Filed October 26, 2020
In re Maurice James Salem
Supreme Court No. M.R. 29861
Commission No. 2019PR00035
Synopsis of Hearing Board Report and Recommendation
Petitioner was licensed to practice law in New York in 2003 and thereafter moved to Illinois. Although he was never admitted to practice law in Illinois, Petitioner represented clients in Illinois state court on a pro hac vice basis. On January 29, 2019 the Illinois Supreme Court suspended Petitioner for 90 days until further order of Court.
Petitioner filed a petition requesting reinstatement to his pre-disciplinary status of being able to practice law in Illinois on a pro hac vice basis, and the Administrator filed objections. After considering the six factors set forth in Supreme Court Rule 767 as well as other evidence, the Hearing Board concluded that Petitioner had not met his burden of proving his good character, current knowledge of the law and rehabilitation. The Hearing Board is recommending the petition be denied.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
MAURICE JAMES SALEM
Supreme Court No. M.R. 29861
Commission No. 2019PR00035
REPORT AND RECOMMENDATION OF THE HEARING BOARD
SUMMARY OF THE REPORT
Petitioner was licensed to practice law in New York in 2003. He has never been admitted to the bar in Illinois, but has represented clients in state court matters pursuant to Supreme Court Rule 707, which allows an out-of-state attorney to provide legal services on a pro hac vice basis under specified circumstances. On January 29, 2019, the Illinois Supreme Court suspended Petitioner for 90 days until further order of the Court for misconduct related to his holding himself out as an Illinois attorney.
Petitioner is seeking reinstatement to his pre-disciplinary status of an unlicensed attorney eligible to apply for pro hac vice status in Illinois. The Hearing Board determined he has not proved his rehabilitation, good character and current knowledge of the law by clear and convincing evidence, and recommends the Petition for Reinstatement be denied.
A hearing on the Petition for Reinstatement of Maurice James Salem ("Petitioner") was held on February 19 and 20, July 23 and August 7, 2020 before a hearing panel consisting of Heather A. McPherson, Chair, Carol A. Casey and Charles A. Hempfling. The first two days of
hearing were held at the offices of the Attorney Registration and Disciplinary Commission ("ARDC"), and the final two days were conducted by remote video conferencing. Petitioner appeared pro se and the Administrator was represented by Jonathan M. Wier and Melissa Smart.
PETITION AND OBJECTIONS
On May 2, 2019 Petitioner filed a Petition requesting reinstatement to his pre-discipline status of practicing in Illinois as an out-of-state attorney. On May 28, 2019 the Court directed that proceedings in this matter follow the framework of Supreme Court Rule 767 and Commission Rules 400-415, which govern attorneys seeking to be reinstated to the roll of attorneys admitted to practice in Illinois. (Adm. Ex. 1).
On January 10, 2020, the Administrator filed objections to the Petition, and on February 18, 2020, Petitioner filed a response to the objections.
Petitioner testified on his own behalf and called eight witnesses. The Administrator called four witnesses and Petitioner. Petitioner's exhibits 1-6, 8-11, 13, 14 (in part) and Administrator's exhibits 1-6, 8-22, 29-41, and 101-149 were admitted into evidence.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A petitioning attorney seeking reinstatement to the practice of law has the burden of proving by clear and convincing evidence that he or she should be reinstated. In re Richman, 191 Ill 2d 238, 730 N.E.2d 45 (2000). In considering a petition for reinstatement, the focus is on the attorney's rehabilitation, present good character and current knowledge of the law, with rehabilitation being the most important consideration. In re Martinez-Fraticelli, 221 Ill 2d 255, 850 N.E.2d 155 (2006); In re Fleischman, 135 Ill 2d 488, 533 N.E.2d 352 (1990). There is no presumption in favor of reinstatement. Richman, 191 Ill 2d at 247-48.
Supreme Court Rule 767(f) sets forth the following factors to be considered in determining whether reinstatement is appropriate: (1) the nature of the misconduct for which the petitioner was disciplined; (2) the maturity and experience of the petitioner at the time discipline was imposed; (3) whether the petitioner recognizes the nature and seriousness of the misconduct; (4) when applicable, whether petitioner has made restitution; (5) the petitioner's conduct since discipline was imposed; and (6) the petitioner's candor and forthrightness in presenting evidence in support of the petition.
In 2003 Petitioner was admitted to the New York Bar and to the general bar of the District Court for the Northern District of Illinois. He has also been admitted to other federal courts, including the Seventh Circuit Court of Appeals. In or about 2004 he moved to Illinois, but also maintained a residence in New York for a number of years. (Jt. Stip. 1, 2; Tr. 249-50).
Petitioner has never been licensed to practice law in Illinois. On July 20, 2006 the Committee on Character and Fitness of the Illinois Board of Admissions denied his application for admission to the Illinois bar based, in part, on his pro hac vice practices, and subsequent requests for a new hearing were denied. As a result, Petitioner has focused his practice primarily on federal court matters, but also has handled Illinois state court cases pursuant to Supreme Court Rule 707, which allows an out-of-state attorney to provide legal services on a pro hac vice basis under specified circumstances. (Jt. Stip. 1; Tr. 165, 249, 492, 520-22, 575; Adm. Ex. 29).
On January 29, 2019, the Illinois Supreme Court suspended Petitioner for 90 days until further order of the Court. Based on that order, he was suspended from practice in the Northern District of Illinois on March 13, 2019, and in New York state court on March 18, 2020. Petitioner testified he is asking for reinstatement in Illinois in order to be reinstated to the bar in
New York and federal courts. He gave his assurance that if his petition is granted, he will never appear pro hac vice in Illinois again. (Jt. Stip. 13; Tr. 577, 583-86, 641; Adm. Ex. 34, 148).
I. Nature of misconduct for which petitioner was disciplined
A. Evidence Considered
In April 2016, the Administrator filed a four-count Complaint against Petitioner alleging, among other things, that he engaged in the unauthorized practice of law, established a systematic or continuous presence in Illinois, and dishonestly held himself out as an Illinois attorney. After a hearing, the Hearing Board found that Petitioner violated Rule 5.5(b)(2) by holding himself out as an Illinois attorney to a judge before whom he was appearing. Specifically, the Board found that in 2013 Petitioner sent a letter to the judge using letterhead that improperly implied he was an Illinois attorney. The Hearing Board determined Petitioner's act was not intentional, he did not hold himself out to the general public as an Illinois attorney, he did not act dishonestly and did not engage in any other misconduct. As aggravating factors, the Board considered that Petitioner engaged in the unauthorized practice of law by representing a client in two tax appeals without complying with the rule regarding pro hac vice representation, and he improperly stated on his business card that he had associates when, in fact, he had none. Those acts are prohibited by Rules 5.5(a) and 7.5(d). The Hearing Board recognized that the case was one of first impression in Illinois and recommended Petitioner be censured for the single proven charge of misconduct, in conjunction with the aggravating factors. (Tr. 591-94; Adm. Ex. 30; Pet. Ex. 1).
