Filed October 9, 2020

In re Charles Andrew Cohn
Respondent-Appellee/Cross Appellant

Commission No. 2018PR00109

Synopsis of Review Board Report and Recommendation
(October 2020)

The Administrator brought a two-count complaint against Respondent, charging him with engaging in misconduct by using vulgar and abusive language toward opposing counsel during a deposition and making false or reckless statements about a judge in the same matter.

The Hearing Board found that Respondent had engaged in the charged misconduct. It recommended that he be suspended for three months for his misconduct, and that he be required to complete the ARDC Professionalism seminar before being reinstated to practice.

The Administrator appealed, challenging the Hearing Board's sanction recommendation and asking, instead, that Respondent be suspended for longer than three months. Respondent cross-appealed, challenging evidentiary and procedural rulings, some of the Hearing Board's findings of misconduct, and its sanction recommendation.

The Review Board found no error in the hearing panel chair's rulings, and affirmed the Hearing Board's misconduct findings, finding that they were fully supported by the evidence. The Review Board also agreed with the Hearing Board's recommendation that Respondent be suspended for three months and until he completes the ARDC Professionalism seminar.

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

In the Matter of:

CHARLES ANDREW COHN,

Respondent-Appellee/Cross Appellant,

No. 6185255.

Commission No. 2018PR00109

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

SUMMARY

The Administrator brought a two-count complaint against Respondent, charging him with engaging in misconduct by using vulgar and abusive language toward opposing counsel during a deposition and making false or reckless statements about a judge in the same matter.

Following a hearing, the Hearing Board found that Respondent had engaged in the charged misconduct. It recommended that he be suspended for three months for his misconduct, and that he be required to complete the ARDC Professionalism seminar before being reinstated to practice.

The Administrator appealed, challenging the Hearing Board's sanction recommendation and asking, instead, that Respondent be suspended for longer than three months. Respondent cross-appealed, challenging evidentiary and procedural rulings, some of the Hearing Board's findings of misconduct, and its sanction recommendation.

For the reasons that follow, we affirm the Hearing Board's misconduct findings, and agree with its recommendation that Respondent be suspended for three months and until he completes the ARDC Professionalism seminar.

PAGE 2:

FACTS

Respondent

Respondent graduated from law school in 1983 and, since then, has been in private practice in a firm with his father. His firm handles plaintiffs' personal injury and workers' compensation matters, in addition to an occasional insurance declaratory judgment case. He has no prior discipline.

Respondent's Misconduct

During a deposition in an insurance matter in which he represented the plaintiff, and his opposing counsel, Keely Hillison, represented one of the defendant insurance companies, Respondent grew angry with Hillison's questioning of his client. When Hillison asked to certify a question that Respondent had instructed his client not to answer, Respondent told her to "certify your own stupidity." Hillison responded that she would not sit there and take insults from Respondent, to which Respondent replied that "a man who insults on a daily basis everybody he does business with has now been elected President of the United States. The standards have changed. I'll say what I want." (Hearing Bd. Report at 3-4.)

A short time later, Hillison asked a question of Respondent's client, and Respondent said, "Don't waste your breath." He then objected and told his client not to answer. When Hillison asked to certify the question, Respondent stated: "Motion for sanctions; indicate that on the record. I'm going to get sanctions against your firm like you wouldn't believe, bitch." (Id. at 4.)

Hillison filed a motion to compel Respondent's client to answer the questions he declined to answer at the deposition. In the motion to compel, she briefly mentioned Respondent's comments to her. At a hearing on the motion, the judge, Hon. Franklin U.

PAGE 3:

Valderrama, admonished Respondent for his behavior toward Hillison and allowed him to file a response to the motion to compel.

