Filed January 29, 2003
In re Richard Patrick Ryan
Commission No. 01 CH 16
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) commiting a criminal act which reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer; 2) engaging in conduct prejudicial to the administration of justice ; and 3) engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.
RULES DISCUSSED: 8.1(a)(1), 8.4(a)(3), 8.4(a)(4), and 8.4(a)(5) of the Illinois Rules of Professional Conduct; and Supreme Court Rule 771.
SANCTION: Six months suspension.
DATE OF OPINION: January 29, 2003
HEARING PANEL: Robert Birndorf, Thomas J. Potter, and Mark Fitzgerald
RESPONDENT'S COUNSEL: Samuel Manella
ADMINISTRATOR'S COUNSEL: Scott Renfroe
Filed January 29, 2003
BEFORE THE HEARING BOARD
REPORT AND RECOMMENDATION OF HEARING BOARD
The hearing in this matter was held on October 15, 2002, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC"), before a panel consisting of Robert Birndorf, chair; Thomas J. Potter, lawyer member; and Mark Fitzgerald, public member. Scott Renfroe represented the Administrator, and the Respondent appeared and was represented by Samuel Manella.
COMPLAINT AND ANSWER
The Administrator filed a two-count complaint against the Respondent on February 27, 2001. Count I is based upon the allegation that the Respondent, on May 24, 1999, knowingly possessed cocaine and cannabis in violation of Illinois criminal statutes. The cocaine was found inside a package of Marlboro cigarettes, and the cannabis inside a napkin or facial tissue. These substances were discovered when the Respondent attempted to go through a security checkpoint at the Richard J. Daley center, placed the cigarettes and napkin into a property tray, and the items were inspected by a Cook County deputy Sheriff.
The Administrator alleged that, based upon the foregoing facts, the Respondent had engaged in the following misconduct:
Count II is based upon allegation that the Respondent made false statements to the Administrator under oath. The Administrator alleged in this count that the Respondent had appeared at the Commission's offices on October 23, 2000 to provide a sworn statement regarding his May 24, 1999 arrest for possession of cannabis and cocaine. The Administrator further alleged that, during this statement, the Respondent denied that the substances were his and, instead, claimed that, on the morning in question, he had met with a prospective client by the name of Alan or Ronald Green before going to court at the Daley Center, and had mistakenly grabbed Green's raincoat, containing the controlled substances, when he left for court.
The Administrator contended that these statements by the Respondent were false and that, by virtue of these false statements, the Respondent had engaged in the following misconduct:
The Respondent filed an answer to the Administrator's complaint on April 23, 2001, and an amended answer on August 24, 2001. He denied that he owned the items in which the controlled substances were found, denied that he had violated any criminal laws, and denied that his sworn statement of October 23, 2000 was false.
At the hearing, Administrator's Exhibits 1 through 13 were admitted into evidence without objection. (Tr. 17-18, 156-57) The Administrator called as witnesses Cook County deputy sheriffs Mary Kate Kennealy and Charley Mentz; Christ Demos; Daniel Horan; Dr. Stafford Henry; and Timothy Shelven. The Administrator also called the Respondent as an adverse witness.
