Monday, April 7, 2008

Second Offense Less Serious

An Illinois hearing board has recommended a public censure of an attorney who had previously been suspended for six months for ethics violations. The board explains:

"Respondent’s prior misconduct involved more egregious facts than the present case. The most significant findings of misconduct in Respondent’s prior case were asserting a position in an action he knew would serve to harass or maliciously injure another, making statements of material fact or law to a tribunal which he knew were false, defending a proceeding without a non-frivolous basis for doing so, and engaging in dishonest conduct, conduct prejudicial to the administration of justice and conduct that tends to bring the legal profession into disrepute. Although he represented a client without the client’s authority, he was not charged with or found to have done that. Therefore, we find that the prior misconduct and the current misconduct are substantially different.

Further, Respondent was found to have engaged in the prior misconduct by the Hearing Board in July 2003, and the Review Board in December 2004. The current misconduct occurred between late April 2004 and early June 2004. Importantly, in the prior case, the Hearing Board found that the Administrator failed to prove the misconduct involving Respondent’s representation of Jakubosky, and found misconduct relating to different counts. The Hearing Board recommended a sixty day suspension, stayed in its entirety. The Review Board reversed the Hearing Board’s findings. However, by the time the Review Board issued its decision, the conduct at issue in the current case was completed. Accordingly, Respondent could not have used the Review Board’s decision to modify his conduct in this case. Based on these facts, we give some, but not a significant amount of, weight to Respondent’s prior discipline as an aggravating factor.

Nevertheless, we are astounded by Respondent’s attempt to minimize his prior misconduct. Rather than acknowledging his prior misconduct, he spent a significant amount of time seemingly arguing that the findings of misconduct were incorrect. He believes it is significant that the Hearing Board found no misconduct, and that the Review Board found misconduct in a 2-1 decision. He even goes so far as to argue that the Review Board’s decision violated the applicable standard of review. Respondent fails to give any weight to the most important fact, namely that the Illinois Supreme Court affirmed the Review Board’s decision and imposed a six month suspension. The sanction imposed by the Court is significant and should not be taken lightly. Respondent’s failure to give the Court’s ultimate decision the weight it deserves is nothing short of appalling, and demonstrates Respondent’s complete failure to understand the nature of his prior misconduct."

The board did treat the follwing as mitigation:

"...Respondent’s misconduct is mitigated by his pro bono and charitable activities. Specifically, Respondent is a member of the board of directors of the Single Room Housing Association and the Cermak Single Room Housing Assistance Corporation which provides housing and counseling for the homeless. He is also on the board of directors for the Center for Renter’s Rights. Respondent also makes charitable contributions to the Loyola Law School, Loyola University, the University of South Florida, and a few renter’s rights organizations. For the last ten years, Respondent has purchased Thanksgiving Day dinners for members of a mobile home park where his father used to live. These activities demonstrate a significant commitment to the community."

It is somewhat unusual, but not unheard of, for an attorney who has been suspended from practice to be censured for subsequent, but less serious, misconduct. Let's see if this recommendation is opposed by the Grievance Administrator. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/04/an-illinois-hea.html

Bar Discipline & Process | Permalink

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