On exceptions filed by the Administrator, a majority of the Review Board agreed with the Hearing Board's finding of one instance of misconduct and, like the Hearing Board, recommended a censure. A dissenting member agreed with the finding of misconduct, but believed Petitioner also held himself out as an Illinois attorney to the public, and therefore would have recommended a suspension of 30 days. (Adm. Ex. 31; Pet. Ex. 2).
The Administrator filed a Petition for Leave to File Exceptions to the Review Board report pursuant to Supreme Court Rule 753 urging the Court to reverse the Board's determinations that Petitioner did not hold himself out to the public as an Illinois attorney and that he did not do so dishonestly, and to impose a suspension of 90 days until further order of the Court. Rule 753 requires that the petition contain a statement of points relied upon for rejection of the Review Board report, a statement of facts necessary to an understanding of the case, and an argument as to why review is warranted and why the Review Board report should be rejected. Petitioner testified he did not file a response, as Rule 753 does not require one. (Jt. Stip. 9; Tr. 600; Adm. Ex. 32).
On January 29, 2019 the Supreme Court entered an order stating, in its entirety:
Petition by the Administrator of the Attorney Registration and Disciplinary Commission for leave to file exceptions to the report and recommendation of the Review Board. Allowed. Respondent Maurice James Salem is suspended from the practice of law for ninety (90) days and until further order of the Court.
(Adm. Ex. 33).
Following the imposition of discipline by the Illinois Supreme Court, Petitioner was suspended from practicing law in the United States District Court for the Northern District of Illinois. On May 10, 2019 the district court's Executive Committee denied Petitioner's motion for reinstatement. In the Committee's opinion, when the Supreme Court "allowed" the Administrator's exceptions and imposed the lengthier suspension proposed by the Administrator, it was adopting the Administrator's 29-page petition, which argued that Petitioner dishonestly held himself out to the public as an Illinois attorney. (Adm. Exs. 8, 34).
B. Analysis and Conclusions
The severity of the misconduct leading to discipline is an important factor in determining whether reinstatement is warranted. Richman, 191 Ill 2d 238. In this case, the only specific
finding of misconduct was made by the Hearing and Review Boards. At a minimum, Petitioner violated Rule 5.5(b) by holding himself out as an Illinois attorney to a state court judge. The Hearing Board made that finding, the Review Board agreed with it, and no exceptions were filed with the Supreme Court as to that issue.
With respect to the Supreme Court's allowance of the Administrator's Petition for Leave to File Exceptions and increase of Petitioner's discipline to that urged by the Administrator, it is tempting for us to conclude the Court agreed with the totality of the Administrator's arguments and imposed the suggested sanction accordingly. We decline to make that assumption, however, without specific language or direction from the Court. While the Administrator's arguments clearly informed the Court's decision, especially since those arguments were the only ones presented, the possibility exists that the Court may have agreed with only a portion of the Administrator's position. The fact the Executive Committee of the Northern District of Illinois concluded differently, does not change our opinion.1
Our analysis of this factor does not depend on a definitive interpretation of the Court's order, however, for even assuming the Court agreed with the totality of the Administrator's position, we would not find the resulting misconduct to be a bar to reinstatement. Our determination is based on a review of cases where attorneys, who engaged in much more severe misconduct, were reinstated to practice. See, e.g., Martinez-Fraticelli, 221 Ill. 2d 255 (attorney disbarred for criminal conviction stemming from participation in ghost payroll arrangement); In re Pawloski, 2015PR00099, M.R. 27678 (Jan. 13, 2017) (attorney disbarred on consent for converting funds from three estates, neglecting client files, engaging in unauthorized practice of law and acting dishonestly); In re Stepter, 07 RT 3008, M.R. 21968 (Sept. 22, 2009) (attorney
disbarred for use of illegal substances, engaging in unauthorized practice of law, and accepting legal fee without informing client of suspension).
In addition, we consider that Petitioner's misconduct was not related to any client complaints and he is well beyond the initial 90-day suspension period ordered by the Court. With the foregoing facts and cases in mind, we conclude the nature of Petitioner's misconduct, by itself, should not defeat reinstatement.
II. Petitioner's Maturity and Experience at time of Misconduct
A. Evidence Considered
We consider the evidence previously summarized, along with the following evidence.
At the time of Petitioner's misconduct found by the Hearing Board, he was in his fifties and had been practicing as a lawyer for ten years. Prior to his admission in New York, he worked as a law clerk for the Westchester County Attorney's office in New York for approximately twelve years. (Tr. 247-48; Adm. Exs. 18, 30).
B. Analysis and Conclusions
Youth or lack of experience is a relevant factor for consideration because either circumstance can explain an attorney's lack of judgment in a given situation. In re Juliano, 2011PR00032, M.R. 24589 (Sept. 12, 2013) (Hearing Board at 20). At the time of Petitioner's misconduct and discipline, he was a mature adult, had substantial legal experience, and had been through a character and fitness proceeding which focused, in part, on his pro hac vice practices. Given those circumstances, he should have realized the impropriety of his actions and exercised better judgment. Accordingly, we find this factor weighs against Petitioner.
III. Petitioner's Recognition of the Nature and Seriousness of the Misconduct
A. Evidence Considered
We consider the evidence in the preceding sections, along with the following evidence.
Petitioner maintained in his Petition for Reinstatement and at hearing, as well as in communications with other entities, that he was disciplined for committing one unintentional act. Specifically he represented that his misconduct consisted of filing an erroneous appearance form in state court on behalf of his wife, which thereby caused the judge to believe he was an Illinois attorney. Petitioner testified he now agrees with the dissenting member of the Review Board who would have found an additional violation of Rule 5.5(b) based on his taking advantage of his pro hac vice status to practice law in Illinois. (Tr. 252-57; Adm. Exs. 2, 41, 118; Pet. Ex. 1).
Petitioner testified he accepts the Hearing Board's finding of misconduct, the aggravating circumstances referenced by the Hearing Board, the censure recommended by the Hearing Board and majority of the Review Board, and even the 30-day suspension recommended by the dissenting member of the Review Board. He stated that he takes responsibility for his actions. (Tr. 257, 545-46, 594-95, 640).