Deputy Kennealy, who was assigned to first-floor security at the Daley Center during May of 1999, testified that she was on duty at one of the security stations on the morning of May 24, 1999. At about 9:20 a.m., the Respondent approached the security checkpoint and emptied his pockets into a property tray. Kennealy recalled that the Respondent placed a pack of cigarettes and a napkin and, possibly, a set of keys in the tray. (Tr. 19-23)
Kennealy reached into the tray and picked up the pack of cigarettes the Respondent had placed inside, in order to conduct a search for weapons. At that point, she stated, the Respondent tried to grab the cigarette pack out of her hand and remarked, "Oh, shit, I have to get out of here." (Tr. 24-26) The Respondent turned and began to walk back through the metal detector, and Kennealy and another deputy brought him back. (Tr. 24) Kennealy felt that the Respondent was attempting to flee at that time because he tried to walk out "fast." (Tr. 31)
Kennealy then looked inside the cigarette pack, and found a white powdery substance which was later determined to be cocaine. (Tr. 25-26, Admin. Ex. 6) She placed the Respondent in custody and took him downstairs to the lockup area. In a search of the remainder of the Respondent's property at the lockup, Kennealy found cannabis in the napkin the Respondent had placed in the tray. (Tr. 25-26, Admin. Ex. 5)
The Respondent was transported from the lockup area to Maywood to be booked. (Tr. 24-27) Kennealy wrote up two separate criminal charges against the Respondent, a felony charge of unlawful possession of cocaine, and a misdemeanor charge of unlawful possession of cannabis. (Tr. 27, Admin. Exs. 1 and 2)
Kennealy stated that the Respondent never denied to her that the cigarettes and the substance found inside the cigarette pack were his. (Tr. 26-27) However, he also never admitted to her that the drugs were his. (Tr. 31) Kennealy agreed that, although she had testified that the Respondent grabbed the cigarette pack from her hand as she began to open it, in her report detailing the incident, she stated that he grabbed for the pack before she began to look inside. (Tr. 30-31) While acknowledging that most of the morning court cases at the Daley Center started at 9:30 a.m., Kennealy denied that there was a lot of traffic at the security station at which she was posted when the Respondent arrived at 9:20 a.m. (Tr. 31-32)
Deputy Sheriff Charley Mentz was assigned to the same security station as Deputy Kennealy on the morning of May 24, 1999. He testified that the Respondent walked through the metal detector after arriving, but grabbed for the cigarette pack in Deputy Kennealy's hand when she went to look inside. The Respondent then turned around and went back through the metal detector in an attempt, Deputy Mentz opined, to flee the area. Mentz stopped the Respondent from leaving, and brought him back to the security station. (Tr. 35-40)
Mentz acknowledged that his report regarding the incident contained no mention of an attempt on the Respondent's part to flee. (Tr. 41-42) He also agreed that the Respondent never made any statements in his presence regarding the ownership of the items Deputy Kennealy found that morning. (Tr. 38-39)
The lab reports admitted into evidence at the hearing disclose that the substances found by Deputy Kennealy were analyzed and found to consist of .4 grams of cocaine and .7 grams of cannabis. (Admin. Exs. 3, 5)
The Respondent, called as an adverse witness, acknowledged that he had been arrested on May 24, 1999 at the Daley Center. (Tr. 43) On the morning of May 24, the Respondent had appeared at traffic court on LaSalle Street at 9:00 a.m., on a case he was handling for a client by the name of Willie Jackson. (Tr. 43-45) He obtained a continuance on that case and believed he was at traffic court for perhaps two minutes. (Tr. 45) The Respondent then went to Monday's, a restaurant/bar on Lake Street, across the river from traffic court, where he was scheduled to meet a prospective client. He did not recall the exact time he arrived at the restaurant, but acknowledged that at his September 27, 2001 deposition he testified he arrived there at 9:15 a.m. (Tr. 45-46) The Respondent could not recall the exact name of the individual he was scheduled to meet, but believed his last name was Green and his first name either Alan or Ronald. (Tr. 57) A copy of the page of Respondent's daily diary for the date of May 24, 1999, which the Respondent did not provide to the Administrator until August of 2001, did not reflect any meeting with a Mr. Green on May 24. (R. 56)
The Respondent stated that Green had been referred to him by a former client. The Respondent believed this former client was a doorman at a downtown building. (Tr. 49-52) The Respondent never spoke directly with the client who had referred Green to him, but stated that he knew from Green where the referral had originated. (Tr. 52) The Respondent acknowledged that at the close of his sworn statement on October 23, 2000 he had informed counsel for the ARDC that he could provide the name of the referring client, but that he had never done so. He stated that he cannot provide the name of that client. (Tr. 53-55)
