Filed August 11, 2020

In re William Layne Roberts
Respondent-Appellant

Commission No. 2019PR00021

Synopsis of Review Board Report and Recommendation
(August 2020)

The Administrator brought a one-count complaint against Respondent, charging him with engaging in the unauthorized practice of law after he was removed from the master roll of attorneys for failing to complete Minimum Continuing Legal Education (MCLE) requirements.

The Hearing Board found that he had engaged in the charged misconduct. It recommended that he be suspended for 60 days for his misconduct. Respondent filed exceptions, challenging the Hearing Board's finding of misconduct as well as its sanction recommendation.

The Review Board affirmed the Hearing Board's misconduct findings. It rejected Respondent's request for reprimand, censure, or probation, finding that aggravating factors warranted a short suspension. However, it concluded that the 60-day suspension recommended by the Hearing Board was longer than necessary, and that a 30-day suspension was more commensurate with Respondent's conduct and consistent with precedent.

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

In the Matter of:

WILLIAM LAYNE ROBERTS,

Respondent-Appellant,

No. 6321389.

Commission No. 2019PR00021

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

SUMMARY

The Administrator brought a one-count complaint against Respondent, charging him with engaging in the unauthorized practice of law after he was removed from the master roll of attorneys for failing to complete Minimum Continuing Legal Education (MCLE) requirements.

Following a hearing at which Respondent was represented by counsel, the Hearing Board found that he had engaged in the charged misconduct. It recommended that he be suspended for 60 days for his misconduct.

Respondent filed exceptions, challenging the Hearing Board's finding of misconduct as well as its sanction recommendation.

For the reasons that follow, we affirm the Hearing Board's misconduct findings, and recommend that Respondent be suspended for 30 days for his misconduct.

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FACTS

Respondent

Respondent was admitted to the Illinois bar in November 2015. He was employed by the McLean County State's Attorney's Office as an assistant state's attorney from July 2016 through November 2017. At the time of his October 2019 disciplinary hearing, he was employed by the Vermilion County State's Attorney's Office as an assistant state's attorney. He has no prior discipline.

Respondent's Misconduct

Once Respondent became licensed to practice law in November 2015, Illinois Supreme Court Rule 793 required him to complete 15 hours of MCLE credit, including six hours of a basic skills course or an approved mentoring program, by November 30, 2016, and to report his completion of those requirements to the MCLE Board by December 31, 2016.

In September 2016, the MCLE Board mailed an initial notice of the applicable MCLE requirements to Respondent at the residence address then on file with the ARDC. Respondent, who had moved in August 2016, did not recall if he received that notice.

On December 6, 2016, Respondent updated his contact information with the ARDC and gave the McLean County State's Attorney's Office address as his business address. Subsequent MCLE and ARDC communications were sent to that address.

On December 22, 2016, the MCLE Board sent Respondent an email reminding him of his December 31 reporting deadline. Respondent received that email. He did not report compliance by December 31. Thus, on January 6, 2017, the MCLE Board sent Respondent a notice of noncompliance, which informed him that he had until March 2, 2017 to complete the

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required MCLE credits, report completion, and pay a $250 late fee, or his name would be removed from the master roll.

Respondent received that notice sometime during the second week of January. Around the end of January, he called the MCLE Board and left a voicemail message. A Board employee, Susan Doran, called him back on the next business day, January 30, and left a message. He replied on February 6, and spoke with Doran and another Board employee, Kevin Leonard.

Doran and Leonard testified at Respondent's hearing that, in their conversations with Respondent, he addressed only the late fee and did not raise any issues about the sufficiency of his credits. Leonard also testified that he told Respondent that Respondent had not reported compliance. MCLE Board Director Karen Litscher Johnson also testified that attorneys must report compliance online and cannot report by telephone. Respondent acknowledged that he did not report compliance using the online system, but he further testified that someone at the Board, whom he believed was Leonard, told him by phone that he was in compliance and only needed to work on getting the fee waived. The Hearing Board found his testimony not credible.

On February 27, the MCLE Board's manager of attorney compliance and outreach, Christina Pusemp, telephoned Respondent and left a message. He did not return her call.

Respondent testified that he used the Board's online portal to submit a fee waiver request prior to March 2. The Board did not receive a written fee waiver request or supporting documentation from Respondent. Respondent sent an email to the Board regarding a fee waiver on March 10, but the Board did not receive the email because Respondent used an incorrect email address.