In the response to the motion to compel, Respondent included many statements about Judge Valderrama's conduct and demeanor at the hearing. He stated that he would have apologized to Hillison at the hearing but that "the court, in its anger, refused to let [Respondent] speak . . . ." He described Judge Valderrama as being "in a rage," and stated that the judge "flew into a rage of his own at this counsel for what was said in the deposition." He stated that, "in light of recent events, and most particularly the ?robe rage incident'" at the hearing, it was unclear whether his client would now suffer because of the "anger this court holds against his counsel." He continued by saying that Judge Valderrama "saw an angry situation develop and reacted in anger. It is always preferable if a judge is able to put out fires rather than pour oil on the flames." He stated that the "temper" that was displayed by Judge Valderrama "calls into question the impartiality of the tribunal." He said that he was sorry if Judge Valderrama considered his words to be a personal attack, but that he felt it "necessary to protect [his] client from the judicial anger that clearly occurred" at the hearing. (Hearing Bd. Report at 9.)

In his order regarding the motion to compel, Judge Valderrama addressed Respondent's behavior at the deposition, noting that Respondent's abusive language toward Hillison was disturbing and inexcusable. Judge Valderrama reported Respondent's conduct to the ARDC, which led to this disciplinary proceeding.

HEARING BOARD'S FINDINGS AND RECOMMENDATION

Misconduct Findings

The Hearing Board found that, during the deposition, Respondent directed abusive and vulgar language toward Hillison. It further found that the Administrator proved that

PAGE 4:

Respondent's conduct was intended to disrupt a tribunal; had no substantial purpose other than to embarrass, delay, or burden a third party; and was prejudicial to the administration of justice. It thus found that he had violated Illinois Rules of Professional Conduct 3.5(d), 4.4(a), and 8.4(d).

In making these findings, the Hearing Board found credible the testimony of Hillison and another attorney who was present at the deposition that Hillison did not engage in abusive or bullying behavior toward Respondent's client and that her questions were appropriate. It thus rejected Respondent's claim that he was merely trying to protect his client from abusive questioning by Hillison.

It also found credible Hillison's testimony that the comments made her feel embarrassed and verbally abused. It accepted Hillison's testimony that Respondent's comments affected her handling of the case by causing her to avoid pursuing settlement and to limit communications with Respondent.

The Hearing Board further found that Respondent made statements about Judge Valderrama's qualifications or integrity that were false or make with reckless disregard as to their truth or falsity, and that these statements prejudiced the administration of justice, in violation of Rules 8.2(a) and 8.4(d).

In reaching these findings, the Hearing Board rejected as not credible or persuasive Respondent's claim that he was simply expressing that Judge Valderrama was angry. It noted his use of the words "rage" and "robe rage," and found his words depicted the judge as being out of control and acting inappropriately while carrying out his judicial duties.

It found that Respondent had no reasonable belief for his statements about Judge Valderrama. Noting that a reasonable belief must be based on objective facts, and that subjective belief, suspicion, speculation, or conjecture does not constitute a reasonable belief, it found that

PAGE 5:

the evidence established that Judge Valderrama may have been unhappy or offended by Respondent's comments, but was not in a rage or even visibly angry. It accepted the testimony of Hillison and another attorney who was present at the hearing that Judge Valderrama's demeanor was calm. It thus found that Respondent's comments that Judge Valderrama "flew into a rage" and engaged in "robe rage" were false or made with reckless disregard as to their truth or falsity.

Similarly, it found that Respondent's statements impugning Judge Valderrama's impartiality were false or made with reckless disregard as to their truth or falsity, because Respondent had no objective basis to support his insinuation that the judge was no longer impartial in the matter.

Findings in Mitigation and Aggravation

In mitigation, the Hearing Board found that Respondent has been licensed to practice law since 1983 and has no prior discipline. It also noted that he serves as a zoning plan commissioner in his suburb.

In aggravation, it accepted Hillison's testimony that the incident caused her to feel embarrassed and worried about her reputation as a lawyer, and concerned that her client would view her negatively or would be upset about the publicity the case received. It found that Respondent's statement at his disciplinary hearing that the incident was not a "big deal" to Hillison indicated that he does not fully understand or acknowledge the negative impact of his words.