The Respondent believed that at the time of his meeting with Green, Green had already been charged with a drug offense which was scheduled at 26th Street and California. (Tr. 57) He recalled Green telling him that he, Green, had frequented a restaurant at 111 W. Washington and had been part of a drug "bust" at that restaurant. (Tr. 58) At the time of their meeting, the Respondent stated, both he and Green had raincoats with them. Also, at that time, both Green and the Respondent were smoking Marlboro Reds. (Tr. 59-62) The Respondent denied that both he and Green had been wearing Yves St. Laurent raincoats, but acknowledged that during his sworn statement he had testified that both and he and his client had such raincoats. (Tr. 59-60)
The Respondent made no notes of his meeting with Green. (Tr. 64) He could not recall how long the meeting lasted, although at his sworn statement said it lasted between fifteen and forty minutes. (Tr. 64-65) The Respondent was "racing" to court at the Daley Center when he left his meeting with Green, and mistakenly grabbed Green's raincoat. (Tr. 64-67) He did not realize he did not have his own coat with him and could not find his attorney card in the coat when he arrived at the Daley Center, and thus had to pass through the security station. (Tr. 67-68) Although the Respondent testified at the disciplinary hearing that he obtained a replacement card for his lost attorney card at some point, he testified at his deposition that he did not obtain such a card. (Tr. 70-72)
After being charged with possession of a controlled substance, the Respondent attended counseling and education sessions at Magnolia House. The charges brought against him were dismissed upon his completion of these sessions. (Tr. 73-74)
The Respondent no longer has in his possession the raincoat he took from Green. (Tr. 73) He had offered to turn the coat over to the Administrator, but the Administrator's office told the Respondent they did not want the coat. (Tr. 73-74) The Respondent denied that the cannabis and cocaine found on the morning of May 24 belonged to him, and denied that the raincoat belonged to him. (Tr. 78) He acknowledged that he had used cannabis and cocaine in college, but denied any use subsequent to that time. During his sworn statement, the Respondent denied that he had ever used cocaine. (Tr. 77-78)
Christ Demos, a Chicago restaurateur and developer, testified that he had been a stockholder at Kevin's, a restaurant located at 111 W. Washington Street in Chicago. This restaurant was closed about four years prior to the disciplinary hearing. The manager of the restaurant had told Demos that five or six undercover policemen had raided the restaurant six or seven years ago and that a number of people were arrested. Demos did not know the names of any of the individuals arrested. (Tr. 84-86)
Daniel Horan testified that he is the owner of, and also an alcohol and drug counselor at, Magnolia House, a counseling center in Chicago. Magnolia House provides alcohol and drug education and counseling on an outpatient basis. (Tr. 87-88) Almost all of the clients treated at Magnolia House are referred through the court system or an attorney. (Tr. 89)
The Respondent was referred to Magnolia House by David Carrabotta, one of the attorneys representing him on his drug charges. (Tr. 90) Carrabotta's concern with respect to the Respondent at the time of the referral was that the Respondent drank too much. (Tr. 94) Horan stated that he thereafter met with the Respondent for four sessions, for 2-1/2 hours per session, to provide education and counseling to him. (Tr. 90-92) Horan recalled that, during one of their sessions, the Respondent told Horan that he was a social user of cocaine and cannabis as well as alcohol. (Tr. 92) Horan relied on his notes with respect to this statement by the Respondent, but acknowledged that he had filled in some of his notes in July of 2001, when the ARDC subpoenaed his records, even though the Respondent had completed his program at Magnolia House in July of 2000. (Tr. 97-98) He acknowledged that the statement contained in his notes in which the Respondent had supposedly admitted that he was a social user of cocaine could be incorrect, and stated that he could not unequivocally dispute any claim by the Respondent that he had denied ever making such a statement. (Tr. 98-99)
Horan could not recall any components of the Respondent's sessions other than that they were one-on-one counseling sessions with him. He stated that, to his recollection, the Respondent did not engage in any group sessions. (Tr. 92) On a number of occasions during his deposition, however, Horan had referred to the Respondent's attendance at group sessions. (Tr. 100-09) At the end of their sessions, Horan provided the Respondent with a letter certifying that he had completed ten hours of alcohol and drug education. (Tr. 93)
Dr. Stafford Henry, a psychiatrist board-certified in forensic and addiction psychiatry, evaluated the Respondent on November 19, 2001, at the request of the ARDC. The purpose of this evaluation was to perform a psychiatric assessment of the Respondent and, if indicated, to make recommendations for treatment. (Tr. 122-23)