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As of March 2, 2017, Respondent had not reported compliance. Thus, on March 3, the MCLE Board notified the ARDC that Respondent had not complied with the MCLE requirements. On March 16, the ARDC Registrar's Office sent Respondent a notice of impending removal, stating that he would be removed from the master roll if he did not bring himself into compliance by April 14.

Respondent testified that he called the Board in late March 2017, spoke with someone named "Dee, " and was told that his email had been received, that he was "good," and that "no news is good news." (Hearing Bd. Report at 7.) He therefore assumed the matter had been resolved.

As of April 19, Respondent still had not reported compliance to the MCLE Board, and consequently was removed from the master roll on that date. The ARDC sent him a removal notice informing him of that fact. He testified that he did not receive the notices of impending removal or removal.

Between April 19 and November 21, 2017, Respondent routinely appeared in court on behalf of the State. He estimated that he appeared as an assistant state's attorney in approximately 300 cases during that time. He therefore practiced law for a seven-month period when he was not authorized to do so.

On November 21, 2017, the McLean County State's Attorney told Respondent that he had learned that Respondent was not authorized to practice law in Illinois. On November 22, Respondent called the MCLE Board and spoke with an employee who suggested that he speak with Pusemp, who was away for the Thanksgiving holiday. On November 27, Respondent spoke with Pusemp and sent her the March 10, 2017 email and his CLE certificates. She noted

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that the email had been sent to an incorrect email address and that Respondent had not satisfied his MCLE requirements because he had not taken the Basic Skills Course.

That night, he completed an online Basic Skills Course and submitted information to the MCLE Board to support his request for a fee waiver. The Board approved the request and Respondent was reinstated to the master roll on November 29, 2017. That same day, the McLean County State's Attorney terminated his employment.

HEARING BOARD'S FINDINGS AND RECOMMENDATION

The Hearing Board found that Respondent's continued practice of law while he was removed from the master roll violated Rule 5.5(a), which provides that a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. The Hearing Board found that Respondent's defense - that he thought he had completed the MCLE requirements and did not know he had been removed from the master roll - involved his state of mind, which was not a valid defense. It noted that "Rule 5.5(a) is a strict liability offense and makes no exception for an attorney who is uninformed or confused about the status of his or her license." (Hearing Bd. Report at 4 (citing In re Thomas, 2012 IL 113035, par. 77; In re Susman, 2009PR00126, M.R. 26102 (Sept. 25, 2013)).) Moreover, it did not credit his testimony that he did not receive the March 2017 impending removal notice or the April 2017 removal notice, or his testimony that he was informed over the phone that he was in compliance with his MCLE requirements.

The Hearing Board concluded that Respondent was removed from the master roll on April 19, 2017 and continued to practice law thereafter, and therefore that the Administrator had proved that he violated Rule 5.5(a).

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In mitigation, the Hearing Board noted that, during the time of Respondent's misconduct, his wife was pregnant with twins who faced serious potential health problems. After they were born in June 2017, they were in neonatal ICU for six weeks. In addition, three character witnesses testified favorably about his character and reputation. As for his lack of prior discipline, the Hearing Board found it not to be a significant mitigating factor, given that he had practiced for only a short time before engaging in misconduct.

In aggravation, the Hearing Board found that, during his disciplinary proceedings, Respondent attempted to deflect responsibility away from himself and to avoid his own responsibility for his actions, leaving it with the impression that Respondent still does not understand his professional obligations. In addition, while it did not specifically cite lack of candor as an aggravating factor, the Hearing Board pointedly noted that it found Respondent's testimony that he believed he had complied with the MCLE requirements not credible and directly contrary to documentary evidence and other credible testimony.

The Hearing Board recommended a 60-day suspension.

ANALYSIS

Respondent challenges the sufficiency of the evidence underlying the Hearing Board's misconduct finding. We find that sufficient evidence supports the Hearing Board's findings and rulings, and therefore affirm them.

1.    The Hearing Board did not err in denying Respondent's motion for a directed finding

Respondent first argues that the Hearing Board erred in denying his motion for a directed finding at the close of the Administrator's case. He contends that the Administrator's complaint failed to allege that the ARDC sent him a letter notifying him of his impending removal from the master roll, which he claims was required before he could be removed from the master roll.