With respect to the Supreme Court's order allowing the Administrator's exceptions and imposing a suspension until further order of the Court, in Petitioner's opinion the Court is not a fact finder and therefore, while the Court could change the sanction recommended by the Hearing and Review Boards, it could not reverse any of the Hearing Board's findings. Petitioner repeatedly denied being disciplined for any conduct other than that found by the Hearing Board, and believes the order suspending him for 90 days and until further order for a "minor" violation was "shocking." He was further shocked that the order was entered without giving him an opportunity to reply to the Administrator's argument and without conducting proceedings. In his view, the rules governing ARDC proceedings were not followed. (Tr. 253-58, 508, 546, 550-52, 600-601, 605-607; Adm. Ex. 31; Pet. Ex. 3)
Following the conclusion of the 90-day portion of the Court's suspension order, Petitioner filed a motion asking the Court to vacate the suspension order or terminate his suspension. At about the same time, he filed a motion for reinstatement in the federal district court. Both motions were denied by the respective tribunals. The district court's Executive Committee criticized Petitioner for trying to blame an ARDC attorney for unjust treatment and attempting to re-litigate the Illinois Supreme Court's order. In a subsequent motion for clarification to the district court, Petitioner represented that his suspension was for only three months. Petitioner testified he did not understand the language "until further order of the Court" at the time he filed the motions, and did not research the issue. In denying Petitioner's motion, the Executive Committee again observed that Petitioner was attempting to re-litigate the Supreme Court's finding and decision. (Tr. 257, 581, 654-58; Adm. Exs. 1, 8, 13).
B. Analysis and Conclusions
Expressions of remorse and acknowledgments of wrongdoing have been found to be indications that a petitioner recognizes the nature and seriousness of his misconduct. See Martinez-Fraticelli, 221 Ill. 2d at 276; In re Parker, 149 Ill 2d 222, 235-36, 595 N.E.2d 549 (1992). Attempts to minimize, rationalize, or portray oneself as a victim are signs that an attorney does not appreciate the seriousness of his behavior. See In re Livingston, 133 Ill. 2d 140, 143, 549 N.E.2d 342 (1989); In re Gottlieb, 109 Ill. 2d 267, 270-71, 486 N.E.2d 921 (1985). Although Petitioner acknowledged the misconduct found by the Hearing Board, we find he repeatedly trivialized and mischaracterized that misconduct, failed to recognize that the Court viewed his actions as very serious (as evidenced by the sanction it imposed), and failed to respect the Court's authority to review findings.
It is apparent that the Supreme Court was very concerned with Petitioner's practices in holding himself out as an Illinois attorney, and considered his conduct to be far more than a
"minor" violation of the Rules. The Court has stated that a suspension "until further order of court" is the most serious sanction, next to disbarment, that can be imposed. In re Timpone, 208 Ill 2d 371, 386, 804 N.E.2d 560 (2004). Further, the condition is typically imposed where there is a pattern of misconduct or a lack of evidence that an attorney is willing and able to meet standards of conduct in the future. See In re Houdek, 113 Ill 2d 323, 327, 497 N.E.2d 1169 (1986). For an attorney with years of experience to claim that he was suspended indefinitely for a single minor act and to label that decision as shocking, as Petitioner did, is disingenuous. Petitioner admittedly did not conduct any research as to the significance of a suspension "until further order of Court."
Petitioner's argument that the Supreme Court cannot make any decision other than modifying a sanction is contrary to case law, and we regard his position as evidence of his refusal to accept the Court's decision and authority. See In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 941 (2006); In re Discipio, 163 Ill 2d 515, 527-28, 645 N.E.2d 906 (1994). He further attempted to undercut the legitimacy of the Court's decision by contending he was not given an opportunity to present his views. Supreme Court Rule 753 sets forth a procedure by which the opposing party may, if they choose to do so, respond to a petition for leave to file exceptions and set forth reasons why the request should not be granted. Petitioner did not avail himself of that opportunity. Finally, Petitioner challenged the Supreme Court's decision and authority in his federal court filings, which the Executive Committee characterized as misguided attempts to re-litigate the discipline imposed by the Illinois Supreme Court.
We are also disturbed by Petitioner's mischaracterization of the Hearing Board's finding of misconduct. On numerous occasions, including multiple times during his testimony, he stated that the Hearing Board found he made an inadvertent error in completing an appearance form.
While the Administrator had alleged that Petitioner improperly completed an appearance form on behalf of his wife, the Hearing Board specifically found no violation as to that conduct. Rather, the misconduct found by the Hearing Board pertained to Petitioner's use of letterhead that failed to clarify he was not licensed to practice in Illinois. Although the alleged acts were similar in that they both involved potential Rule 5.5(b)(2) violations and occurred before the same judge, it is disconcerting that Petitioner has not read the Hearing Board decision closely enough to determine the precise nature of the finding.
Petitioner's dismissive attitude toward his misconduct, his efforts to trivialize it, his failure to respect the Supreme Court's decision and authority, his failure to understand his discipline, and his inability to correctly identify the Hearing Board's finding, all detract from any acknowledgement of wrongdoing on his part. We find, therefore, that this factor weighs against reinstatement.
IV. Payment of Restitution
The payment of restitution is not an issue in this proceeding.
V. Petitioner's Conduct Since Discipline was Imposed
A. Evidence Considered
Petitioner testified that since his suspension in January 2019, he has spent time studying psychology and stoicism, and practices cognitive behavioral therapy to relieve his anxiety and depression. He also has worked on a physics theory, which resulted in his self-publishing a book on quantum magnetic force. He denied creating any legal documents during his suspension. (Tr. 510, 523-26).
Action by Federal Court
As stated in section I, on March 13, 2019 the Executive Committee of the Northern District of Illinois entered an order of reciprocal discipline suspending Petitioner for 90 days
until further order of the Illinois Supreme Court, retroactive to January 29, 2019. On March 20, 2019 a District Court judge provided Petitioner with a copy of the March 13, 2019 suspension order. (Jt. Stip. 14; Tr. 651-52; Adm. Ex. 34).
At the time of Petitioner's federal court suspension, attorney Deanne Medina was representing the plaintiff in a federal court action, Howard v. Four Partners Petroleum, Inc., 18 C 00572, against defendants represented by Petitioner. On March 28, April 10, and April 13, 2019 Medina received emails from Petitioner in which he discussed dates for depositions, requested tax returns and other documents, and promised to produce documents by a specific date. On May 1, 2019 when Medina inquired about overdue discovery, Petitioner replied that he would have a response by the following Tuesday. Petitioner further advised that his clients may have to retain new counsel. During the foregoing communications, Petitioner did not indicate he was suspended, and Medina believed he was a licensed attorney. (Tr. 429-38; Adm. Exs. 113-17).