It further found that Respondent did not acknowledge any wrongdoing with respect to his statements about Judge Valderrama and, at hearing, continued to stand by those statements. It found this "troubling because we are not left with confidence that Respondent will refrain from making similarly improper statements in the future." (Id. at 15.)

PAGE 6:

The Hearing Board also noted that Respondent's conduct at his disciplinary hearing left it "concerned that he is not able to conduct himself in a professional and ethical manner when faced with stressful or adversarial circumstances." (Id. at 14.) It found that, when faced with situations that are typical in legal proceedings, such as adverse evidentiary rulings and argument by opposing counsel, Respondent "lash[ed] out" at Administrator's counsel and the hearing panel chair. (Id.)

Recommendation

The Hearing Board recommended that, for his misconduct, Respondent be suspended for three months and until he completes the ARDC Professionalism seminar.

ANALYSIS

Respondent challenges the Hearing Board's findings of misconduct regarding his statements about Judge Valderrama; the finding that his conduct prejudiced the administration of justice; certain evidentiary and procedural rulings; and the Hearing Board's finding that Respondent's conduct at his hearing aggravated his misconduct.

We find no error in the Hearing Board's rulings, nor in its findings regarding misconduct and aggravating and mitigating factors. We therefore affirm them.

1.    The Hearing Board did not err in finding misconduct in connection with Respondent's statements about Judge Valderrama's demeanor and impartiality 

a.    The Hearing Board's findings regarding Rule 8.2(a) are not against the manifest weight of the evidence

Respondent's challenge to the finding that he violated Rule 8.2(a) is based largely on his argument that Rule 8.2(a) is derived from defamation law, and that nothing he said about Judge Valderrama can be regarded as libel or slander under the common law of Illinois. But he has provided no authority for the proposition that the Hearing Board should have looked to common law regarding libel or slander, rather than disciplinary precedent regarding Rule 8.2(a),

PAGE 7:

to determine whether he committed misconduct. Moreover, this argument has no merit because this is a disciplinary matter, not a civil matter. See In re Huebner, 2011PR00129 (Review Bd., Jan. 22, 2014), at 6, approved and confirmed, M.R. 26649 (May 16, 2014) (declining to apply civil law to determine misconduct in a disciplinary case).

To the extent that Respondent's argument is a challenge to the factual underpinnings of the Hearing Board's finding that he violated Rule 8.2(a), Respondent has not shown that the factual findings should be reversed. In essence, he asks us to revisit those factual findings, in that he apparently disagrees with the Hearing Board's determinations of credibility and other fact-finding judgments. Under our standard of review, however, the issue is not whether we disagree with the Hearing Board's factual conclusions or might have reached a different conclusion if we had been the triers of fact. Rather, we defer to the factual findings of the Hearing Board, and will not disturb them unless they are against the manifest weight of the evidence. See, e.g., In re Milks, 99 CH 20 (Review Bd., July 2, 2003), at 3- 4, petitions for leave to file exceptions denied, M.R. 18895 (Nov. 14, 2003) ("Although an opposite inference may be supportable from the circumstantial evidence, the Hearing Board's finding is not against the manifest weight of the evidence, and we will not substitute our judgment for that of the Hearing Board") (citing In re Krasner, 32 Ill. 2d 120, 204 N.E.2d 10 (1965)).

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

PAGE 8:

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 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)).

Respondent has failed to show that the Hearing Board's findings are against the manifest weight of the evidence. To the contrary, the Hearing Board cited specific evidence, including testimony of witnesses whom it found credible, in support of its conclusion that Respondent's conduct violated Rule 8.2(a).