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There is no merit to Respondent's directed-finding argument. First, the Administrator was not required to allege that the ARDC sent Respondent a letter notifying him that he would be removed from the master roll if he did not report MCLE compliance by a certain date. Rather, under Illinois Supreme Court Rule 753(a), the complaint was required to "reasonably inform the attorney of the acts of misconduct he is alleged to have committed." It did so. The complaint charged Respondent with violating Rule 5.5(a) by continuing to represent the State after he was no longer authorized to practice law, and alleged specific facts to support the allegation of unauthorized practice. There is no deficiency in the Administrator's complaint. Thus, the premise underlying his directed-finding argument is incorrect.

Second, we will reverse a ruling on a motion for directed finding only if it is against the manifest weight of the evidence. In re Doyle, 144 Ill. 2d 451, 470, 581 N.E.2d 669 (1991). As addressed below, Respondent has not established that the Hearing Board's decision denying his directed-finding motion, nor its finding of misconduct, is against the manifest weight of the evidence.

2.    The Hearing Board's finding of misconduct is not against the manifest weight of the evidence

A decision based upon factual findings is against the manifest weight of the evidence where the opposite conclusion is clearly evident or the findings appear unreasonable, arbitrary, or not based on the evidence. Leonardi v. Loyola University, 168 Ill. 2d 83, 106, 658 N.E.2d 450 (1995); Bazydlo v. Volant, 164 Ill. 2d 207, 215, 647 N.E.2d 273 (1995). That the opposite conclusion is reasonable is not sufficient. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E. 2d 961 (2006). Moreover, while the Review Board gives deference to all of the Hearing Board's factual determinations, it does so particularly to those concerning the credibility of witnesses, because the Hearing Board is able to observe the testimony of witnesses - which the Review

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Board is not - and therefore is in a superior position to assess their demeanor, judge their credibility, and evaluate conflicts in their testimony. In re Kleczek, 05 SH 24 (Review Bd., June 1, 2007), at 8, petitions for leave to file exceptions denied, M.R. 21745 (Sept. 18, 2007) (citing In re Spak, 188 Ill.2d 53, 66, 719 N.E.2d 747 (1999); In re Wigoda, 77 Ill.2d 154, 158, 395 N.E.2d 571 (1979)).

Similar to his directed-finding argument, Respondent contends that the Administrator failed to prove that the ARDC sent the impending-removal letter to him as required by Illinois Supreme Court Rule 796(e). His theory appears to be that, in the absence of the impending-removal letter, the ARDC had no authority to remove him from the master roll; and because the Administrator failed to prove that the letter was sent, the Administrator failed to prove that he practiced law during a time when he was removed from the master roll.

Even if Respondent were correct that the ARDC is not authorized to remove an attorney from the master roll absent sending the attorney a notice of impending removal, the evidence established that the ARDC sent the impending-removal letter to Respondent. For example, the ARDC's registrar, Andrew Oliva, testified that the ARDC sent the impending-removal letter to Respondent. The Hearing Board found Oliva's testimony credible.

Respondent, however, argues that Oliva's testimony was insufficient to establish that the ARDC sent the removal notice because it was not supported by documentary evidence, such as a copy of the impending-removal letter, and because Oliva's testimony did not directly rebut Respondent's testimony that he did not receive the letter. These arguments ignore that the Hearing Board specifically found Respondent not credible on this subject, whereas it found Oliva and the Administrator's other witnesses credible. This Board gives great deference to the Hearing Board's credibility findings, and affirms findings of fact that are supported by evidence.

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Respondent has given us no basis to overturn the Hearing Board's credibility and other fact findings.

Next, Respondent raises what is essentially an equitable estoppel argument, contending that MCLE Board employee Kevin Leonard informed him over the phone that he was in compliance with his MCLE requirements, and that such a statement by an employee of one Illinois Supreme Court entity (the MCLE Board) precludes another Illinois Supreme Court entity (the ARDC) from acting contrary to the statement.