Medina learned about Petitioner's suspension on May 7, 2019 when she saw an order from the Executive Committee. She testified she was shocked and after consulting with her colleagues, she wrote to the Committee advising of her communications with Petitioner, his appearance in her case, and his appearance in two other cases before the district court. (Tr. 438-42; Adm. Ex. 14).
On June 11, 2019, the Executive Committee issued a Rule to Show Cause referencing Petitioner's emails with Medina and directing him to explain why he should not be disciplined for practicing law while under suspension. On June 24, 2019 Petitioner filed a response denying he had done any legal work after learning of his federal court suspension. On June 25, 2019 the Committee rejected Petitioner's explanations and suspended him for three months, with the
March 13, 2019 order also remaining in effect. (Tr. 259, 448, 660-62; Adm. Exs. 14, 15, 37; Pet. Exs. 4, 5).
Petitioner testified he sent emails extending the dates of depositions with the hope he would be reinstated by the rescheduled dates. At the time, he was not aware "until further order" meant he had to apply for reinstatement, and he was concerned his client would be subject to a default. He now admits he used poor judgment, his emails were inappropriate, and the Executive Committee was correct. He acknowledges he was at fault and feels bad about his actions, but stated he acted in good faith. (Tr. 259-61, 512, 553-55, 661-63, 809; Pet. Ex. 6).
Medina testified Petitioner's participation in the case after his suspension delayed the case while his clients sought new counsel. She feels Petitioner was not honest and she would not trust him again. (Tr. 446-47).
Additional Post-Discipline Email Communications
Prior to Petitioner's suspension in January 2019 and over the course of many years, Petitioner represented members of the Sharif family, including Richard Sharif and his sisters Haifa and Ragda, in various court matters relating to Richard's divorce and bankruptcy. Richard Sharif testified he was informed of Petitioner's suspension in February or March 2019, and understood it resulted from non-criminal conduct years earlier. He denied that Petitioner represented his family or communicated with them after the suspension, other than to turn over records and documents for their new attorney. Richard noted that Petitioner had accumulated boxes of documents over the course of years, and his sister's new attorney was constantly requesting information. (Tr. 45-50, 54, 60-63, 77, 80, 82, 99-100).
Emails admitted into evidence show that following Petitioner's suspension on January 29, 2019, he communicated with members of the Sharif family, or counsel representing them, and
often sent them pleadings or legal forms regarding their pending matters in Illinois or federal courts. Specific communications include an April 25, 2019 email from Petitioner to Richard attaching an unfiled "Motion to Seek Residence," which motion reflects it was being brought by attorney Becky Dahlgren on behalf of Richard. Petitioner's email states "before we forward this to Becky, lets discuss." Petitioner testified he drafted the motion prior to his suspension, and wanted to discuss whether Richard needed a new attorney. Richard did not recall discussing the motion and testified he gave it to Dahlgren to file. (Tr. 79-80, 685-86; Adm. Ex. 104).
On May 13, 2019 Petitioner sent Richard a blank power of attorney for property, which Petitioner believed was permissible. Richard denied that Petitioner advised him how to complete the form and noted he could have obtained it on-line. (Tr. 90, 100, 580, Adm. Ex. 111).
On May 30, 2019 Petitioner emailed Richard to advise that Haifa should file a pro se appearance in a bankruptcy matter in which Petitioner had represented her. On June 26, 2019 he forwarded a pro se appearance and disclosure statement that he completed for Ragda in a federal court matter. Petitioner noted anyone could have completed the form, it was not a legal document, he had a responsibility to ensure his clients did not lose their cases because of his suspension, and he could not find another attorney to take the case. He does not believe his action was inappropriate, although in a prior deposition he stated it was inappropriate. Also on June 26, 2019, Petitioner sent a completed attorney appearance form and amended notice of appeal to Haifa's new attorney for filing. (Tr. 764-71; Adm. Ex. 123, 125, 126).
On July 24, 2019 Petitioner sent an email to an attorney representing Haifa Sharif in a bankruptcy matter and referred to Haifa as "our mutual client." Petitioner identified himself as a New York lawyer, but asked for mail to be sent to his Illinois address. He acknowledged he did
not remove his Illinois address from the signature portion of his emails during his suspension. (Tr. 787, 791-92; Adm. Ex. 131, 135).
On August 26, 2019, Petitioner sent Richard an email and attached a document to be signed by Richard and his sisters waiving any conflict of interest in having Haifa's new attorney represent all of them in a bankruptcy matter. At his deposition Petitioner admitted drafting the waiver document, but at hearing he denied drafting it. Richard testified the waiver was drafted by the new attorney and forwarded by Petitioner. (Tr. 92-94, 775-76; Adm. Ex. 127).
In October 2019 Petitioner emailed Richard with copies of an unfiled amended complaint and motion to amend in a case Ragda brought against Sharif's ex-wife. The pleadings indicate Ragda was appearing pro se. Petitioner denied drafting the documents or working on them, and testified he was merely transmitting them to Richard at Ragda's request. At his earlier deposition, he denied authoring the email, and stated his computer may have been hacked or his wife may have sent the email. Richard testified Ragda drafted the pleadings, which Petitioner forwarded to him for review. (Tr. 65-79, 515, 542-44, 681-83; Adm. Exs. 10, 101, 102, 104).
In addition to the foregoing, on several occasions Petitioner sent recently issued court orders to Richard in his pending court cases. In one email Petitioner advised Richard of action he could take based on the court's order, and then stated "[l]et's discuss later." Petitioner testified he was merely giving general advice to a close friend, although in a prior deposition he acknowledged he was giving legal advice. (Tr. 683, 693-96, 779; Adm. Exs. 103, 109, 128).
Seventh Circuit Appeals
During the summer of 2019, Petitioner exchanged numerous emails with attorney Larry Karlin, who was succeeding Petitioner as counsel for appellant in two Seventh Circuit appeals. As to one case, Petitioner advised Karlin that no reply brief was needed and as to the other case,
he advised Karlin to file a short reply brief that Petitioner had drafted prior to his suspension. Petitioner also offered to prepare, and then did prepare and send to Karlin, a completed corporate disclosure statement and appearance form. Petitioner viewed that work as helping his client obtain new counsel and denied it was inappropriate. Petitioner and Karlin also exchanged emails regarding oral arguments. (Tr. 789-94; Adm. Exs. 132, 133, 138; Pet. Exs. 10, 11).
