Conlan Press puts the work of Peter Beagle and the rights of customers in the hands of Charlie Petit. His license was taken away in 2007 for scamming $10,000 from the estate of John Steinbeck.
Petit is Charlie@conlanpress.com , and cepetit@scrivenerserror.com. He’s named here as attorney for Peter Beagle. This site holds official Conlan Press legal documents signed by Petit. Here’s a 2013 DMCA Takedown Request that Petit issued on behalf of Cochran’s Avicenna Development corporation, forcing a Last Unicorn fan site to remove content “after 17 years on the web.”
Connor Cochran, owner of Conlan Press, fends off scam victims with free legal service from Petit. Petit isn’t allowed legitimate lawyer work. A scam victim can not hope to get justice without paying high fees, while the scammer gets it free. This chills complaints – leaving it up to fans and victims to help each other.
This record shows Petit’s rare and extraordinary discipline. License loss only happens in very egregious cases. The Illinois News-Gazette says: “Although he was only suspended for six months, the Illinois Supreme Court ruled that he would not be allowed to practice law until further order of the court. That’s legalese suggesting it’s highly unlikely the 1995 graduate of the University of Illinois College of Law ever will be allowed to return to his profession.” The Illinois State Bar says he is Not Authorized To Practice since 2007.
_____________________________
Filed May 14, 2007
In re Charles Emil Petit
Commission No. 06 SH 30
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; 2) breaching fiduciary duties to a client; 3) obtaining an unreasonable fee; and 4) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: Rules 1.5(a) and 8.4(a) (4) of the Illinois Rules of Professional Conduct; and Supreme Court Rule 770
RECOMMENDATION: Suspension from the practice of law for six (6) months and until further order of the Court
DATE OF OPINION: May 14, 2007
HEARING PANEL: Richard W. Zuckerman, James R. Mendillo, and Carolyn Berning
RESPONDENT’S COUNSEL: Pro se
ADMINISTRATOR’S COUNSEL: Deborah Barnes
BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION
|
In the Matter of: CHARLES EMIL PETIT, Attorney-Respondent, No. 6230038. |
Commission No. 06 SH 30 |
REPORT AND RECOMMENDATION OF THE HEARING BOARD
INTRODUCTION
The hearing in this matter was held on November 14, 2006, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois before a Hearing Board Panel consisting of Richard W. Zuckerman, Chair, James R. Mendillo, lawyer member, and Carolyn Berning, public member. The Administrator was represented by Deborah Barnes. The Respondent appeared at the hearing pro se.
PLEADINGS AND PRE-HEARING PROCEEDINGS
On May 2, 2006, the Administrator filed a two-count Complaint against the Respondent. Count I of the Complaint alleged that in January 2002, Nancy Steinbeck consulted the Respondent about representing her. Nancy Steinbeck was the former wife of John Steinbeck IV, the son of author John Steinbeck. John IV died in 1991, Nancy was the beneficiary of John IV’s will, and as such had received substantial royalty payments from the literary works of John Steinbeck. The Respondent agreed to represent Nancy in regard to her claims against the literary agent for the beneficiaries of John IV’s estate and/or other beneficiaries thereof. On January 15, 2002, they signed a representation agreement that provided the Respondent would receive $115 per hour for “investigation and research,” $195 per hour for “appellate matters, appearances in court, or before arbitration panels or mediators,” and $165 per hour for “all other hours expended.” The Respondent did not file any action related to Nancy’s claims after January 15, 2002.
On numerous occasions between January 15, 2002, and July 17, 2003, Nancy had numerous telephone conversations with the Respondent. During the telephone conversations, the Respondent told Nancy that he had filed a complaint with the New York Disciplinary Committee regarding the conduct of McIntosh and Otis employees Winick and Pinkus, and that the Committee was actively investigating the matter. He advised Nancy not to file any action while the disciplinary matter was pending. The Respondent knew or should have known his foregoing statements to Nancy were false because he had not filed any complaint with the New York Disciplinary Committee.
Sometime between October 2003 and February 2004, the Respondent told Nancy that he had obtained documents, specific letters and memoranda, relating to her claims against McIntosh and Otis, and other beneficiaries. The Respondent knew or should have known his foregoing statement to Nancy was false because he had not received any of the documents and had fabricated their existence.
In February 2004, Nancy asked the Respondent to send her copies of the above documents. The Respondent told her that he had sent some of the documents to an expert document examiner. The Respondent knew or should have known his foregoing statement was false because the documents did not exist and he had not consulted with an expert document examiner.