The Respondent related to Dr. Henry that he began using alcohol at the age of nineteen, but that his initial use of that substance was social and non-problematical. Following the death of his mother in the mid-1980s, the Respondent's alcohol use increased. He was drinking four to eight drinks four times per week, and frequently drank to the point of intoxication. Between 1990 and 1992, the Respondent reduced his consumption of alcohol. In 1992, after leaving one of his employment positions, the Respondent resumed the pattern of drinking he had followed during the mid-1980s. (Tr. 123-24) The Respondent had been arrested for driving under the influence on three occasions, in 1977, 1984, and 1994. (Tr. 124-25) He reported to Henry that he last consumed alcohol in 1999. (Tr. 124-25)
When questioned regarding his use of cannabis and cocaine, the Respondent related to Henry that his use of both of these substances was somewhat circumscribed. He told Henry that he had used cocaine on about five occasions in the 1970s, and used cannabis around the same time period. (Tr. 125-26)
Dr. Henry did not find any evidence that the Respondent was suffering from any major psychiatric disorders. Based upon his examination of the Respondent and his review of collateral data, Henry concluded that the Respondent was suffering from three psychiatric diagnoses: 1) alcohol dependence; 2) other substance abuse, of an unspecified nature and extent; and 3) a personality disorder, not otherwise specified, with narcissistic features. (Tr. 126-32)
The Respondent had discussed with Henry the circumstances leading to his arrest at the Daley Center. During these discussions, the Respondent reiterated his claim that the raincoat in which the controlled substances were found did not belong to him, and that the raincoat was taken accidentally by the Respondent while he was rushing out of a meeting with a potential client. (Tr. 134-35) Henry stated that his reaction as a board-certified psychiatrist to the Respondent's story regarding this incident was that the story sounded manufactured, and that it was not an accurate representation of what happened. (Tr. 135-38)
Henry did not have an opinion to a reasonable degree of medical and psychiatric certainty regarding the Respondent's use of cannabis or cocaine subsequent to college because, he stated, he did not believe the Respondent had been forthright in disclosing his use of those substances. It was his recommendation, however, that the Respondent be urine-monitored for a period of two years. (Tr. 138-40) Henry acknowledged that the Respondent had provided him with a lab analysis which was negative for the presence of cocaine or cannabis. (Tr. 140) He also agreed that collateral sources he had interviewed, which included the Respondent's wife and his criminal defense attorney, had informed him that the Respondent was not a cocaine or cannabis user. (Tr. 144-45)
Timothy Shelven, an investigator with the ARDC, testified that he conducted a database search of the criminal records of the Cook County Circuit Court for the year 1999, in an attempt to locate a case of a defendant named Alan or Ronald Green. He searched the database using two variations in the spelling of the last name -- G-r-e-e-n and G-r-e-e-n-e -- and found no records for either a Ronald or an Alan Green for any criminal case which was pending as of May 24, 1999. (Tr. 149-52) Shelven agreed that he found over 200 cases listed for 1999 under the name of Green or Greene, but stated that he found none with the first name of Alan or Ronald. (Tr. 155-56)
Shelven also searched the records of the Cook County traffic division for a defendant by the name of Willie Jackson. He found an appearance filed by the Respondent on July 28, 1999 in a DUI case brought against a Willie Jackson, Jr. He also determined from reviewing the file that the first court date on the case was June 24, 1999, and that Jackson's case was not pending as of May 24, 1999. (Tr. 152-53, Admin. Ex. 13)1
Jerome Julien, Jacqueline Gollay, and David Carrabotta testified on behalf of the Respondent. Jerome Julien testified that he is employed as a credit and risk management officer at the Federal Reserve Bank of Chicago. He has known the Respondent since 1970, when both were juniors in high school, and has maintained contact with the Respondent since then. (Tr. 162-64) Julien was unaware of any use of cannabis or cocaine by the Respondent. (Tr. 164-65) He stated that the Respondent's reputation for truth and veracity in the community is outstanding. (Tr. 165)
Jacqueline Gollay, the Respondent's wife, testified that she has been licensed as an attorney in Illinois since 1988. She has known the Respondent since 1989, and she and he were married in 2000. (Tr. 168-69) Gollay stated that, for a period of time, she and the Respondent had a coat in their home which did not belong to either of them. Gollay disposed of this coat sometime in 2000, after checking with the Respondent to make sure it was all right to do so. (Tr. 171-72)
David Carrabotta testified that he has known the Respondent for thirteen to fourteen years. He and another attorney, Patrick O'Byrne, represented the Respondent on the criminal complaint filed against him charging him with possession of cannabis and cocaine. (Tr. 173-75) The prosecutor involved in that case wanted the Respondent to take alcohol education classes, and Carrabotta therefore contacted Daniel Horan of Magnolia House to arrange for the Respondent to complete an alcohol education course there. (Tr. 176-78) Upon the Respondent's completion of this course, the criminal charges against the Respondent were dismissed. (Tr. 178)