At the time Petitioner was suspended, he was handling a personal bankruptcy matter for Lewis Borsellino in federal court before Judge Baer. He acknowledged he did not inform Judge Baer of his suspension. In April 2019 Petitioner sent an email to opposing counsel asking him to review attached stipulations "and call me to discuss any modifications," and to set dates for depositions. Petitioner then emailed Borsellino with a request to review the stipulations and be prepared to discuss possible exhibits or witnesses for trial. Petitioner also requested a payment of $3,000 by PayPal and asked Borsellino to designate the funds as payment to a relative or friend, because a payment to a business would incur an extra charge. (Tr. 213, 223-30, 648-50, 798, 801; Adm. Exs. 139- 41).
Borsellino testified he provided all discovery documents and witness names to Petitioner prior to the end of 2018, and stipulations were also prepared at that time. Borsellino and Petitioner both testified the payment request was for services rendered in 2018. Petitioner acknowledged he was wrong to continue email discussions on a pending case. (Tr. 226, 239-40, 796-800; Pet. Ex. 9).
On May 29, 2019, Petitioner forwarded a court ordered briefing schedule to Borsellino with the message "let's discuss." He testified his intention was to discuss Borsellinos's search for new counsel. Borsellino recalled when they spoke, Petitioner stated he could no longer
represent Borsellino because he had not been successful in appealing his suspension, and advised Borsellino should find new counsel or proceed pro se. Borsellino denied they discussed the substance of the pending motion. (Tr. 222, 232-36, 241, 802; Adm. Ex. 143).
On several occasions between March and July 2019, Petitioner received requests from individuals for assistance with new matters. In his email responses he did not indicate he was suspended from practice in Illinois and the Northern District federal court. For a bankruptcy matter, he requested financial documents and with respect to an immigration matter, he forwarded a retainer agreement. As to the latter, Petitioner testified he was not suspended in New York or New York federal court and he provided his New York address. He acknowledged also including his Illinois address and phone number. With respect to individuals who inquired about a collection matter and a power of attorney, he responded "call me." Petitioner testified he told the person who requested a power of attorney that he could not represent her, but he did send a blank form. (Tr. 696-98, 749, 803-806; Adm. Exs. 110, 112, 144, 145).
Unpaid Sanction and Other Financial Obligations
In 2017 Petitioner filed a case on behalf of Terry Zausa in federal court in Indiana based on diversity jurisdiction. John Terpstra, an Indiana attorney representing third party respondent Mike Pellin, testified Petitioner's assertion of diversity jurisdiction was frivolous. On March 1, 2018, the matter was dismissed and Petitioner was subsequently ordered by Judge Moody to pay Pellin $6,494 391 for having to defend a frivolous claim. The judge noted that a similar action filed by Petitioner on behalf of Zausa in Illinois had been dismissed for the same reason. On November 1, 2018, the Seventh Circuit Court of Appeals found Petitioner's persistent claims regarding diversity to be confounding and frivolous, and upheld the sanction. Zausa v. Zausa, Case No. 18-1896 (7)th Cir. 2018). (Tr. 382-97, 416, 422, 630-33; Adm. Ex. 16, 38).
On May 2, 2019, Terpstra filed a motion for Petitioner to show cause why he should not be held in contempt for failing to pay the sanction. Petitioner responded that he tried to contact Terpstra's office to arrange payment, but no one returned his call. He later represented to the Court that he had offered to make periodic payments. Terpstra disputed both claims and testified Petitioner only offered a compromise on the amount owed. (Tr. 397-405, 423-24, 636-38; Adm. Exs. 17, 39, 40).
Terpstra testified Petitioner's arguments in the Zausa matter were frustrating, delayed the case for over two years, and resulted in considerable expense for his client, who was upset with Terpstra for not being able to conclude the case in an effective and efficient manner. Terpstra believed Petitioner was obfuscatory, failed to provide information about his income, and mischaracterized conversations. (Tr. 407-12, 425).
Petitioner acknowledged he has not paid the sanction award and accepts responsibility for causing Terpstra and his client to deal with frivolous litigation. He claimed he made a monthly payment to Terpstra in March 2020, but the payment was returned to him with instructions to pay a different firm. (Tr. 635-39).
Petitioner testified in order to support himself and his wife during his suspension period, he borrowed money from his brother-in-law and has received public aid. In addition, on March 25, 2019 he entered into a loan agreement with his former client Haifa Sharifeh to receive an unspecified amount in monthly payments, with the total amount plus 5% interest due on March 25, 2020. He owes Haifa about $20,000, but testified she is agreeable to extending the loan. Petitioner has also defaulted on two credit cards. He testified if he is able to practice law again, he will pay off his debts, will not file bankruptcy, and his first payment will be to Terpstra. (Tr. 522-23, 640-42, 567-72, Adm. Ex. 22).
Request for a New Character and Fitness Hearing
Vanessa Williams, the deputy director of Character and Fitness for the Illinois Board of Admissions to the Bar, testified that on July 20, 2006, the Committee on Character and Fitness denied Petitioner's application for admission to the Illinois bar. The Committee's report cited his poor judgment relating to personal litigation matters, his exaggeration of facts in litigation matters, his failure to follow court procedures in appearing pro hoc vice, his lack of evidence of community service, and his lack of evidence that he appreciated the Committee's concerns and accepts responsibility for his conduct. Subsequent requests by Petitioner for a new hearing were denied. (Tr. 157-65; Adm. Ex. 29).
On July 31, 2019, during Petitioner's suspension from the practice of law in Illinois, he submitted another request for a new hearing before the Character and Fitness Committee. In that request he pointed to the 2017 Hearing Board decision that found no misconduct as to numerous allegations brought by the Administrator after a lengthy and comprehensive investigation of his practice. (Tr. 169, 616; Adm. Ex. 41).
On September 16, 2019 Williams forwarded to the chairman of the Character and Fitness Committee a December 2017 federal district court opinion approving sanctions against Petitioner for filing frivolous motions in a bankruptcy proceeding which caused unnecessary delay and increased the cost of litigation. When questioned about the decision, Petitioner testified he did not disclose it to the Committee because it was being appealed. Likewise, Petitioner's request did not reference the July 25, 2019 order by the Executive Committee of the federal district court sanctioning him for the unauthorized practice of law. (Tr. 169-72, 577; Adm. Exs. 4, 41).