On February 26, 2004, Nancy telephoned the Respondent and told him she had learned from the New York Disciplinary Committee that no complaint had been filed against theMcIntosh and Otis employees.
She also told him she did not believe he had the documents as he had claimed. The Respondent acknowledged to her that he had been misleading her for more than two years about the purported New York Disciplinary Committee complaint and the documents.
Count II of the Complaint alleged that between January 2002 and July 17, 2003, the Respondent sent bills to Nancy Steinbeck stating that he had worked approximately 54 hours on the matter described in Count I, including 25 hours of “investigation” of McIntosh and Otis, and requested payment in the amount of $10,899.12. Nancy paid the Respondent the $10,899.12. However, the Respondent did not perform sufficient services to justify a fee of $10,899.12, and did not perform 25 hours of legal services on an investigation of McIntosh and Otis. [Emphasis added.]
Based upon the factual allegations, the Administrator charged that the Respondent engaged in dishonesty, fraud, deceit or misrepresentation (Counts I and II); breached his fiduciary duty (Count II); obtained an unreasonable fee (Count II); and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute (Counts I and II).
On July 19, 2006, the Respondent filed an Answer. He admitted some of the facts alleged, denied others, and denied the charges of misconduct.
THE EVIDENCE
The Administrator presented the testimony of Nancy Steinbeck, Dr. Lawrence L. Jeckel, and the Respondent as an adverse witness. The Administrator’s Exhibits 1 through 13 were received into evidence. (Tr. 7, 65) The Respondent testified on his own behalf, and his exhibits 1 and 2 were received into evidence. R. 9, 67)
Nancy Steinbeck
Nancy Steinbeck testified that she is 61 years of age and resides in the State of Arkansas. She was formerly married to John Steinbeck, IV, the son of John Ernest Steinbeck, the famous author. John IV died in 1991 and, pursuant to his will, Nancy was to receive the royalty payments that John IV had been receiving from his father’s estate. (Tr. 11-12)
In 2001, Tom Steinbeck, the brother of John IV, filed an action in the probate court in California against Nancy, seeking a portion of John IV’s estate. The New York agency that was handling the John Ernst Steinbeck Estate, McIntosh and Otis, then withheld the royalty income Nancy had been receiving. Nancy said she then looked for an attorney who “understood agency fraud” and contacted the Writer’s Union. The Writer’s Union referred her to the Respondent. (Tr. 12-13, 42, 44-46)
During her first conversation with the Respondent, which occurred in November 2001, he appeared to be very angry about how she had been treated. He told her he was the “perfect lawyer to handle this case,” he had “handled many high profile copyright cases;” he had “connections in the literary world;” and he “was an expert in extracting information in nefarious ways.” He voiced the opinion that McIntosh and Otis “had no right to withhold that money [from her].” Two of the people who ran McIntosh and Otis, Eugene Winick and Samuel Pinkus, were attorneys. The Respondent explained that he had a duty to report any ethical violation by an attorney and that the “first thing he was going to do was to report” Winick and Pinkus to the New York Bar Ethics Committee. Nancy and the Respondent signed a Representation and Fee Agreement (Adm. Ex. 1) on January 15, 2002. (Tr. 13-16)
Sometime prior to February 20, 2002, the Respondent filed a Complaint on behalf of Nancy with the Association of Authors Representatives (AAR) against Winick and Pinkus. AAR is the “only governing board for literary agents.” The Respondent provided Nancy with a letter dated February 20, 2002 (Adm. Ex. 13, p. 2), that he had sent to attorneys in New York regarding the AAR complaint. (Tr. 39, 45)
In March 2002, the Respondent sent a letter to the Disciplinary Committee in New York (Adm. Ex. 2). The letter requested an “ethics opinion” based on a factual situation without including the names of any individuals. He provided Nancy with a copy of this letter. About a “couple of months” later, the Respondent told her that the New York Ethics Committee was very interested and that he had sent a letter to the Ethics Committee naming Winick and Pinkus. He also told her that the Ethics Committee asked him for papers pertaining to the matter. Subsequently, the Respondent “constantly” told her there was a “flow of paper back and forth” with the Bar Committee, but that it was “confidential” and he could not “tell [her] what it’s about or it will endanger [her] legally.” (Tr. 16-18)