Carrabotta stated that he has spent many occasions over the years socializing with the Respondent. He has never seen the Respondent ingest cannabis or cocaine. (Tr. 182-83) The last time Carrabotta and the Respondent were out drinking socially together was early 1999. (Tr. 183) Carrabotta stated that the Respondent's reputation in the community for truth and veracity is very good. (Tr. 183)
The Respondent also testified on his own behalf. He is 46 years old and has been an attorney since 1980. He had been employed by various entities between 1980 and 1992 and, since 1992, has been a sole practitioner. (Tr. 186-87) His current practice is limited to criminal defense. (Tr. 188)
The Respondent has officed out of his home since 1994 or 1995. He has no support staff, and uses his cell phone as his business phone. He does not see clients at his home. Instead, when he receives calls from prospective clients, he makes appointments to meet them at various locations around the city where he is planning to be, such as the Daley Center or 26th Street. (Tr. 189-90) The Respondent stated that he has never made a notation in his attorney diary of the appointments he schedules with clients. (Tr. 188-90) He followed that same practice with respect to Mr. Green's case. (Tr. 190)
The Respondent stated that after his meeting with the individual he believed was named Green, he left for a case he had scheduled at the Daley Center, for which he was running late. It is possible, he said, that he reached for the cigarettes he had placed in the property tray at the Daley Center and said, "Give me those, I've got to get out of here," although he had no specific recollection of making any such remark. If he had made such a remark, he stated, it only meant that he had to leave to go to court. (Tr. 192)
The Respondent stated that his recall of the events in question was impaired because he had undergone open-heart surgery in late December and, in March of 2001, his wife was diagnosed with a terminal illness. (Tr. 193-94) The Respondent denied knowing that the cannabis and cocaine found by the deputy sheriff were in the coat he was wearing. He also denied ever making an attempt to flee the area. (Tr. 194-95)
The Respondent attended alcohol education classes at Magnolia House based upon his understanding that the criminal charges filed against him would be dismissed once the classes were completed. (Tr. 196-99) He denied ever telling Daniel Horan that he is a current social user of cannabis and cocaine, and stated that he has not used either of those substances since 1977, when he was in college. (Tr. 198-99) He last had a drink of alcohol in February of 1999. (Tr. 198)
With respect to Willie Jackson's case, the Respondent stated that it was most likely that his meeting with Jackson at traffic court on the morning of May 24, 1999 was with respect to a statutory summary suspension case involving Jackson, which was a case related to Jackson's DUI arrest but was filed under a different case number. (Tr. 201-03)
The Respondent stated that he was taking his disciplinary proceeding seriously. He was remorseful, he said, in that he was sorry he was negligent and grabbed the wrong coat. However, he continued to assert his innocence of the charges of misconduct brought against him. (Tr. 206-07)
The Administrator's Rule 277 report discloses that the Respondent has not been previously disciplined.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Our first task is to determine whether the Administrator has proven the charges brought against the Respondent. We note that, although the charges set forth in Count I are based upon allegations that the Respondent engaged in criminal conduct, the Administrator is not required to prove those charges beyond a reasonable doubt. Rather, the Administrator must establish that the Respondent engaged in the misconduct charged by clear and convincing evidence. See In Re Obartuch, 386 Ill. 323, 331, 54 N.E.2d 470, 474 (1944); In Re Ettinger, 128 Ill. 2d 351, 368-69, 538 N.E.2d 1152, 1160 (1989); and In Re Guy, 99 SH 91 (Hrg. Bd. 2000), approved and confirmed, M.R. 17401 (2001).
A less stringent standard of proof applies to disciplinary proceedings, even when a criminal act is alleged, because the purpose of a disciplinary proceeding differs from that of a criminal prosecution. While the purpose of a criminal prosecution is to punish a wrongdoer, the purpose of our disciplinary system is to protect the public, protect the integrity of our legal system, and insure that a particular individual is a fit person to practice law. See In Re Ettinger, supra, and In Re Lunardi, 127 Ill. 2d 413, 422, 537 N.E.2d 767, 770 (1989). Because of the distinctive purpose of attorney disciplinary proceedings, an attorney may be disciplined for engaging in criminal conduct even if he has never been formally charged with or prosecuted for it, and even if he has been acquitted of the crime. See In Re Sims, 144 Ill. 2d 323, 579 N.E.2d 865 (1991), (attorney properly found to have engaged in misconduct where evidence at disciplinary hearing showed he possessed and used cannabis and cocaine, even though attorney was never criminally prosecuted), and In Re Ettinger, supra, (attorney could be disciplined for misconduct which involved bribery of police officer, even though he was acquitted of criminal charges related to that misconduct).
