Monday, March 1, 2021

Contrasting Sanction Proposals

Two Hearing Board reports recently filed in Illinois offer an interesting contrast on proposed sanctions for ethical violations.

One hearing board recommends a suspension of a lawyer for one year and until further order for comments about a judge

In seven motions to disqualify filed in the bankruptcy court and two motions filed the district court, Respondent made numerous statements accusing Judge Gorman of making false statements and committing criminal conduct. Representative examples include the following:

In her last order, the Judge goes to great lengths to manufacture a story from false statements she created. The Judge knew the statements were false when she published them but concocted the story in retaliation to Plaintiff's Counsel's reporting of the Judge's prior misconduct in this case to both Illinois and Federal authorities. There is no limit to the Judge's willingness to misuse the powers of her office including the criminal use of false statements as she continues to threaten Plaintiff, Plaintiff's case, and Plaintiff's Counsel. (Count I).

The unhinged, and thus dangerous, Judge recklessly brings infamy to her office and becomes a scourge to her profession with her Order's false story, and she will likely find herself civilly and/or criminally liable. The dawning [sic] of a robe is not a license to perform crimes upon the citizenry. The dishonorable Judge's latest misconduct must also be reported and the Judge must recuse, if not resign and disgorge her earnings taken from the taxpayers during her abuse of office. (Count I).

In this cause, the Judge followed her abuse of Plaintiff with intentional false statements (what the non-lawyering community refers to simply as ?lies') known by the Judge to be false at the time of the utterance to this Court., false statements designed to lay a foundation for future abuses the Judge actually forecast in her most recent Order. (Count IV).

As a central topic for this review will be the illegal abuses and misconduct from the Judge below as she designed executed harm upon both Counsel and his Plaintiff client, the importance of having an impartial judiciary to which to bring cases will be a theme of the appeal. Counsel believes there can be no higher concern for a court. Thus, while Counsel will make prudent efforts to comply with rule [sic] and general expectations of practice, he demands that the importance of this great issue be acknowledged with the Court's granting of every leniency necessary such that the corruption may be reviewed and properly addressed. Anything less will be an attempt to sweep a colleague's crimes under the rug. (Count VIII).

Misappropriation drew a lesser proposed sanction from another hearing board

Intentional conversion of client funds is one of the most serious ethical transgressions a lawyer can commit. See In re Rotman, 136 Ill. 2d 401, 423, 556 N.E.2d 243 (1990). Making false statements to the court is similarly serious, as such misconduct undermines the efficacy of the legal system and the integrity of the profession. See In re Barry, 09 CH 05, M.R. 24439 (Mar. 21, 2011).

Respondent's misconduct is aggravated by several factors. He engaged in a pattern of misappropriating client and third-party funds. See In re Lewis, 138 Ill 2d 310, 342-43, 562 N.E.2d 198 (1990). He caused harm to Lisa Romano, who was twice held in indirect civil contempt and left without representation as a result of the misconduct. See In re Saladino, 71 Ill. 2d 263, 276, 375 N.E.2d 102 (1978).

There is also substantial mitigating evidence. Respondent reported himself to the ARDC, cooperated in these proceedings and admitted most of the charged misconduct. We find him to be sincerely remorseful and to understand why his conduct was wrongful. We find credible the testimony of Respondent's witnesses as to his good character. It is also mitigating that Respondent has completed courses to better understand his bookkeeping obligations. Based on the evidence Respondent presented, we are convinced that he takes full responsibility for the shortcomings that led to his misconduct and is willing to do the work necessary to prevent future misconduct.

The Administrator asks us to disbar Respondent or recommend a lengthy suspension until further order of the court (UFO). We have considered the Administrator's cited cases but do not find them comparable to the case before us. Disbarment or a lengthy suspension was warranted in those cases because the lawyers did not present any mitigating evidence or show any remorse (In re Huebner, 2011PR00129, M.R. 26649 (May 16, 2014)), did not participate in the disciplinary proceedings (In re Ivory, 00 CH 67, M.R. 17617 (Sept. 21, 2001)), or engaged in more extensive misconduct than is present here (In re Brown, 03 SH 2, M.R. 19364, (May 17, 2004); In re Cummins, 96 SH 919, M.R. 13249, (March 21, 1997)). We note that disbarment represents the utter destruction of an attorney's professional life, character and livelihood, and should be used in moderation. In re Yamaguchi, 118 Ill. 2d 417, 428-29, 515 N.E.2d 1235 (1987). Disbarment has not always been imposed in cases involving serious misconduct, and we do not believe it is necessary here to satisfy the purposes of the disciplinary process.

Next to disbarment, a suspension UFO is the most serious disciplinary sanction that can be imposed. In re Timpone, 208 Ill. 2d 371, 386, 804 N.E.2d 560 (2004). It is typically reserved for cases where there are issues of mental health or substance abuse, a disregard of ARDC proceedings, or other factors that call into question the attorney's ongoing fitness to practice law consistent with the Rules of Professional Conduct. In re Forrest, 2011PR00011, M.R. 26358 (Jan. 17, 2014). These circumstances are not present in this case, so we decline to recommend a suspension UFO.

The proposed sanction is a one year suspension with six months stayed and a year of probation.  (Mike Frisch)

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