Nancy also testified that the Respondent told her the New York Bar was “essentially gathering” evidence for her, which could be used in support of a lawsuit against Winick and Pinkus. He said the New York Bar could “put pressure on Winick and Pinkus to release my money.” He also told her that she “could not file suit or take any other action while the [New York] disciplinary complaint was pending.” He did not tell her that it is an ethical violation in Illinois to file a disciplinary complaint in order to gain an advantage in a civil action. (Tr. 18-21)
The Respondent also told Nancy that he had “spies at McIntosh and Otis,” and the spies were going into the files to obtain information for him. (Tr. 19)
In July 2003, Nancy and her adult children met with the Respondent in Little Rock, Arkansas. She described the meeting as “a complete waste of time.” The Respondent “regaled [them] with stories about his counter-terrorism escapades” and said he “had spies at McIntosh and Otis getting stuff out of the files to prove [Nancy’s] case.” The Respondent also mentioned specific letters and other documents showing that people were “colluding … to take away [her] royalty payments” and that there was a breach of fiduciary duty. One of the reasons the Respondent asserted for not giving the documents to Nancy was that he had sent them to a forensic documents examiner. (Tr. 22-26)
After meeting with the Respondent, Nancy was “scared” and “disturbed.” On August 8, 2003, she sent an e-mail to the Respondent and demanded to see several documents that he had mentioned. (Adm. Ex. 7, p.1) She said that she never saw any of the documents “because they don’t exist.” During a telephone conversation shortly after she sent the e-mail, the Respondent told her that he had been diagnosed with depression and named the medication he was taking. He continued to tell her that he could not get the documents because they were still with the document examiner. (Tr. 26-31)
In February 2004, Nancy sent an e-mail to the Respondent expressing her doubt whether the documents previously described by the Respondent actually existed. (Adm. Ex. 7, p. 2) The Respondent replied and apologized for misleading Nancy. (Adm. Ex. 7, p. 3) He added, however, that he did not intentionally mislead her (Adm. Ex. 7, p. 4) Thereafter, Nancy contacted the New York Bar Ethics Committee and learned that no complaint had been filed against Winick or Pinkus. She then telephoned the Respondent, told him that she knew he had lied to her, and fired him. The Respondent “started crying” and said “I can’t believe I’ve done this.” On that same date, February 26, 2004, the Respondent sent Nancy a letter resigning as her attorney (Adm. Ex. 4). (Tr. 31-35)
At some point, Nancy told the Respondent she would let the matter rest as long as he cooperated with her and her new attorney. She then hired attorney Sandy Housler, and the Respondent turned over some records. However, the Respondent “continued to lie to” Nancy and, she filed a complaint with the ARDC. (Tr. 35-36, 41-44)
The Respondent sent Nancy four billing statements. The statement, dated April 20, 2003, billed 10.9 hours for the “investigation” and “integration” of McIntosh and Otismaterials (Adm. Ex. 5, p. 1). The statement of July 16, 2003, billed 10.4 hours for the “investigation” of McIntosh and Otis and 6.1 hours for the “integration” of the investigation materials (Adm. Ex. 5, p. 2). The statement of October 21, 2003, billed 5.1 hours for the “investigation” of McIntosh and Otis (Adm. Ex. 5, p.2a). A final statement was sent to Nancy on March 17, 2004 (Adm. Ex. 5, p.4). She paid the Respondent $312 in November 2002, $5,413 in July 2003, and $5000 in September 2003. Nancy telephoned the Respondent and told him he could refund the fees she paid or she would pursue a malpractice suit against him. The Respondent said he could not make a refund. She has not filed any civil action against him. (Tr. 37-39, 46)
Finally, Nancy stated that the probate matter in California was eventually settled. (Tr. 42)
The Respondent
The Respondent admitted that he committed the misconduct charged in Count I of the Complaint. (Tr. 76) Specifically, he admitted that he “improperly deceived” his client, Nancy Steinbeck, about a “number of matters,” and that his “misrepresentations were not acceptable.” (Tr. 63, 69) He stated that he regretted his actions and that his misrepresentations were intertwined with his mental condition at that time. (Tr. 63, 69, 76, 77) [Emphasis added.]