Considering the evidence before us in light of the applicable standard of proof, we find that the Administrator has established by clear and convincing evidence that the Respondent engaged in the acts alleged and, specifically, that he knowingly possessed cannabis and cocaine on May 24, 1999, in violation of Illinois law. Our finding is based upon our consideration of the following factors:
First, it is undisputed that controlled substances were found in items associated with the Respondent. Cocaine was found inside an open cigarette pack the Respondent placed in a property tray at the security station of the Daley Center; cannabis was found inside a napkin the Respondent also placed in this tray. We note that, in the context of a criminal prosecution for possession of a controlled substance, where the State bears a heavier burden of proof, our Supreme Court has held that an individual's knowledge and intent may be inferred from the fact that illegal substances were found in a location under that individual's control. Thus, in People v. Bell, 53 Ill. 2d 122, 290 N.E. 2d 214 at 217 (1972), the Court rejected the defendant's argument that proof of his guilt was not established beyond a reasonable doubt because the drugs in question were not found on him but, rather, in his bedroom in an apartment he shared with others. The Court reasoned:
See also People v. Wells, 241 Ill. App. 3d 141, 608 N.E.2d 578 (3rd Dist. 1993), (discovery of drugs in a location under defendant's control, and in a place where he could or should have been aware of them, gives rise to an inference of knowledge and possession).
Considering the lesser standard of proof applicable to the instant proceeding, we believe that we can properly find the Respondent's possession of and control over the cocaine and cannabis created an inference that his possession was knowing. We also believe that the other facts and circumstances relating to the Respondent's possession of these substances do not rebut or undermine this inference. Thus, for example, we find the Respondent's claim, that he accidentally grabbed a coat belonging to a prospective client which was similar in size, shape, and color to his own coat, and which contained (along with the substances in question) the exact brand of cigarettes smoked by the Respondent, to be highly dubious. The credibility of the Respondent's version of events is further brought into question by his inability to recall the exact name of the prospective client with whom he had met just minutes prior to his arrest, the length of time he had spent with this client prior to going to the Daley Center, or the name of the client who referred this individual to him.
A second factor we consider as corroborative proof of the Respondent's knowing possession is that both of the Cook County deputy sheriffs who were working the security station at the Daley Center testified that, as Deputy Kennealy looked or was about to look inside the cigarette pack containing the cocaine, the Respondent tried to grab the pack from her, said, "Oh, shit, I have to get out of here," and tried to leave the area. (Tr. 24-26, 35-40) These comments and actions are indicative of a guilty state of mind on the part of the Respondent.
Significantly, the Respondent had a similar failure of memory with respect to this conduct. Although he disputed the testimony of the two deputies that he tried to "flee" the area, he did not dispute their testimony that he attempted to leave. He also could not recall whether he made any comment to the deputies at that time but stated it was possible he said, "Give me those, I've got to get out of here," meaning that he had to get to court. (Tr. 192) We find that neither the Respondent's testimony regarding his behavior on the morning in question, nor his explanation as to how he came to be in possession of a raincoat containing drugs, had the ring of truth to it. Moreover, he was impeached not only by his lack of recall of many details surrounding the incident in question, but also by the prior inconsistent statements he had made both at his deposition and in his sworn statement.
Finally, we find it significant that the Respondent, upon being discovered in possession of cannabis and cocaine, never expressed surprise or disbelief, nor did he ever deny that the substances belonged to him. While the Respondent's silence in the face of evidence incriminating him might not be sufficient to convict him were this a criminal prosecution, for purposes of this disciplinary proceeding it is another factor we consider as corroborative of our conclusion that the Respondent knowingly possessed the substances in question, and therefore engaged in the misconduct charged.
We acknowledge that there was also some impeachment of the two deputies by virtue of certain omissions or contradictions in the reports each had filed with respect to the incident involving the Respondent. However, we do not find that the impeachment of these deputies was of such a significant nature that it undermined the overall credibility of their testimony regarding the circumstances under which the substances were found and the Respondent's reaction, or lack thereof, upon their discovery.
Based upon our consideration of the testimony presented and the exhibits admitted at the hearing, and our determination as to the credibility of the witnesses, we find that the Administrator has established by clear and convincing evidence that the Respondent engaged in the following misconduct:
The Respondent is charged in Count II with making false statements under oath to the Administrator. The basis for the charges brought in Count II is that the Respondent, in giving a sworn statement to the Administrator regarding the allegations brought against him in Count I, denied that he knowingly possessed the substances in question and, instead, claimed that the raincoat in which the substances were found belonged to a prospective client and that the raincoat was mistakenly grabbed by him on his way to court.
