehi he did not drive due to neck stiffness. Several months later, when Respondent was again evaluated by Dr. Salehi, he reported he began driving at the end of February. Therefore, it is clear Respondent was not completely honest or forthright with Dr. Salehi concerning his driving.
Respondent also objected to our consideration of the Merit Board decision. Respondent argued, among other things, that the findings in those proceedings were based upon the less stringent preponderance of the evidence standard. While we admitted the Merit Board decision into evidence on a limited basis, we did not rely on it or give it any weight in making our determination here. Rather, we based our findings on the direct evidence we received in these proceedings, which led us to reach a similar conclusion based upon the more stringent clear and convincing evidence standard.
Finally, we address several affirmative matters raised by Respondent. Respondent contends discipline is not appropriate in this matter because his conduct did not involve an attorney-client relationship. Respondent's argument is based upon In re Karavidas, 2013 IL 115767 (2013), where the Court dismissed a disciplinary action against an attorney because his conduct occurred outside the context of an attorney-client relationship and the Administrator failed to prove a violation of any of the Rules of Professional Conduct. Contrary to Respondent's suggestion, however, the Court in Karavidas did not place conduct which occurs outside the attorney-client relationship beyond the reach of the disciplinary process. Rather, the Court stated that "discipline for conduct occurring outside the attorney-client relationship should be limited to situations where the attorney's conduct violates the Rules by demonstrating'a lack of professional or personal honesty which render[s] him unworthy of public confidence.'" Id. at par. 78 (quoting In re Bruckner, 00 CH 12, No. M.R. 17722 (Nov. 28, 2001) (Hearing Bd. at 30)). We conclude that Respondent's actions here, in deliberately failing to comply with workplace rules in order to obtain disability benefits he may not have been entitled to receive, involves such a lack of honesty.
We also reject Respondent's assertion that this matter is barred by principles of claim splitting, waiver, and estoppel based upon his prior disciplinary matter. Respondent presented no evidence and cited no authority in support of any of these defenses. Furthermore, while there are some common background facts, the prior matter clearly arose out of completely separate factual situations and entirely unrelated allegations of misconduct. Therefore, we find nothing improper in the Administrator's determination to bring these charges separately rather than joining them the prior proceeding. Additionally, there is nothing in the Hearing Board's report in the prior case to indicate it considered any of the wrongdoing alleged here, even in aggravation.
B. Respondent is charged with engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5)(1990) and Rule 8.4(d) (2010).
The Administrator did not prove Respondent engaged in conduct prejudicial to the administration of justice based on the fact that his conduct led to internal disciplinary proceedings which included a multi-day hearing before the Merit Board.
Rules 8.4(a)(5)(1990) and 8.4(d)(2010) prohibit attorneys from engaging in conduct prejudicial to the administration of justice. Respondent is charged with violating this rule because his conduct led to disciplinary proceedings which included a contested multiple-day trial before the Merit Board. We find that the Administrator failed to prove this charge by clear and convincing evidence.
Although Respondent's conduct clearly led to the Merit Board proceedings, we do not deem this sufficient to establish prejudice to the administration of justice as that language has been construed by the Court. In Karavidas, 2013 IL 115767, par. 90, the Court rejected the notion that a violation of this rule has been established simply because the attorney's conduct later becomes the subject of court proceedings. At issue in Karavidas was the respondent's conduct while acting as executor, but not attorney, of his late father's estate. The respondent breached his fiduciary duties by failing to fund a testamentary trust, lending estate assets to himself, and failing to disclose the transactions to the other heirs. Although the respondent's conduct led to probate court proceedings seeking to terminate independent administration and remove him as executor, the Court found no prejudice to the administration of justice had been established. The Court noted that "the record reveals no conduct by respondent regarding the motion to terminate independent administration or the later motion to replace him as executor that could have
undermined the judicial process." Id. at par. 96. The Court concluded that while the respondent's conduct was unacceptable for any executor, it had no actual or potential effect on the administration of justice.
We find this situation similar to Karavidas. Although Respondent's conduct implicated the judicial process because it eventually became the subject of termination proceedings before the Merit Board, this alone does not establish a violation of this Rule. Respondent clearly had a right to defend himself against the charges, which sought to terminate his employment. Furthermore, there was no finding Respondent testified falsely during the actual hearing or in any way impeded that proceeding. The evidence also indicates Respondent cooperated in sheriff's disciplinary investigation and did not engage in conduct which undermined that process. Even though the Merit Board ultimately ruled against Respondent and found he had been dishonest with his employer and OPR, we do not find sufficient proof his conduct undermined the judicial process.