For example, the Hearing Board rejected as not credible Respondent's claim that, when he used the words "rage" and "robe-rage," he was "simply expressing that Judge Valderrama was angry." (Hearing Bd. Report at 10.) It concluded that "Respondent's words went far beyond saying that Judge Valderrama was angry, and instead depicted Judge Valderrama as being out of control and acting inappropriately while carrying out his judicial duties." (Id. at 10-11.) It found that "[t]he evidence established that Judge Valderrama was perhaps offended by or unhappy with Respondent's comments but he was not in a rage or even visibly angry." (Id. at 11.) The Hearing Board also found that both Ms. Hillison and Insure on the Spot attorney Mark Evans "credibly testified that Judge Valderrama's demeanor was calm." (Id.) The Hearing Board determined that, although "Respondent insist[ed] he perceived Judge Valderrama to have been angry, he [did] not identify any objective facts that support his perception of anger, much less rage." (Id.)

PAGE 9:

Similarly, the Hearing Board found that "Respondent ha[d] no objective basis to support the insinuation that Judge Valderrama was no longer impartial in the Green matter." (Id. at 12.) Noting that "a judge's opinions formed on the basis of events occurring during the course of proceedings do not constitute a basis for asserting the judge is biased or partial, unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible," the Hearing Board found that "[t]here was no such favoritism or antagonism demonstrated in the record before us." (Id. (citing Eychaner v. Gross, 202 Ill. 2d 228 (2002)).)

In addition, the record contains numerous instances where Respondent acknowledged that his statements against Judge Valderrama were merely expressions of his opinion. (See Report of Proceedings at 354, 357, 360, 484, 485, 487, 490.) When asked at hearing if there were facts to support his opinion, Respondent responded that he based his statements on his observation of Judge Valderrama, and that his "mind [was] good enough." (Id. at 369-70.) Such subjective beliefs are not enough to avoid a Rule 8.2(a) violation, and the record contains no evidence of any objective facts that would support Respondent's accusations against Judge Valderrama.

Accordingly, the Hearing Board's finding that Respondent made statements about Judge Valderrama's qualifications or integrity that were false or made with reckless disregard as to their truth or falsity, in violation of Rule 8.2(a), is not against the manifest weight of the evidence.

b.    The Hearing Board's finding that Respondent violated Rule 8.2(a) did not infringe on Respondent's First Amendment rights

Respondent contends that sanctioning him for what he said about Judge Valderrama violates his First Amendment rights because his statements were protected opinion statements. The Hearing Board fully addressed that argument in its report, finding that

PAGE 10:

Respondent's statements about Judge Valderrama had no factual basis and therefore fell into the category of unprotected speech. We agree with its sound analysis.

"While attorneys can legitimately criticize a judge or disagree with his or her rulings, an attorney cannot unjustly impugn the character or integrity of a judge without having any basis for doing so." In re Chiang, 07 CH 67 (Review Bd., Jan. 30, 2009), at 11, petition for leave to file exceptions denied, M.R. 23022 (May 18, 2009). "This is true even of statements which might appear to be matter of opinion, where those statements imply a factual basis and where there is no support for that factual basis." In re Kozel, 96 CH 50 (Review Bd., Dec. 30, 1999), at 14, petitions for leave to file exceptions allowed and sanction increased, M.R. 16530 (June 30, 2000).

Because we affirm the Hearing Board's findings that Respondent's statements lacked a factual basis and that he had no objective belief that they were true, we find that his First Amendment argument has no merit.

c.    The Hearing Board's finding that Respondent's conduct prejudiced the administration of justice, in violation of Rule 8.4(d), is not against the manifest weight of the evidence

Respondent contends that the finding that his conduct prejudiced the administration of justice is against the manifest weight of the evidence. He contends that his conduct at the deposition did not affect the result of the proceeding, and did not precipitate any filings other than the motion to compel to resolve a discovery dispute, which contained only one sentence discussing his conduct at the deposition and did not ask the judge to take any action regarding his conduct. He notes that, after Judge Valderrama ruled on the discovery dispute, the case proceeded normally to a conclusion. We reject these arguments and find that ample evidence supports the Hearing Board's finding of misconduct.