We decline to make a finding that the Respondent engaged in the misconduct charged in Count II, and recommend that this count be dismissed. In our opinion, this count is not only duplicative of the charges brought in Count I, but improperly penalizes an attorney who chooses to defend himself in a disciplinary proceeding by denying the charges of misconduct brought against him.
Our Review Board has on prior occasions expressed concerns, and reservations, about the Administrator charging an attorney in a separate count of misconduct with lying to the Administrator, where the basis for this allegation is that the Administrator does not believe the attorney's denials of misconduct with respect to other charges brought. For example, in In Re Grosky, 96 CH 624 (Rev. Bd.), approved and confirmed, M.R. 15043 (1998), attorney Grosky was charged in Count I of a disciplinary complaint with making a false statement of material fact to a third person, and in Count II with making a false statement of material fact in connection with an attorney disciplinary matter. Count I was based upon the allegation that Grosky prepared and sent out a back-dated letter to an opposing attorney, to support Grosky's claim that he had notified opposing counsel prior to a particular court date that his client would not be present at court that day. The Administrator alleged that Grosky intentionally prepared and back-dated the letter in question in order to avoid having to pay opposing counsel for his time as a sanction for the failure of Grosky's client to appear at court. Count II was based upon Grosky, in a sworn statement to the Administrator, continuing to assert that he had not back-dated the letter.
A contested hearing was held on the allegations of misconduct. At the hearing, although his secretary testified to the contrary, Grosky continued to insist that he had prepared the letter to opposing counsel prior to the court date in question but that, due to an error on his secretary's part, the letter had not been sent out until after the court date. Thus, at the hearing, Grosky continued to maintain his denial of the charges of misconduct brought in Count I of the complaint. The Hearing Board resolved the credibility issues against Grosky, finding that he had engaged in the misconduct alleged in both Counts I and II, and recommending that he be suspended for three months.
The Administrator filed exceptions to the Hearing Board's recommendation, contending that Grosky's lying to the Administrator regarding the allegations of Count I was an aggravating factor which called for a harsher sanction than a three-month suspension. The Review Board, however, refused to recommend a harsher sanction and, in so doing commented as follows:
Similarly, in In Re Bartley, 96 SH 879 (Rev. Bd.), approved and confirmed, M.R. 15176 (1998), attorney Bartley was disciplined for overreaching, undue influence, breach of fiduciary duty, fraud, deceit, and conversion of more than $179,000 in funds belonging to an elderly, impaired client. At his disciplinary hearing, Bartley contended that he discussed the payment of these funds with his client, and that she had agreed to each of them. Even though Bartley's testimony was uncontradicated, the Hearing Board found it to be improbable and implausible, and found that he had engaged in each of the acts of misconduct charged. The Hearing Board also found, as an aggravating factor, that the Respondent made repeated misrepresentations and false statements in his testimony under oath before that Board.
The Review Board agreed with Bartley's claim that the Hearing Board improperly considered his testimony before the Hearing Board as a factor in aggravation. The Review Board stated:
* * *
We likewise agree that an attorney has the right to defend himself against charges of misconduct brought in a disciplinary proceeding, to deny those charges, and to require the Administrator to meet her burden of proving the charges. Even though we have found in the Administrator's favor on Count I, therefore, we will not find a second count of misconduct against the Respondent simply because he was unsuccessful in defending against the allegations of misconduct brought in the first count. We therefore recommend that Count II be dismissed.
Having found that the Respondent engaged in the misconduct charged in Count I, we must now determine an appropriate sanction. We note that, even though the misconduct charged in Count I does not involve any allegations of wrongdoing with respect to the Respondent's clients, and even though it does not otherwise relate to the Respondent's professional work as an attorney, it is nevertheless proper to impose discipline on the Respondent for those acts. An attorney, because of the nature of his office, is held to a higher standard of conduct with respect to upholding the law and, therefore, his involvement in criminal conduct merits disciplinary action in order to maintain the integrity of the legal system and protect our system of justice from reproach. See In Re Scarnavack, 108 Ill. 2d 456, 460, 485 N.E.2d 1, 3 (1985), and In Re Lunardi, 127 Ill. 2d 413, 422, 537 N.E.2d 767, 770 (1989).