EVIDENCE OFFERED IN AGGRAVATION AND MITIGATION
On March 12, 2015, Respondent was suspended for three years and until further order of Court for multiple violations of the Rules of Professional Conduct. In re Bless, 2010PR00133, M.R. 27134 (Mar. 12, 2015). Respondent's prior misconduct occurred from 2006 through 2009 and arose out his relationship with client Kathleen Scott. Respondent engaged in an impermissible conflict of interest by engaging in a sexual relationship with Ms. Scott while he was representing her in a wrongful death lawsuit arising out of the death of her husband. Respondent also entered into multiple improper business transactions with Ms. Scott by obtaining a series of personal and business loans from her and enticing her to invest substantial sums in a building project owned by Respondent and his father. Ms. Scott was a widow with
young children, and Respondent was having financial difficulties at the time. Additionally, Respondent counseled Ms. Scott to lie about their personal relationship during her deposition in the wrongful death case and lied to the ARDC regarding the nature of his personal and professional relationship with Ms. Scott. Respondent was found to have violated Rules 1.7(b), 1.8(a), 3.4(a)(2), 8.1(a)(1) and 8.4(a)(5) of the 1990 Rules.
Although some mitigation was noted, there was also substantial aggravation, including a finding by the Hearing Board that Respondent blatantly and repeatedly lied during his testimony at the disciplinary hearing. In recommending Respondent's suspension be continued until further order of the Court, the Hearing and Review Boards both cited Respondent's propensity to resort to dishonesty as cause for concern he would be unable to act in an ethical manner in the future.
Anthony Brzezniak has been the chief of police for Schiller Park for the past 19 months. He spent the previous 31 years at CCSO, where he worked his way up and retired as area commander. Chief Brzezniak has known Respondent professionally for about ten years. From 2008 until 2012, Respondent worked directly under his command and they had regular contact. Chief Brzezniak described Respondent as an "exemplary employee" who was knowledgeable, experienced, trustworthy, honest, sincere and credible. Chief Brzezniak did not think the charges brought by CCSO had any impact on Respondent's character among his close friends. Chief Brzezniak did not believe an accusation of failing to file secondary employment forms has anything to do with Respondent's character in terms of honesty and integrity. Although Chief Brzezniak is aware Respondent was terminated by the Merit Board and charged with misconduct in this proceeding, his opinion of Respondent's character has not changed. (Tr. 437-40, 442-52, 454).
Based on the seriousness of Respondent's misconduct, the aggravating factors, and the lack of any significant mitigation, we recommend Respondent be suspended from the practice of law for a period of one year.
Having found that Respondent engaged in misconduct, we must determine an appropriate sanction. In making this recommendation, we consider the purpose of the disciplinary system, which 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 Gorecki, 208 Ill. 2d 350, 360, 802 N.E.2d 1194 (2003). We also consider the nature and seriousness of the misconduct, the aggravating and mitigating factors, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. Id. at 360-61. While each case must be resolved based upon its own facts and circumstances, predictability and fairness require that sanctions imposed be consistent with those imposed in cases involving comparable misconduct. In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126 (1999).
Respondent's misconduct in this case was clearly serious. Respondent engaged in conduct designed to enable him to collect full disability benefits from his government employer while also continuing to work and receive income from several other jobs. In order to facilitate this goal, Respondent knowingly and intentionally failed to comply with applicable rules and procedures which required him to obtain his employer's prior approval to work these additional jobs. Respondent's wrongful conduct continued for a period of nearly two years and involved significant sums of money.
Although Respondent called one character witness who testified favorably regarding his honesty and integrity, there was little additional mitigating evidence. In aggravation, Respondent acted with a dishonest motive and for his own personal gain. See In re Chandler, 161 Ill. 2d 459, 474, 641 N.E.2d 473 (1994); In re Rotman, 136 Ill. 2d 401, 422, 556 N.E.2d 243 (1990). Respondent also demonstrated no awareness of the wrongfulness of his conduct and showed no remorse. See In re Lewis, 138 Ill. 2d 310, 347-48, 562 N.E.2d 198 (1990). Additionally, Respondent's misconduct occurred while he was a Cook County sheriff's police officer and an elected official of McHenry County, which are both positions which implicate the public trust. See In re Sims, 144 Ill. 2d 323, 325, 579 N.E.2d 865 (1991); In re Armentrout, 99 Ill. 2d 242, 255-56, 457 N.E.2d 1262 (1983).
Although Respondent has been previously disciplined for serious misconduct which included dishonesty, we do not give this factor significant weight in determining sanction. Prior discipline is typically considered aggravating because it indicates the attorney is a recidivist who has failed to learn from past mistakes. See In re Levin, 118 Ill. 2d 77, 88, 514 N.E.2d 174 (1987). In this case, however, all of the misconduct occurred several years before discipline was imposed by the Court in the previous matter. Furthermore, most of the misconduct in this case had already taken place by the time the previous charges were even brought. Therefore, we do not consider Respondent a recidivist in the ordinary sense. See In re Teichner, 104 Ill. 2d 150, 167-68, 470 N.E.2d 972 (1984).
With respect to sanction, the Administrator argues Respondent's misconduct warrants disbarment. The Administrator cites a number of cases in support of his position. Respondent argues the charges should be dismissed because no misconduct was established. Respondent did not cite any authority or propose any alternative sanction in the event misconduct was found.