PAGE 11:

A respondent's conduct prejudices the administration of justice if it causes judges or other attorneys to perform additional work. See In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010), petition for leave to file exceptions denied and recommendation adopted, M.R. 24030 (Sept. 22, 2010) (respondent's conduct of attacking a judge's qualifications without any reasonable basis for doing so prejudiced the administration of justice because the judge had to issue orders specifically addressing the respondent's behavior).

Rather than simply deciding the discovery dispute, Judge Valderrama found it necessary to address Respondent's offensive statements during the deposition and his statements about the judge in his response to the motion to compel. Respondent's conduct thus caused the judge to perform additional work.

A respondent's conduct also prejudices the administration of justice if it has an impact on the representation of a client or the outcome of the case, undermines the judicial process, or jeopardizes a client's interests. See In re Forst, 2012PR00097 (Hearing Bd., 2012PR00097) at 12, approved and confirmed, M.R. 26462 (March 14, 2014) (respondent's delay in filing his client's petition for dissolution of marriage caused a delay in the finalization of the client's divorce and the determination of child support payments, in violation of Rule 8.4(d)).

Hillison testified that Respondent's conduct at the deposition derailed the possibility of settling his client's case, and that Respondent's conduct affected her handling of the case because she expected or anticipated more abuse from Respondent and felt the need to limit contact with Respondent to written communication. (See Report of Proceedings at 116, 195, 196.)

It is clear that evidence supports the Hearing Board's finding that Respondent's conduct caused additional work for Judge Valderrama and had an impact on the potential

PAGE 12:

resolution of the case. We therefore affirm the Hearing Board's finding that Respondent's conduct prejudiced the administration of justice, in violation of Rule 8.4(d).

2.    The hearing panel chair did not err in declining to admit a court order that Respondent sought to have admitted as character evidence

Respondent challenges an evidentiary ruling by the hearing panel chair not to admit an exhibit he proffered as evidence of his good character. The exhibit was an order in an unrelated federal case in which the federal judge complimented Respondent's demeanor. The order was issued between the first and second days of Respondent's disciplinary hearing; consequently, the federal judge was not disclosed as a witness prior to hearing; the Administrator did not have an opportunity to depose the federal judge; and the federal judge did not testify as a witness at Respondent's hearing. The hearing panel chair denied Respondent's request to admit the order into evidence, calling it an "improper effort to backdoor character evidence into the hearing." (Report of Proceedings at 425.)

A hearing panel chair's rulings on evidentiary issues will not be reversed unless the chair abused his or her discretion. In re Petrulis, 96 CH 546 (Review Bd., Dec. 9, 1999) at 14, approved and confirmed, No. M.R. 16556 (June 30, 2000). An abuse of discretion occurs only when no reasonable person would take the position adopted by the hearing panel chair. In re Wilson, 98 CH 69 (Review Bd., March 23, 2001), recommendation adopted, No. M.R. 17518 (Sept. 24, 2001).

The hearing panel chair did not abuse his discretion in declining to admit the federal court order. Commission Rule 273 provides that "[a]n affidavit or letter which attempts to establish the character or reputation of a respondent or petitioner shall not be admitted." While the court order was not technically an affidavit or letter, it would have served the same purpose - to provide documentary evidence of Respondent's conduct in the federal matter, rather

PAGE 13:

than testimonial evidence about Respondent's general reputation in the legal community. We therefore cannot say that the hearing panel chair acted unreasonably in declining to admit the court order. Cf. In re Applegate, 05 SH 40 (Hearing Bd., April 21, 2006) at 7, approved and confirmed, M.R. 20961 (Sept. 20, 2006) (Hearing Board refused to consider the Administrator's exhibit, which was a document that cast aspersions on respondent's character and was written by a person who did not testify).

