Thursday, August 16, 2018

Taking The Fifth In Bar Discipline Hearing

The Illinois Review Board majority proposes a one-year suspension

The Administrator charged Respondent with engaging in dishonesty in his own divorce proceeding, in which he represented himself, by knowingly making false statements to the court and opposing counsel that he had requested transcripts of his tax returns for certain years when he had not filed tax returns for those years and knew no transcripts of his tax returns existed; with knowingly failing to comply with court orders by not providing the tax-return transcripts; with engaging in conduct prejudicial to the administration of justice; and with engaging in the unauthorized practice of law when he performed legal services for two villages after he was removed from the Master Roll for failure to register and pay the annual registration fee.

During pre-hearing proceedings, Respondent asserted his Fifth-Amendment privilege against self-incrimination and refused to sign an IRS form that would have authorized the IRS to release his tax returns to the ARDC. On the Administrator's motion, the Hearing Board found that Respondent had failed to comply with a discovery order and, as a sanction, issued an order deeming admitted the allegations and charges regarding his conduct during his divorce proceeding.

Later, during a deposition of him regarding his unauthorized practice of law, Respondent again asserted his Fifth-Amendment privilege as to every question posed to him, including questions about his name and background. On the Administrator's motion, the Hearing Board barred Respondent from testifying at hearing about those charges and any mitigating factors.

After a hearing at which Respondent represented himself, the Hearing Board found that the Administrator had proved the charges of misconduct and recommended that Respondent be suspended for one year.

Respondent filed exceptions, challenging the Administrator's handling of his Fifth Amendment claim, the Hearing Panel Chair's pre-hearing orders imposing discover sanctions and decision to admit the evidence deposition of the ARDC registrar, and the Hearing Board's findings regarding aggravating factors.

The Review Board affirmed the Hearing Board's findings of fact, rulings of law, and findings of misconduct. It found that, under In re Zisook, the Administrator was not required to seek a judicial determination of the validity of Respondent's Fifth Amendment claim. It also found no error in the Hearing Board's pre-hearing rulings or in its findings regarding aggravating factors.

A majority of the review panel recommended that Respondent be suspended for one year based upon the significant aggravating factors present. A dissenting member recommended a six-month suspension, finding that relevant authority did not support a harsher sanction.

(Mike Frisch)

Bar Discipline & Process | Permalink


Was his decision to invoke the 5th a factor in the imposition of a one year suspension? What happens when the Board's ability to prove its primary facile case depends upon the confession or admission of facts uniquely within the knowledge of the mute respondent when there has been no failure to make discovery?

Posted by: Caldwell Hancock | Aug 18, 2018 4:35:56 AM

Excellent questions not answered in the opinion. I will try to post further on these questions

Posted by: Mike Frisch | Aug 20, 2018 3:10:35 PM

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