After reviewing precedent and considering the facts of this case, we do not agree with either party's position. Dismissal is inappropriate in light of our finding Respondent engaged in serious misconduct. We also believe the Administrator's request for disbarment is too harsh based on the proven misconduct. Instead, we conclude a one-year suspension is appropriate discipline. Although we have not found any precedent which closely parallels the facts in this case, we believe the following cases are similar.
In In re Goodman, 93 CH 492, M.R. 11497 (Sept. 29, 1995), theattorney was suspended for one year for receiving improper compensation in connection with a government job. The attorney accepted payments in excess of $30,000 over a period of more than two years for a job at the City of Chicago Clerk's Office which required him to perform only minimal services. Although the attorney initially believed there would be more work, he continued to accept payments even after he admittedly knew they were improper. The attorney also knew he was expected to perform services unrelated to the Clerk's office in return for the compensation. In addition, he made improper payments to the individual who assisted him in obtaining the employment and signed a false residency affidavit. Based on these activities, the attorney was convicted of a misdemeanor federal offense. Although the attorney initially made misrepresentations to law enforcement, he quickly rectified those statements and cooperated extensively in the federal investigation. There were also significant additional mitigating factors, including evidence of good character and pro bono work, sincere remorse, voluntary termination of the arrangement, and voluntary payment of restitution.
In re Worrell, 07 CH 60, M.R. 24407 (Mar. 21, 2011), the attorney was suspended for one year for misconduct related to her handling of financial matters for her stepfather. The respondent intentionally provided false and misleading information regarding her stepfather's assets and financial situation on an application for public aid she completed on his behalf. The
respondent later pled guilty to attempted state benefits fraud. She also engaged in additional misconduct by improperly transferring her stepfather's home and other property to herself and using the funds for her own benefit. Aggravating factors included financial harm to her stepfather as well as potential harm to state taxpayers, who would have been responsible for the fraudulently obtained public aid payments. There was also substantial mitigation, including evidence of a favorable reputation for honesty and integrity and appreciation for the nature of the wrongdoing.
Although not identical, the primary misconduct in Goodman is similar to Respondent's in this matter. Both cases involved attorneys who knowingly received improper benefits in connection with government employment. Although the misconduct in Goodman was more extensive and led to a criminal conviction, there was also substantial mitigation, which clearly factored heavily into the sanction determination. Here, there was minimal mitigation and substantial aggravation. The misconduct in Worrell is also similar. Like here, the attorney engaged in dishonest conduct in an effort to improperly procure government benefits. Again, while the respondent's conduct there was more extensive and included a criminal conviction, there was also greater mitigation and less aggravation than in this matter.
Although the Administrator has also cited several disbarment cases, we believe these matters involved much more egregious misconduct. In In re Hutul, 54 Ill. 2d 209, 296 N.E.2d 332 (1973), the attorney was disbarred following his criminal conviction on multiple counts of mail fraud and conspiracy involving the defrauding of various insurance companies. Hutul schemed with individuals who purported to be his clients in collecting claims on lost wages allegedly incurred as a consequence of injuries sustained in fictitious automobile accidents. He received a five-year prison sentence for his crimes. In In re Fumo, 52 Ill. 2d 307, 288 N.E.2d 9 (1972), the attorney was disbarred after he pled guilty to a multi-count federal indictment arising
out of a scheme he devised with a physician to defraud insurance companies and his own clients. The scheme included the preparation of false and inflated medical bills which were submitted to insurance companies for reimbursement. The attorney then deducted the full amount of the inflated medical bills from his clients' settlements. Fumo was sentenced to 60 days in jail and 3 years of probation. Finally, in In re Herley, 99 DC 1002, M.R. 16028 (Sept. 29, 1999), the attorney was disbarred on consent after his guilty plea and federal criminal conviction stemming from his involvement in a scheme to defraud a workers' compensation claims management company. The scheme involved the payment of kickbacks to a claims adjustor in exchange for referral of surveillance business and approval of false reports and invoices submitted by the attorney.
These disbarment cases all involved calculated and extensive schemes to defraud insurance companies which were perpetrated through such tactics as the falsification of documents, fictitious accidents, and payment of kickbacks. Additionally, in Hutul and Fumo, the schemes involved the attorneys' law practices and clients. We do not consider these matters comparable to this case, where Respondent's conduct was limited to dishonesty in connection with the collection of his own disability benefits and was unrelated to the practice of law.
For all of the foregoing reasons, we recommend that Respondent, Robert Bless, be suspended for a period of one year.
Brigid A. Duffield
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 onSeptember 14, 2015.
Kenneth G. Jablonski, Clerk of the
1After the Administrator was granted leave to file a Second Amended Complaint, Respondent elected to stand on his previous Answer, which was filed on December 30, 2013.
2Because the conduct occurred from 2008 through 2010, Respondent was charged under both the 1990 and the 2010 Rules. Since the language in the Rules charged is the same, the charges will be addressed together.
3Limited evidence was presented regarding Dr. Foroohar's treatment of Respondent. Respondent declined the Administrator's request to waive privilege and allow the Administrator to contact his physician. (Tr. 517; Adm. Ex. 26).