In addition, the federal judge was not disclosed as a character witness. Commission Rule 253(b) states that "[t]he Hearing Board shall not allow the Administrator or the attorney-respondent to offer the testimony of any person whose identity and location is not disclosed in a report pursuant to this rule." Respondent admitted that he did not disclose the judge as a witness prior to the hearing, and there is no evidence that Respondent sought leave to file an amended Rule 253 statement. See Hoffman, 08 SH 65 (Review Bd., at 18-19) (no abuse of discretion to exclude testimony from witness who had not been timely disclosed as character witness, even though witness had been timely disclosed as fact witness).

In sum, the hearing panel chair acted in accordance with Commission rules in declining to admit the court order. This Board has found no abuse of discretion where the hearing panel chair abided by Commission rules. See In re Coyle, 2015PR00041 (Review Bd., Feb. 16, 2017), at 7, petition for leave to file exceptions denied and recommendation adopted, M.R. 28670 (May 18, 2017). We therefore find no abuse of discretion in the hearing panel chair's decision not to admit into evidence the court order.

3.    The hearing panel chair did not err in striking Respondent's First Affirmative Defense, in which he accused an inquiry panel member of having a conflict of interest

Respondent argues that the hearing panel chair erred in striking his First Affirmative Defense, in which he sought to dismiss with prejudice the disciplinary proceedings

PAGE 14:

against him, alleging that the chair of the first inquiry panel assigned to this matter had a conflict of interest in that, at one time, he worked at the same law firm as one of the Administrator's fact witnesses; that the chair did not disclose that conflict at hearing; and that the Administrator and his counsel knew about but did not disclose the conflict. Respondent further alleged that, even though the matter was reassigned to a different inquiry panel and subsequently reassigned again to a third panel, neither the second nor the third panel conducted a new hearing but presumably relied on the transcript from the first hearing, which was "irreparably tainted by the participation and questioning during said proceeding" by the first inquiry panel chair. (Answer at 12.)

The hearing panel chair struck the First Affirmative Defense and denied Respondent's motion to reconsider that order, concluding that the First Affirmative Defense and its corresponding exhibits violated Commission Rules 234 and 235.1 On appeal, Respondent argues that the hearing panel chair's decision was in error because an affirmative defense has nothing to do with Rule 234, which prohibits the filing of replies. He further argues that Rule 235 bars dispositive pre-hearing motions, but that an affirmative defense is a pleading, not a motion.

As with evidentiary rulings, this Board reviews a procedural ruling for an abuse of discretion. See Coyle, 2015PR00041 (Review Bd.), at 7 ("We defer to the hearing panel on evidentiary and procedural issues and decline to reverse sanction orders absent a clear abuse of discretion" (citations omitted)). An abuse of discretion occurs only when no reasonable person would take the position adopted by the hearing panel. Id. (citations omitted).

Again, this Board has found no abuse of discretion where the hearing panel chair abided by Commission rules. See id. We find that the hearing panel chair was properly following Commission Rules 234 and 235 in making his ruling. Specifically, we agree with the hearing

PAGE 15:

panel chair that the First Affirmative Defense alleged a new matter, in violation of Rule 234, and acted as a dispositive motion that sought dismissal of the proceeding prior to hearing, in violation of Rule 235. We therefore find that he did not abuse his discretion in striking the First Affirmative Defense.

4.    The Hearing Board did not err in finding that Respondent's conduct at hearing was aggravating

Respondent argues that the Hearing Board erred in finding that he was "intemperate" at his hearing. (Resp. Br. at 46.) He is referring to the Hearing Board's finding, in aggravation, that his conduct during his hearing "leaves us feeling concerned that he is not able to conduct himself in a professional and ethical manner when faced with stressful or adversarial circumstances." (Hearing Bd. Report at 14.) The Hearing Board noted, in particular, that Respondent's conduct toward Administrator's counsel was "unprofessional and hostile," including that he called her a "liar" and made demeaning remarks to her; and that, on another occasion, when he was unhappy with an evidentiary ruling, he threatened to leave the hearing. (Id. (citing Report of Proceedings at 382, 422, 522).)