He said that his first contact with Nancy Steinbeck was in late October 2001. When he was hired by her, he agreed to investigate the matter of McIntosh and Otis, a literary agent, withholding royalty payments she had been receiving through the probate estate of her former husband. (Adm. Ex. 1) He also told Nancy that he would file an ethics complaint in New York against attorneys Eugene Winick and Samuel Pinkus, who were principals and/or employees of McIntosh and Otis. (Resp. Ex. 1, p. 1-3) He said he “may have” told Nancy that the filing of the ethics complaint “was a way to exert pressure on [McIntosh and Otis] to release her money.” (Tr. 49-50)
In March 2002, the Respondent sent what he described as a “sanitized inquiry to the New York bar” (Adm. Ex. 2). By “sanitized” the Respondent said he meant that it “included no identifying information concerning any individual involved.” He received a telephone call from the New York Bar about three weeks later indicating that “any further action would need to be unsanitized, so to speak, with specific details.” The Respondent did not file any complaint, did not send any other document, and did not receive any other communication from the New York Bar in this matter. Nevertheless, he told Nancy that he had filed a complaint with the New York Bar and that there was a “continual flow of paper back and forth regarding the subject area of the inquiry.” (Tr. 51-53)
The Respondent told Nancy he was having certain documents reviewed by a handwriting expert. In a sworn statement to the ARDC on February 1, 2006, the Respondent similarly said that he had documents reviewed by a handwriting expert. He identified the handwriting expert as “Walter Wilson,” and said that Wilson had moved to Florida. However, the Respondent acknowledged that he had not sent any documents to be examined by a handwriting expert and that the purported expert named Walter Wilson does not exist. (Tr. 53-57)
On February 3, 2006, ARDC counsel sent a letter to the Respondent requesting him to provide certain documents he had mentioned in his sworn statement two days earlier, and which Nancy Steinbeck had requested from him in August 2003. (Adm. Ex. 6, p. 4; Adm. Ex. 7, p. 1) ARDC counsel sent a second request for the documents on February 24, 2006. (Adm. Ex. 6, p. 5) The Respondent acknowledged that he did not respond to either the foregoing letters or disclose, at any time, that the documents did not exist. (Tr. 55-57)
In his Answer to the disciplinary complaint, the Respondent admitted for the first time that the above documents did not exist. (Adm. Ex. 7, p. 1; Adm. Ex. 8, par. 7-9, p. 6-8) He also admitted, for the first time in his Answer, that the purported handwriting expert Walter Wilson did not exist. (Adm. Ex. 8, par. 11-12, p. 8-9) The Answer was filed on July 19, 2006. (Tr. 56-57, 59-60) [Emphasis added.]
On July 25, 2006, ARDC counsel sent him a request to produce documents, including “correspondence and accompanying documents sent to and received from the expert witness you identified as Walter Wilson in your sworn statement given on February 1, 2006.” (Adm. Ex. 12, p. 3) In an affidavit submitted on August 28, 2006, in response to the foregoing request, the Respondent failed to disclose that Walter Wilson did not exist, but rather stated that a search of his paper and electronic documents “thus far has not recovered any responsive documents,” and that responsive documents “probably” will not be discovered. (Adm. Ex. 12, p. 10). (Tr. 57-58, 60)
When asked why he did not disclose in his response to the request to produce that Walter Wilson did not exist and that there were no documents pertaining to Wilson, the Respondent said: “At that point I was not entirely certain. I believed that the probability was very high at that point. With hindsight I should have disclosed directly in so many words that I did not, that I suspected Walter Wilson did not exist and that there were no documents…. At that point I had not reviewed all of the available electronic files. I was being forced to recover damaged media and I wanted to be sure that I reviewed everything that would be available before I gave you a definitive answer. In hindsight I should not have been so reticent.” When asked again, the Respondent said: “It appears that I overread the Administrator’s request…to mean that [it] also included anything that I might have intended to send [to an expert].”
Finally, the Respondent was asked why he did not tell ARDC counsel that Walter Wilson did not exist, he replied: “embarrassment as much as anything else. Shame may be a better word.” (Tr. 59, 61-62) The Respondent explained that Nancy Steinbeck “was not the easiest client to deal with” and that he later realized her “situation was beyond my capabilities to represent.” When asked why he told Nancy he had certain documents that he did not have, he replied: “I can’t give any single definitive answer to that. My belief is that I told her that from a combination of…attempting to deal with a client who frequently descended into hysteria during telephone calls and misestimation of my own abilities and responsibilities.” (Tr. 62, 69) [Emphasis added.]
