Wednesday, April 6, 2022

No Suspension Proposed For Sex With Client, False Representation

An Illinois Hearing Board proposes a censure in a case involving sex. lies and videotapes

In 2017 Mariam Gembala was charged with the misdemeanor offense of criminal damage to property. In April 2018 Respondent met with Gembala, agreed to represent her, and accepted a $560 retainer fee. On April 26, 2018, he filed his appearance in People v. Mariam Gembala, No. 17 CM 2718. At the time Respondent agreed to represent Gembala, he did not have an ongoing sexual relationship with her. 

In May 2018, Respondent and Gembala commenced a consensual sexual relationship. Respondent was aware at the time, and has admitted throughout these proceedings, that his conduct violated the Illinois Rules of Professional Conduct. He denied exerting any pressure on Gembala or requiring any quid pro quo for his work on her case. As with all of his cases, he accorded Gembala’s matter gravity and importance. 

Sex plus lies

In January 2019, at a time when Mariam Gembala was unemployed and seeking to rent a condominium in Lombard, she asked Respondent to prepare an employment verification letter for a prospective landlord stating she was an employee of his firm. Respondent agreed to do so and on January 30, 2019, he emailed a letter to Gembala’s prospective landlord, Jilani Khan, advising Khan that Respondent was a managing partner at the DiBenedetto and Kendall law firm; Gembala was an employee of the firm; her salary was $40,000 per year; and she was paid bi-weekly. At the time Respondent prepared the letter, he knew his statements regarding Gembala’s employment and compensation were false. Further, he knew the Illinois Rules of Professional Conduct prohibited an attorney from engaging in dishonesty, fraud and misrepresentation. Respondent denied that his statement regarding his own employment at the firm was false. 

Plus videotapes

Respondent testified he wanted to help Gembala because she had been renting a room from a former acquaintance who had set up cameras in his house and had shared videos of Gembala in various states of undress. To Respondent’s knowledge, no police report was made of that situation. Although his purpose was to help Gembala leave an untenable living situation, Respondent knows his actions were wrong.

Respondent testified he assumed the information he provided to the prospective landlord would be used to determine whether to lease an apartment to Gembala. He did not believe the landlord would suffer any harm, however, because Gembala had been employed consistently in the past; she was seeking reinstatement of her lapsed real estate broker’s license; and if she were not able to pay the rent, Respondent planned to assist her. Respondent noted that from the time Gembala leased the apartment through January 2021, all rent payments were made, and only one payment was late. Respondent’s conduct was reported to the ARDC by his former law partner.

The board considered highly favorable character testimony, deep remorse and noted the impact of suspension to Respondent's extensive clientele

We also give considerable weight to the testimony of the six witnesses who spoke with passion and conviction regarding Respondent’s honesty, dedication to clients, high moral character and value to the profession. Their testimony made a strong impression on us.

In aggravation, we consider the potential harm that might have resulted to Respondent’s client or to her landlord as a result of his misconduct. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be “closely linked to the harm caused or the unreasonable risk created by the [attorney’s] lack of care”). We note, however, that no evidence of actual harm was presented. Gembala’s case was not compromised, nor was there proof of damage to her landlord or even that the landlord relied on Respondent’s letter in renting the apartment.

We turn now to the appropriate discipline for the misconduct that occurred. The Administrator urged us to recommend a 90-day suspension, while Respondent argued that a reprimand would be appropriate...

Taking into account the misconduct in this case, the mitigation and aggravation, and the relevant case law, we conclude that a censure will adequately serve the purposes of the disciplinary process. In particular, we were persuaded by the consistency of the character testimony praising Respondent for his untiring dedication to his clients and mentoring of young attorneys -- attributes which demonstrate his value to, and positive influence, on the legal profession. Further, Respondent’s deep remorse as well as the embarrassment he brought to himself and his family is assurance to us that he will never repeat his misconduct. Finally, his current caseload of criminal matters and looming trials indicate to us that the public would be damaged more by his removal from practice than his continued practice.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/04/an-illinois-hearing-board-in-2017-mariam-gembala-was-charged-with-the-misdemeanor-offense-of-criminal-damage-to-property-in.html

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Comments

It seems wrong to me that you would reproduce the repeated use of the woman's name but not Jeffrey Gerald Kendall's name. Granted, anyone at your site can click the link and discover his name, but who did something wrong here?

Posted by: Kevin | Apr 12, 2022 12:45:36 PM

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