Respondent's argument lacks merit because the Hearing Board found "implausible" Respondent's description of his telephone call with Leonard and "not credible" his claim that he did not receive the removal notice from the ARDC. (Hearing Bd. Report at 11.) It found credible the testimony of MCLE Board employees Johnson and Pusemp that the MCLE Board does not accept telephone compliance reports, and noted that their testimony was consistent with Rule 796(a)(2)'s requirement that MCLE compliance be reported online. In other words, the Hearing Board found that Leonard never told Respondent that he had complied with his MCLE requirements. Other evidence supports that finding: namely, that Leonard testified that he and Respondent did not discuss his MCLE compliance, and Leonard's notes regarding the telephone with Respondent do not mention any discussion of MCLE compliance.

Again, given the Hearing Board's credibility findings and the standard of review that this Board applies, we see no reason to overturn the Hearing Board's findings of fact or misconduct. We therefore affirm them.

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RECOMMENDATION

The Hearing Board recommended a 60-day suspension. Respondent contends that, if he is found to have committed misconduct, he should receive a reprimand, censure, or probation.

In making our own recommendation, we consider the nature of the proved misconduct, and any aggravating and mitigating circumstances shown by the evidence, In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003), while keeping in mind that the purpose of discipline is not to punish the attorney but rather to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). We also consider the deterrent value of attorney discipline and "the need to impress upon others the significant repercussions of errors such as those committed by" Respondent. In re Discipio, 163 Ill.2d 515, 528, 645 N.E.2d 906 (1994) (citing In re Imming, 131 Ill.2d 239, 261, 545 N.E.2d 715 (1989)). Finally, we seek to recommend a sanction that is consistent with sanctions imposed in similar cases, Timpone, 157 Ill. 2d at 197, while also considering the unique circumstances of each case. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991).

The Court has imposed sanctions ranging from censure to a short suspension for misconduct similar to Respondent's, involving the unauthorized practice of law for a relatively limited period of time. See, e.g., In re Susman, 2009PR00126 (Hearing Bd., Jan. 29, 2013), approved and confirmed, M.R. 26102 (Sept. 25, 2013) (censure where attorney represented a single client during a period of seven weeks when she had been removed from the master roll for failing to register; mitigation included that she had practiced for 30 years without prior discipline, engaged in pro bono work and other volunteer activities that benefited her community

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and profession, and presented favorable character testimony; aggravation included that she registered late in two prior years, attempted to blame her secretary for her misconduct, and failed to abide by certain pre-hearing directives); In re Scott, 2010PR00096 (Review Bd., Dec. 20, 2011), petition for leave to file exceptions denied, M.R. 25181 (Mar. 19, 2012) (censure where attorney represented clients in eight matters over a nine-month period when he was removed from the master roll for failing to complete his MCLE requirements; mitigation included that the attorney had no prior misconduct and expressed regret for his conduct); In re Bennett, 07 CH 99 (Hearing Bd., Jan. 15, 2009), approved and confirmed, M.R. 23011 (May 18, 2009) (30-day suspension where attorney represented clients in four matters, two of which he handled for friends without charging them, while he was removed from master roll; aggravating factors included late registration in many other years, and prior discipline for converting funds and unauthorized practice of law); In re Stephens, 08 SH 104 (Hearing Board, June 12, 2009), approved and confirmed, M.R. 23258 (Sept. 22, 2009) (60-day suspension where attorney practiced law in at least 25 matters for approximately seven months after his name was removed from the master roll for failure to register and pay the annual fee; and where attorney also made a false statement to a judge that he had taken care of his registration when he had not); In re Cooper, 2014PR00166 (Review Bd., Nov. 4, 2016), approved and confirmed, M.R. 28490 (March 20, 2017) (90-day suspension where attorney represented clients in two matters while he was removed from the master roll and made false statements during a sworn statement to the ARDC; mitigation included that the attorney's unauthorized practice was not for his own financial benefit or gain, as he handled the matters for friends without charge; aggravation included that the attorney repeatedly failed to timely register and was removed from the rolls on numerous occasions, showed little remorse for his conduct, and did not appear to acknowledge

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his responsibility to adhere to the registration requirements that govern his profession); In re James, 09 CH 40 (Review Bd., Jan. 19, 2002), petitions for leave to file exceptions allowed and sanction increased, M.R. 25222 (May 18, 2012) (six-month suspension where attorney had 100 pending matters and filed appearance forms in 24 matters during a four-month period when he was removed from the master roll for failing to complete his MCLE requirements and pay his registration fee; and where he also engaged in dishonesty and falsely told a tribunal that he was authorized to practice by filing the appearance forms).