In making a determination as to the appropriate sanction in this case, we find the Scarnavack and Lunardi cases to be instructive. In Scarnavack, the respondent, Alan Scarnavack, was convicted in federal district court of possessing .46 grams of cocaine and was sentenced to a term of six months imprisonment which was stayed by a sentence of probation. Following his conviction, the Administrator filed a disciplinary complaint against the respondent based upon his criminal conduct.
At his disciplinary hearing, Scarnavack acknowledged that he had knowingly and unlawfully possessed the cocaine in question. He stated that he had obtained the cocaine from a client but could not recall when, where, or from which particular client he had received it. He also stated that he did not request the cocaine from the client, and that it was not given to him in exchange for legal services. He could recall no other details regarding how or why he came to be in possession of the cocaine.
The Illinois Supreme Court found that Scarnavack's possession of a controlled substance was misconduct warranting discipline but further found, in light of the number of mitigating factors present in that case, that a censure was warranted. The mitigating factors considered by the Court consisted of the following: 1) at the time of the criminal act in question, the respondent was undergoing marital difficulties which caused a temporary lapse in judgment; 2) the respondent had never been previously disciplined; 3) the respondent's possession of cocaine appeared to be an isolated instance, and there was no evidence of an intent on his part to sell or distribute the substance; 4) the respondent had an excellent reputation in the legal profession and in his community; and 5) the respondent admitted his misconduct, and expressed remorse and regret for it.
In Lunardi, the Illinois Supreme Court concluded that the respondent, Steven Lunardi, should be suspended for 18 months for misconduct which included unlawfully possessing cocaine and cannabis. Lunardi pleaded guilty to and was convicted in state court of possession of cocaine. Subsequently, the Administrator filed a three-count complaint against him. Count I was based upon Lunardi's unlawful possession of both cocaine and cannabis. Counts II and III were based upon Lunardi making two personal loans to a judge who was a personal friend of the respondent, during a time when Lunardi was appearing on cases before the judge.
Like Scarnavack, Lunardi had never been previously disciplined. He also presented character witnesses who testified to his excellent reputation in the community, and, at his disciplinary hearing, expressed remorse for his conduct. Nevertheless, the Court found that there were a number of factors which distinguished Lunardi's case and called for a harsher sanction than that imposed upon Scarnavack. First, unlike Scarnavack, Lunardi was a frequent substance abuser who had purchased, possessed, and used drugs over a period of several years. In addition, Lunardi was found in possession of four to five ounces of cannabis and nearly an ounce of cocaine, in contrast to the .46 grams of cocaine found in Scarnavack's possession. Finally, Lunardi, in addition to engaging in criminal conduct, had engaged in other misconduct by improperly making loans to a judge before whom he regularly appeared. In light of all these circumstances, the Court found, a suspension of 18 months was appropriate.
We consider that the Respondent's conduct in the instant case falls somewhere in between the conduct at issue in Scarnavack and Lunardi. Like Scarnavack, the only misconduct for which the Respondent is being disciplined in the instant case is his unlawful possession of a controlled substance. The amounts in question here, like the amounts in question in Scarnavack, are small, and we have no evidence that the Respondent intended to sell or distribute these substances. The Respondent also has never been previously disciplined, and presented character witnesses at his disciplinary proceeding who testified to his good reputation in the community.
On the other hand, the Respondent has never expressed remorse or regret for his conduct, except to state that he was "remorseful" for being negligent in grabbing the wrong coat on the morning of May 24, 1999. (Tr. 206-07) While we have chosen not to find a separate count of misconduct against the Respondent simply because he was unsuccessful in defending himself against the allegations of Count I, we nevertheless believe we can consider the Respondent's lack of remorse as a factor in aggravation of the sanction to be imposed on Count I. See In Re Lewis, 138 Ill. 2d 310, 342-48, 562 N.E.2d 198, 211-14 (1990), (an attorney's lack of remorse can be considered in aggravation of the sanction to be imposed).
Thus, based upon the nature of the misconduct established in this case and the factors in aggravation and mitigation which we have outlined above, we believe there should be a period of suspension imposed upon the Respondent. The facts of this case more closely resemble those in Scarnavack than those in Lunardi, and we therefore find that a lesser sanction than that imposed in Lunardi is appropriate. On the other hand, because of the Respondent's lack of remorse, we find that a harsher sanction than a censure is warranted. We therefore recommend that the Respondent be suspended for six months.
Date: January 28, 2003