On September 18, 2019, Williams notified Petitioner that his request for a new hearing had been denied on the ground that he had not set forth any substantial new matter that would prima facie overcome the reasons for the previous denial. (Tr. 172, 609, 617; Adm. Ex. 3).
B. Analysis and Conclusions
When considering conduct since discipline was imposed, the Supreme Court has looked favorably upon evidence that a petitioner was involved in community, religious, charitable or other volunteer activities, held a position of trust or responsibility, and has behaved in an exemplary manner. Martinez-Fraticelli, 221 Ill. 2d at 277.
In the present case, Petitioner presented minimal evidence as to how he has spent his time since January 2019, and did not cite to any volunteer or charitable activities or positions of responsibility he has held. The Administrator, on the other hand, presented substantial evidence of Petitioner's activities since discipline was imposed, including evidence of his continued interaction with clients and counsel on pending cases. Based on that evidence, the Administrator argued that Petitioner engaged in the unauthorized practice of law during his suspension.
The practice of law is broadly defined as an activity that requires legal knowledge and skill in order to apply legal principles and precedent and includes such activities as preparing or explaining legal instruments and giving advice on questions of law. Discipio, 163 Ill. 2d 515; In re Madsen, 08 RT 3002, M.R. 22475 (Sept. 20, 2011) (Hearing Bd. at 40). A broad range of activities have been held to involve the practice of law, such as preparing or explaining legal instruments, preparing pleadings or other papers incident to actions, giving legal advice, and giving an opinion on the right to maintain an action. See In re Nash, 03 CH 128, M.R. 20418 (Nov. 22, 2005) (Hearing Board at 26). In determining whether an activity constitutes the practice of law, we can rely on reasonable inferences drawn from circumstantial evidence as well as the principle that "neither the commissioners nor this court are required to be naive or impractical in appraising an attorney's conduct." Discipio, 163 Ill. 2d at 524.
In the Howard v. Four Partners case, Petitioner held himself out as attorney for the defendants and represented their interests by communicating with Medina, inquiring about
discovery, and generally moving the case forward. By doing so, he engaged in the practice of law in violation of an order of suspension imposed by the Executive Committee of the federal court. The fact he did not produce documents or take depositions, or that he did not understand the meaning of his suspension "until further order," is of no consequence. He was acting in a legal capacity on his clients' behalf, as his opposing counsel assumed he was authorized to do.
In addition, Petitioner's emails with Richard Sharif, Lewis Borsellino and others show his continuing involvement in client matters months after his suspension by the Supreme Court. We are not blind to the import of his invitations to "call me" when sending or forwarding a document. Even after new counsel stepped in, Petitioner continued to orchestrate from the sidelines, request verbal discussions relating to filings and court orders, and complete legal forms. Those acts demonstrate a pattern of providing legal services to his clients. Notably, we saw no evidence that Petitioner instructed anyone to stop communicating with him or to stop sending him documents relating to pending cases.
With respect to the testimony of Richard Sharif and Lewis Borsellino, we note the considerable work performed for them by Petitioner, sometimes without compensation (as described in the summary of their character testimony), and believe that circumstance created a bias on their part. Therefore, we give more weight to the language and direction in the emails than to the witnesses' recollections of their conversations with Petitioner or the timing of work performed by Petitioner.
Petitioner's unauthorized practice of law during his suspension period is a circumstance that deserves considerable weight. In In re Langowski, 90 CH 341, M.R. 6785 (Sept. 23, 1994) the Review Board, in an opinion approved by the Supreme Court, recommended against reinstatement based solely on the petitioner's unauthorized practice of law during his disbarment.
Petitioner's indebtedness is another factor to consider in determining if reinstatement is warranted. In re Powers, 122 Ill 2d 18, 22, 521 N.E.2d 921 (1988). Petitioner currently has debt from a loan, a court ordered sanction and credit cards, and has shown no current income from employment. Indebtedness is not necessarily fatal to reinstatement, however, as long as the Petitioner has shown financial responsibility and has made attempts to reduce the debt. See In re Groshong, 83 Ill 2d 27, 413 N.E.2d 1266 (1980). While Petitioner has indicated his willingness to repay the debts if his license status is reinstated, he has not offered any concrete plan for doing so, nor has he demonstrated his pursuit of alternative employment. In In re Gonzales, 2013PR00003, M.R.25825 (March 12, 2015) the Hearing Board noted that even a modest monthly payment would show a recognition of financial obligations and willingness to repay debts. (Hearing Board at 52). Petitioner's statements are also undercut by Jack Terpstra's testimony that Petitioner made misrepresentations to the Court regarding his efforts to pay sanctions to Terpstra's client.
We also consider the fact that the Character & Fitness Committee considered Petitioner's request for a new hearing in 2019 and determined that he provided no evidence to overcome the previous reasons for denying a new hearing. We also consider that, in submitting his petition to the Committee, Petitioner failed to disclose court orders that criticized his conduct and imposed sanctions. That information would have been responsive to a Board of Admissions rule that requires an applicant to show activities and conduct since the last action of the Committee. See Board of Admissions to the Bar Rule 13.3(2).
Taken as a whole, Petitioner's conduct since his discipline was imposed weighs heavily against him. His pattern of unauthorized practice of law (which demonstrates a lack of respect for, and failure to comply with, judicial authority), his financial dependence on others, and his
failure to disclose information to the Character and Fitness Committee all reflect adversely on his character and fitness to practice law. We also note that he involved a client in a potential scheme to defraud Paypal; he caused another lawyer's client to be upset with that lawyer; and he was careless in failing to remove his Illinois address from the signature portion of his emails.
VI. Petitioner's Candor in Presenting Petition
A. Evidence Considered
We consider the evidence in the preceding sections, along with the following evidence.
On September 24, 2019 during the discovery stage of this proceeding, the Administrator served Petitioner with a Second Notice to Produce requesting, among other things, emails from Petitioner's law office account "Salemlaw@comcast.net" dating back to January 29, 2019. Petitioner immediately advised the Administrator he had deleted all emails up to and including September 6, 2019 because his inbox had reached capacity. Petitioner testified his deletions occurred prior to his receipt of the Administrator's request, and were carried out according to his usual practice of first deleting the emails, and then deleting them a second time from the trash folder ("double-deleting"). On September 25, 2019 the Administrator emailed a letter to Petitioner instructing him to not delete any emails and to preserve all electronically stored information. (Tr. 517, 663-65, 674, 686; Adm. Ex. 11).