Respondent argues that the record does not "unambiguously" show that he threatened to leave the hearing. (Resp. Br. at 46.) As for his referring to Administrator's counsel as a liar, he argues that "[t]his word is not profane, or even, in the proper context, offensive." (Id.) He also refers to it as "not an unfair conclusion" and "merely argument." (Id.)

Respondent also disputes the Hearing Board's findings in mitigation and aggravation in general, claiming that the Hearing Board ignored or minimized anything that was favorable to Respondent, including his contrition for insulting Hillison, and that it considered in aggravation unsubstantiated claims by Hillison that she was embarrassed by his conduct.

PAGE 16:

The findings in aggravation and mitigation are based largely on the Hearing Board's credibility findings as well as its observation of Respondent at his hearing. Respondent has provided no reason to disturb those findings, given the deferential standard of review that this Board must apply.

In addition, Respondent's argument on appeal attempting to justify his calling Administrator's counsel a liar is similar to his attempts to rationalize his behavior toward Hillison and Judge Valderrama, and buttresses the Hearing Board's concern about his ability to conduct himself in a professional and ethical manner when faced with stressful or adversarial circumstances. Moreover, on appeal, Respondent has continued to cast aspersions on Hillison by asserting that her testimony about the harm he caused her lacked credibility and citing to cases in which her firm was purportedly sanctioned.

In short, Respondent has given us no basis to overturn the Hearing Board's findings regarding mitigation and aggravation, particularly in connection with his conduct at his hearing.

RECOMMENDATION

The Hearing Board recommended a suspension of three months and until Respondent completes the ARDC Professionalism seminar. The Administrator and Respondent both challenge the sanction recommendation, with the Administrator arguing for a suspension of longer than three months2 and Respondent arguing for reprimand.

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

PAGE 17:

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).

Respondent contends that he should receive nothing more than a reprimand. He contends that he said only two objectionable things - the words "stupidity" and "bitch" - at the deposition, and that he has fully acknowledged that those two interruptions were wrongful. He contends that the actions of the respondents in the cases relied upon by the Hearing Board were significantly more egregious than his conduct. In contrast, he cites cases in which the respondents used highly offensive words against opposing counsel and were reprimanded or censured. See In re Cwik, 89 CH 690 (Review Bd., March 9, 1993) (reprimand of attorney who wrote a letter to opposing counsel containing highly offensive personal remarks, which he intended as a joke; when she did not see them as a joke, he wrote letter of apology to her and her law firm); In re Gerstein, 91 SH 354, petition to impose discipline on consent allowed, M.R. 7626 (Sept. 26, 1991) (censure of attorney who wrote and sent a letter that contained obscene, offensive, and vulgar language to female opposing counsel; mitigation included that he had sent her a letter of apology; aggravation included that attorney had been previously reprimanded for engaging in similar conduct). Respondent argues that comparing the offensive language that he

PAGE 18:

used with the offensive language used in Cwik, Gerstein, and the cases cited by the Hearing Board makes clear that, at the most, he should receive a reprimand.

The Administrator, in turn, contends that Respondent should be suspended for longer than three months, without suggesting a specific length of suspension. Notwithstanding that his counsel persuasively argued to the Hearing Board that a 90-day suspension was appropriate and supported by authority (see Report of Proceedings at 520, 521, 522, 542, 543), the Administrator takes the position on appeal that a three-month suspension does not accurately reflect the seriousness of Respondent's misconduct and the significant evidence in aggravation - primarily Respondent's conduct at his hearing.

During closing argument at Respondent's hearing, the Administrator's counsel cited four cases in support of a 90-day suspension, describing them at hearing as "very, very similar" to this matter. (Report of Proceedings at 522.) The Hearing Board ultimately cited these four cases as support for its recommendation of a three-month suspension.

