Tuesday, January 5, 2010

A Sanction Disagreement

A majority of the Illinois Review Board has recommended a two year suspension without automatic reinstatement in a case where the attorney had been charged in four matters. Two involved alcohol-related traffic incidents. One involved charges relating his relationship with a female client, which were not established by clear and convincing evidence. Then there was this:

Count III involves a different type of misconduct that came to light in one of the Respondent’s divorce proceedings. Between 1991 and 1997, using an electronic device he taped the audio and video of his sexual activities with five different women in the bedroom of his home. These recordings were made without the consent or knowledge of the five women involved. The Respondent refused to identify the women, but did state that three were former clients and one was a secretary in his office.

The Respondent does not dispute that each of these recordings constituted a Class 4 felony (720 ILCS 5/14-4) and that the Administrator proved by clear and convincing evidence that the Respondent "(a) committed a criminal act, eavesdropping, that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct; (b) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4); and (c) engaged in conduct which tends to bring the courts of the legal profession into disrepute, in violation of Supreme Court Rule 770." (citation to record omitted)

The videotapes apparently surfaced in a divorce proceeding started by a former wife. It became an item of some notoriety in his community. The charges brought by the Administrator also became a news issue prompting the Respondent to publish a letter in the Lincoln Courier on February 16, 2007 in which he acknowledged his misconduct and apologized to his family and friends. The letter concluded with a statement that

"I have gone through alcohol evaluations and followed the treatment recommendations and have had counseling to address the past mistakes I have made. I have fully cooperated with the ARDC and will continue to do so. I will accept their judgment and it is my expectation that I will be able to maintain my practice without interruption."

A dissent would impose a probationary sanction as proposed by the Hearing Board and suggests that an order entered in the case directing the attorney to identify the taped women (which he refused to comply with) was improper:

While Respondent’s [taping] actions were obviously wrong, it is clear that Respondent never sought to substantively violate the interests sought to be protected by the criminal statute — that is, he never released the tapes to the public or to other individuals, and he never identified the women in the tapes, as far as we know. The tapes came to light only because of the accident of Respondent’s wife finding and using them as a bargaining chip in a divorce. Moreover, Respondent’s refusal to name the women in the videotapes, as the Hearing Board ordered, is consistent with his prior conduct in not releasing the tapes to others or in identifying the women.

Concerning the Administrator’s request for the names of the women in the tapes and the Hearing Board’s order mandating disclosure, I respectfully disagree that such an order should have been entered. As noted, the purpose of the criminal statute is to protect against invasion of privacy. In my judgment, Respondent’s refusal to abide by the order helped further the interests sought to be protected.

Had Respondent complied with the Administrator’s request and an ARDC investigator thereafter knocked on the doors of these women who had moved on with their lives, the potential for psychological and emotional damage to the women and their families was considerable, while the benefit to the Administrator was negligible. Simply because a lawyer is under investigation by the ARDC with respect to certain violations does not mean that the Administrator, in all cases, must pursue every avenue of other possible unreported professional lapses, without evaluating the damage that might be inflicted on members of the public by engaging in that pursuit. In any event, the Hearing Board gave Respondent the benefit of the doubt on this issue. I find no rationale for the Review Board to take a less forgiving stance than the body that entered the order requiring disclosure.

In my view, Respondent meets all of the criteria for probation,...the record shows that Respondent, as he has in the past, can practice law without harming the public or causing the courts or the profession to fall into disrepute. Moreover, Dr. Henry so testified, assuming Respondent is receiving appropriate treatment, and the Hearing Board accepted his opinion.

The rejected charge had involved a single conversation with a much-younger client asking her for a date. She was "grossed out" and the subject was dropped. The attorney had denied the conversation. The Hearing Board concluded:

...the Respondent, at most, made inappropriate comments to a client on one occasion. The client declined the Respondent's dinner invitation, and, thereafter, the Respondent made no other inappropriate comments or advances toward the client. In fact, the client continued to have the Respondent represent her. We do not condone an attorney making comments as those alleged...Rather, we view such comments as demonstrating extremely poor judgment; however, exercising poor judgment does not, in itself, constitute ethical misconduct.

(Mike Frisch)


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