In October 2019, the Administrator retained Gary Hunt, an expert in the field of digital forensics, to assess the contents of Petitioner's email mailbox, with a focus on email recovery. On October 29, 2019 Hunt accessed Petitioner's Comcast email account and found 531 emails in his "Inbox" and "Sent" folders dating back to September 6, 2019. Hunt was able to recover 242 messages that had been double deleted during the thirty days prior to October 29, 2019, including some deleted on that date. The recovered emails included Petitioner's October 2019
emails to Richard Sharif, to which he attached a copy of an amended complaint. (Tr. 344-49, 373; Adm. Ex. 102, 147).
On October 30, 2019, the Administrator sent Petitioner a letter expressing concern that Petitioner had not complied with the preservation notice and requesting that he coordinate with Hunt so Hunt could make a forensic image of Petitioner's computer hard drive. Petitioner responded by email that his wife and children use his email account and, unbeknownst to him, had deleted some irrelevant emails. On November 12, 2019, Petitioner provided his desktop computer to Hunt for forensic imaging. Thereafter, Hunt was able to access 4,597 messages sent or received from Petitioner's law office account between January 29, 2019 and November 10, 2019. Petitioner denied personally deleting any emails from his account after he received the preservation notice. (Jt. Stip. 28; Tr. 353-38, 665-68, 780-83; Adm. Exs. 9, 10, 147).
On January 17, 2020, Hunt conducted a third preservation effort similar to his first effort to collect emails deleted during the preceding thirty days. He found three items in the trash folder and recovered 249 emails that had been double deleted between December 17, 2019 and January 17, 2020. Petitioner initially denied deleting any emails after Hunt made a copy of his hard drive in November 2019, but stated his wife may have deleted about twenty emails that were frivolous or spam. When confronted with testimony from his deposition that he continued to delete emails because he believed the Administrator had completed discovery of emails, he acknowledged he did delete emails after Hunt's forensic exam to avoid over-loading his inbox. He stated the emails were spam or frivolous, and not related to any legal document. (Tr. 360-61, 757-59, 784, 807-808; Adm. Ex. 147).
Based on the three preservation efforts and review of Petitioner's email account, Hunt concluded the following: 1) on or before September 6, 2019, Petitioner purged his email folders;
2) there were at least 4,215 messages double deleted from the account between January 29, 2019 and January 17, 2020; 3) because of Petitioner's deletion habits, messages of potential relevance to the Administrator's investigation were only obtainable through forensic means. Hunt spent approximately ten hours on the recovery efforts. (Tr. 345, 363-65; Adm. Ex. 147).
Petitioner testified if he is allowed to practice again, he will create a new email address and not let anyone have access to it. (Tr. 832-33).
B. Analysis and Conclusions
We find Petitioner was not candid and forthright in preserving evidence necessary to our determination of his character and fitness, nor was he straightforward in his responses when questioned about his actions. As to his purging of all emails prior to September 6, 2019, that conduct is highly suspicious. Even though he had not received a specific request for emails, he certainly knew his conduct since the date of his discipline, including communications from his law office account, would be relevant to the Administrator's inquiry and our determination.
Upon receiving the Administrator's Second Notice to Produce and preservation letter in late September, Petitioner was clearly apprised that he must not delete any more emails. Notwithstanding that notice and instruction, emails were deleted from his law firm account in October 2019. His claim that a family member deleted frivolous and irrelevant emails was not credible, as we do not believe a family member could or would make that judgment relating to his legal matters. Moreover, the emails he sent to Richard Sharif in October 2019 were hardly irrelevant to this matter. Even if the emails were inadvertently deleted by someone other than Petitioner, which we do not believe, we fault him for failing to properly monitor and protect his law firm email account.
Petitioner admitted (after initially denying until confronted with his prior testimony), that following the forensic examination of his hard drive in November 2019, he deleted more emails
from his account. His explanation that he believed the Administrator's request and recovery effort with respect to the emails was completed is contrary to the direction he received in September to not delete "any" emails from his account and, if he had questions, to contact counsel for the Administrator.
The emails discussed in Section V would not have been available for examination without the work of a forensic analyst. We conclude that Petitioner attempted to conceal those emails from the discovery process and when confronted, gave vague and inconsistent testimony as to how and why the emails were deleted. We saw similar evasive and shifting explanations in the prior section regarding his drafting and sending of documents.
Evidence Pertaining to Petitioner's Character and Knowledge of the Law
We consider Petitioner's previous testimony and that of Deanne Medina and Jack Terpstra, along with the following evidence.
Petitioner testified that during his college years, he helped create a coalition against apartheid in South Africa. As a civil rights attorney, he brought actions on behalf of impoverished people and minorities. (Tr. 528, 530).
Richard Sharif, a pharmacist, has known Petitioner since about 2009. Sharif described Petitioner as honest and a person of integrity who helps others, provides free counseling, does not overbill, and has a good reputation. He knows of no one who would disparage Petitioner's character. Sharif has referred clients, including members of his family, to Petitioner and continues to do so. Petitioner appeared pro hac vice in one case for Sharif's family, and did not bill them. Sharif acknowledged recently being held in contempt in his divorce case and serving jail time for failing to pay child support. In Sharif's bankruptcy case, the judge described him as evasive, uncooperative, and having little credibility. (Tr. 46-55, 60, 96-97).
Lewis Borsellino met Petitioner in about 2011 when he needed an attorney to represent his company in a bankruptcy proceeding and a state court matter. In the state court matter, Petitioner informed Borsellino he had to appear pro hac vice in conjunction with another attorney. Borsellino testified Petitioner did an excellent job, was honest about only being able to handle five pro hac vice cases per year, and did not pressure him for payment. Approximately three years ago, Petitioner began handling Borsellino's personal bankruptcy matter and did not charge for his services until an adversarial claim was filed. (Tr. 212-15, 225).
David Delgado, an attorney and retired judge, has known Petitioner since 2013 when they were both involved in the Sharif bankruptcy matter. They also served as co-counsel, on a pro bono basis, in another federal court matter. Based on his own experience, Delgado views Petitioner as competent, respectful and able to identify issues that other attorneys might miss. He has also heard positive comments from other attorneys. Delgado is not familiar with any monetary sanctions imposed by the federal court, but believes violation of a court order would weigh against Petitioner. (Tr. 107-17, 122-23, 126-34).
Jose Perez, a retired police officer, hired Petitioner to represent him in a complicated bankruptcy matter five years ago. In Perez's opinion, Petitioner is honest, dependable and straightforward. Neither the ARDC proceedings and opinions nor Petitioner's suspension in federal court affect his opinion of Petitioner. (Tr. 136-42).