Three factors support a short suspension rather than censure in this matter. First, the goals of discipline include maintaining the integrity of the profession and safeguarding the administration of justice from reproach. The Hearing Board noted that it was "particularly mindful of these concerns here, given the nature of Respondent's employment" as an assistant state's attorney. (Hearing Bd. Report at 10.) It stated that "[t]he fact that an Assistant State's Attorney would practice law while not authorized to do so, especially over time, carries a particular risk of diminishing the public's perception of the integrity of the legal system." (Id.) We agree with its reasoning.

Second, the Hearing Board was clearly disturbed by Respondent's failure to recognize his wrongdoing, noting that he still does not understand his professional obligations. The extent to which a respondent realizes the seriousness of his misconduct is a factual determination to which this Board gives great deference. In re May, 93 CH 320 (Review Bd., Sept. 6, 1995), approved and confirmed, M.R. 11764 and 11457 (Dec. 1, 1995).

Third, the Hearing Board found that Respondent did not testify credibly when he claimed not to have received the impending-removal notice. Moreover, Respondent's testimony as to his March 2017 phone call with "Dee" could be viewed as a complete fabrication. An

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attorney's false testimony at his or her disciplinary hearing may be considered in aggravation. See In re Vavrik, 117 Ill. 2d 408, 415-16, 512 N.E.2d 1226 (1987); In re Stillo, 68 Ill. 2d 49, 55, 368 N.E.2d 897 (1977).

Based on these factors, we believe a short suspension is warranted. However, we also believe that the 60-day suspension recommended by the Hearing Board is longer than necessary and is not supported by authority. Instead, we would recommend a 30-day suspension, which we believe is more commensurate with Respondent's conduct and consistent with precedent.

One of the primary reasons for the Hearing Board's recommendation of a 60-day suspension is the large number of cases that Respondent handled during the time that he was removed from the master roll. But, a high volume of cases is part and parcel of an assistant state's attorney's practice. We have already taken into account Respondent's role as an assistant state's attorney in determining that suspension rather than censure is necessary to protect the integrity of the legal system. To further increase sanction simply because of the inherent nature of Respondent's practice seems akin to punishing him for choosing a career in public service as a prosecutor, rather than in civil practice.1

In addition, we note that, once Respondent's supervisor raised the issue of his unauthorized practice, Respondent got into compliance almost immediately, presumably because he realized the gravity of his situation. This demonstrates some acceptance of responsibility for his actions. It also leads us to believe that he committed his missteps, at least in part, because he was a new lawyer who did not fully understand the importance of adhering to all of the requirements of law practice in Illinois. This does not in any way excuse his misconduct, of course, which is why we recommend suspension rather than the reprimand or censure that

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Respondent seeks. We hope that a suspension will "impress upon Respondent the seriousness of his misconduct and the importance of fully complying with his duties as an attorney." (Hearing Bd. Report at 13.)

We also believe a 30-day suspension is supported by precedent. The censure cases cited above (Susman and Scott) involved more mitigation than is present here. Conversely, the cases imposing suspensions longer than 30 days (Stephens, Cooper, and James) involved additional misconduct not present here, including making false statements to a tribunal (Stephens and James), and making false statements during a sworn statement to the ARDC (Cooper). Even the 30-day-suspenion case (Bennett) involved aggravating factors not present here, including late registration in other years and prior discipline for conversion and unauthorized practice of law. On balance, though, we find the aggravating factors in this matter are on par with those in Bennett, and therefore that a similar sanction is warranted.

Accordingly, we recommend that Respondent be suspended for 30 days. We find this sanction to be commensurate with Respondent's misconduct, consistent with discipline that has been imposed for comparable misconduct, and sufficient to serve the goals of attorney discipline and deter others from committing similar misconduct.

CONCLUSION

For the foregoing reasons, we recommend that Respondent be suspended for 30 days.

Respectfully Submitted,

Leslie D. Davis
Charles E. Pinkston, Jr.
Esther J. Seitz

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CERTIFICATION

I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on August 11, 2020.

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

_______________________

1 The above-cited cases bear out this distinction. In those cases, each of the attorneys who handled a low number of matters while removed from the master roll maintained a civil practice; the volume of work thus reflected the nature of the practice.