We agree that the cases cited by the Administrator at hearing, and by the Hearing Board in its report, do indeed provide guidance as to an appropriate sanction in this matter, and support a three-month suspension. See In re Craddock, 2017PR00115 (Hearing Bd., Oct. 22, 2019), approved and confirmed, M.R. 030266 (March 13, 2020) (three-month suspension where attorney used gender-based vulgar language toward two female attorneys on three occasions; mitigation included no prior misconduct and eventual expressions of remorse and some willingness to take responsibility for his actions; aggravation included a pattern of misconduct, harm to the women involved, failure to show immediate remorse, and continued assertions that the attorney was provoked by the female attorneys, which indicated that he had not truly accepted full responsibility for his actions); In re Moore, 2015PR00076 (Review Bd., June 6,

PAGE 19:

2017), approved and confirmed, M.R. 028896 (Sept. 22, 2017) (60-day suspension where attorney left offensive and derogatory voicemail messages, including profanity and ethnic and racial slurs, in two separate matters, and neglected a criminal appeal in a third matter; mitigation included no prior misconduct and expression of regret for his anger; aggravation included that attorney left offensive voicemails in second matter shortly after giving sworn statement in first matter in which he expressed regret for the language he used and suggested he had learned something from the experience); In re O'Shea, 02 SH 64 (Review Bd., July 16, 2004), petitions for leave to file exceptions allowed, M.R. 19680 (Nov. 17, 2004) (five-month suspension where attorney wrote insulting and degrading gender-based remarks about a female opposing counsel in a letter to the ARDC and engaged in a conflict of interest; aggravation included that the attorney maintained that he had a right to say what he did and made no apology for the letter, and made similar insulting comments about various participants in the disciplinary process in the brief he submitted to the Review Board); In re Novoselsky, 2011PR00043 (Review Bd., April 10, 2015), petition for leave to file exceptions allowed, M.R. 27419 (Sept. 21, 2015) (six-month suspension where attorney made improper and harassing remarks to his opposing counsel and others over the course of several years, and engaged in significant additional misconduct in other matters; mitigation included no prior misconduct, pro bono and other volunteer work, and character testimony; aggravation included refusal to acknowledge he did anything wrong, no expression of remorse, and incredible testimony during his hearing, which demonstrated a "complete lack of understanding of his obligations").

The foregoing cases involve misconduct that is either similar to or more egregious than Respondent's, with similar or more egregious aggravating factors. We thus see no

PAGE 20:

compelling reason to depart from the Hearing Board's recommendation of a three-month suspension, which is fully supported by authority.

In fact, to Respondent's point, these cases arguably could support a suspension of less than three months. However, as the Hearing Board expressly and properly took into account, Respondent's conduct at his hearing raises concerns about his ability or willingness "to conduct himself in a professional and ethical manner when faced with stressful or adversarial circumstances." (Hearing Bd. Report at 14.) That aggravating factor convinces us that a three-month suspension is warranted.

Accordingly, we recommend that Respondent be suspended for three months. 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.

We also agree with the Hearing Board that Respondent would benefit from a review of his professional responsibilities, and therefore recommend that he be required to complete the ARDC Professionalism seminar before being reinstated to law practice.

CONCLUSION

For the foregoing reasons, we affirm the Hearing Board's findings of misconduct and, for that misconduct, recommend that Respondent be suspended for three months and until he completes the ARDC Professionalism seminar.

Respectfully Submitted,

Leslie D. Davis
Bradley N. Pollock
Benedict Schwarz, II

PAGE 21:

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 October 9, 2020.

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

_______________________

1 Commission Rule 234 provides: "No reply shall be filed by the Administrator. Any new matter alleged in the respondent's answer shall be deemed denied." Commission Rule 235 provides, in pertinent part: "To facilitate the development of a full evidentiary record in matters other than default proceedings, dispositive motions such as those seeking summary judgment or dismissal prior to completion of the evidentiary record on charges shall not be permitted."

2 The Administrator agrees with the Hearing Board's recommendation that Respondent be required to complete the ARDC Professionalism course.