Noah Nicholson, a church pastor, testified Petitioner represented the One-Way Apostolic Church in a dispute over leased storage space, and continued handling the matter on a pro bono basis after the church could no longer afford legal services. He believes Petitioner is competent, altruistic and a person of fine character. Nicholson was not aware Petitioner had been disciplined and has not spoken to anyone about Petitioner's reputation. (Tr. 176-85).
Dr. Robin Snead, a physician, testified Petitioner handled her divorce in 2002 or 2003, and also helped her with a housing matter in state and federal court. Snead believes Petitioner did an excellent and efficient job in both matters, and she has recommended him to other individuals. In the state court matters, Petitioner represented her on a pro hac vice basis and did not charge for his services. Snead described Petitioner as a person of excellent character, and one of the most honest individuals she knows. (Tr. 187-98).
Ali Mahboob, a businessman and community activist, referred friends to Petitioner who were very pleased with Petitioner's services. Mahboob believes Petitioner is diligent, knowledgeable, honest, straightforward, and he knows of no one who has disparaged Petitioner. As of February 2020, he had not referred any cases to Petitioner for eighteen to twenty months. He wanted to refer a case in late 2019, but Petitioner declined the case because of issues with his license. Petitioner did not disclose he was suspended in federal court. (Tr. 321-38).
Daniel Orzech, Petitioner's neighbor since 2013, testified Petitioner gave him money for car repairs and loaned him a car to use. Orzech believes Petitioner is a good person, well-liked, honest and very helpful, and if Orzech needed a lawyer he would talk to Petitioner. He has not discussed Petitioner's discipline or reputation as a lawyer with their neighbors. (Tr. 31-44).
Knowledge of the Law
Petitioner's testimony with respect to his lack of understanding of his suspension "until further order," and criticism of his arguments regarding diversity jurisdiction were previously summarized. More recently, Petitioner brought a suit on his own behalf in federal court claiming diversity jurisdiction on the basis of being domiciled in New York. The Seventh Circuit, in affirming the district court's dismissal of Petitioner's domicile argument, noted that Petitioner
"has a history of making flawed diversity-of-citizenship arguments." Salem v. Egan, No. 19-2477 (7)th Cir. 2020). (Tr. 646; Adm. Exs. 19, 21, 149).
Petitioner has not completed any continuing legal education ("CLE") classes since his suspension. He testified he last completed any CLE "a long time ago" when he was in New York, but also stated he has been compliant with New York CLE requirements and fills out the appropriate form every two years. He testified he keeps up to date on the law by studying case law and litigating. (Tr. 573, 826-27, 833-34).
Petitioner offered two appellate court opinions to demonstrate his knowledge of the law. In both cases he represented the prevailing party. Iqbal v. Patel, et al., No. 14-1959 (7th Cir. 2015) involved a question of subject matter jurisdiction and Schaefer v. Bezy, No. 05 CH 240 (7)th Cir. 2009) involved exhaustion of administrative remedies. (Tr. 268-72; Pet. Ex. 14).
The foregoing evidence and analysis are intended to aid in our determination of Petitioner's rehabilitation, present good character, and current knowledge of the law. In re Martinez-Fraticelli, 221 Ill 2d 255, 850 N.E.2d 155 (2006). As in disciplinary proceedings, our objective is not to punish, but to safeguard the public, maintain the integrity of the legal profession and protect the administration of justice from reproach. In re Berkley, 96 Ill 2d 404, 410, 451 N.E.2d 848 (1983).
Applying the Rule 767 factors to this matter, we conclude that Petitioner engaged in serious misconduct as a mature and experienced attorney, and did not demonstrate that he fully recognizes the severity of his wrongdoing or that he respects the authority of the Court. Most significant to our decision, however, is his improper conduct during his suspension period and
his lack of candor and forthrightness in his dealings with the Administrator. Those factors are fatal to Petitioner's reinstatement request.
Moreover, Petitioner did not sufficiently establish his general good character. He presented numerous character witnesses who expressed high opinions of his willingness to help other people, his diligence, and his honesty but, as we stated previously, some of the witnesses received assistance from Petitioner on a pro bono basis, which fact may contribute to a bias in his favor. Conversely, we heard unfavorable character testimony from Deanne Medina and Jack Terpstra, both of whom were credible, with respect to their dealings with Petitioner, their belief that he misrepresented his position, and the harm he caused to their client or judicial proceedings. Finally, we cannot overlook a comment Petitioner made during his opening statement that "[t]he evidence will show that dishonest people tend to be of a lower intelligence." (Tr. 17). That remark indicates an arrogance that reflects negatively on his character.
The evidence regarding Petitioner's current knowledge of the law was not persuasive. He admittedly has not completed any CLE classes since his suspension in January 2019, nor did he submit any certificates showing when he last completed any courses. His testimony regarding his fulfillment of CLE requirements for the New York bar was vague as to timing, although we assume he did submit the required forms to maintain his New York license. We also note Petitioner's failure to understand the continuing nature of his suspension, and the criticism he has received from various courts as to arguments on diversity jurisdiction. The fact he has mishandled the same issue more than once is an indication he has not bothered to re-educate himself on basic principles. Petitioner's citation to less recent cases in which he represented the prevailing party does not reassure us as to his current knowledge of the law.
Based upon the evidence, our findings, and the relevant case authority, we conclude Petitioner has not met his burden of proving by clear and convincing evidence that he is rehabilitated, of good character and is knowledgeable about the law. In our opinion, he has made a habit of circumventing the Illinois Supreme Court Rules, the Rules of Professional Conduct and the determination of the Character & Fitness Committee, all of which are in place to protect the public. Accordingly, we recommend that Petitioner's Petition for Reinstatement to his pre-discipline status as an attorney eligible to apply for pro hac vice privileges in Illinois be denied.
Heather A. McPherson
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 on October 26, 2020.
Kenneth G. Jablonski, Clerk of the
________________________1 We note in In re Smith, 04 CH 64, M.R. 21240 (Jan. 12, 2007), exceptions to Review Board Report allowed and sanction increased, the Review Board concurred with the Hearing Board's observation that "it is impossible to determine the precise basis for the sanctions" imposed in cases where the Court issues a summary order modifying discipline recommended by the Hearing or Review Board. (Review Bd. at 21, fn 2). Further, it is not unusual for the Court to allow both parties' Petitions for Leave to File Exceptions, and then modify the sanction. See e.g. In re Novoselsky, 2015PR00007, M.R. 30416 (Sept. 21, 2020).