On February 26, 2004, following a telephone conversation with Nancy Steinbeck, the Respondent reported his misconduct to the ARDC. (Resp. Ex. 1) He said that in February 2004, Nancy was not aware that he was going to or had reported the matter to the ARDC. However, on at least two occasions Nancy told him he needed to cooperate with her or she was going to report him to the ARDC. (Tr. 70, 78, 84-85)
It was pointed out to the Respondent that in his report to the ARDC in February 2004 (Resp. Ex. 1), he used terms, such as “apparent misrepresentations” and “I appear to have represented,” and did not expressly state that he made false statements about documents which did not exist. He explained that his “self report” was the “best information that I had available to me at that time in the state I was in.” At that time, he “didn’t have direct recall of what” he had told Nancy, and he was not “prepared to accept” that he had lied to Nancy. He was “confused at the time” and “felt that my judgment was so impaired that I did not want to draw that kind of conclusion [making misrepresentations to his client] as impaired as I was feeling.” He further said “I didn’t have direct memory of much of what had been going on.” (Tr. 70, 78-80, 117)
In regard to his mental condition, the Respondent said that he has had migraine headaches that lasted “anywhere from 6 to 36 hours.” During those attacks he is “essentially incapable of functioning” and “everything is so jumbled during the attacks that I can’t sort it out at a later time.” For example, “I honestly can’t say if someone had spoken to me during that time period whether I would remember that person or not.” He currently takes painkillers that “significantly reduce the frequency of the migraines.” (Tr. 116-17, 121-22)
The Respondent mentioned the “personal stress” and even “despair” he has suffered from his family situation and his own health problems. He noted that his oldest son has received inpatient psychiatric care on more than one occasions. He said he is receiving “substantial assistance in therapy,” and believes he is “much more aware of the potential warning signs in which I might be vulnerable to making any kind of misrepresentation to anyone.” (Tr. 63, 82, 117)
The Respondent further testified that he has “changed the nature of [his] practice” in order to prevent a repetition of misconduct. He said he has other attorneys and/or experienced literary agents available to review his files. When there is “even a hint that there will be litigation forthcoming, I immediately onsult with other counsel.” He works out of his home and “severely” limits the amount of work he does so that he will not become overburdened. He estimated that he spends about 12 to 15 hours a week on legal work. (Tr. 83, 118-20)
Finally, in regard to Count I, the Respondent pointed out there was a stipulation that Nancy Steinbeck’s present counsel would testify the misrepresentations the Respondent made did not adversely affect any of Nancy’s litigation. (Tr. 66-67, 70-71; Resp. Ex. 2)
In regard to Count II, the Respondent denied that he obtained an unreasonable fee from Nancy Steinbeck. He said that while some of the charges in his billing statements (Adm. Ex. 5) were not proper, such as the charges relating to the investigation of McIntosh and Otis, Nancy paid him about $4,000 less than the amount he billed. He noted that the charges relating to McIntosh and Otis were less than $4,000. He also said that he promptly attempted to correct his billing invoice (Adm. Ex. 5, p. 4). He further noted that he assisted Nancy’s counsel, Mr. Bond, in the California probate litigation and, when Mr. Bond withdrew, the Respondent “assisted Ms. Steinbeck in a transition to new counsel, Mr. Thomas Munson.” The Respondent also participated in a mediation hearing for the probate matter and a “general settlement was reached.” He said it then “took us collectively several months to work out specific language in that general settlement agreement.” (Adm. Ex. 5, p. 2, 2a, 4) Further, he said he “provided all necessary documents to opposing counsel” in a copyright matter involving Nancy. (Tr. 71-73, 76-77) [Emphasis added.]
Lawrence Lee Jeckel
Dr. Jeckel testified that he is a physician specializing in psychiatry. He briefly described his background and his curriculum vitae was received into evidence. (Tr. 86-88; Adm. Ex. 10)
Dr. Jeckel was asked by the ARDC to evaluate the Respondent. He met with the Respondent on two occasions, March 29 and July 18, 2006, considered various materials, and prepared a report. (Tr. 88-92; Adm. Ex. 11)
Dr. Jeckel made a diagnosis of the Respondent. First, the Respondent has a Mixed Personality Disorder. This is a “pervasive, usually lifelong pattern of maladaptive thinking and behavior which … would cause a social and occupational impairment.” Second, he has a “Dysthymic Disorder.” This is a depression that “comes and goes,” and sometimes impairs sleep and appetite. Third, he has a Major Depressive Disorder. This results in the Respondent feeling “suicidal, helpless, very depressed and I think required hospitalization at one point.” The Respondent’s “primary problem” is his personality disorder. (Tr. 93-94; Adm. Ex. 11, p. 10)
The Respondent is currently prescribed Wellbutrin by Dr. Luke Yang, and he has a session with Harry Vandervelde, MSW, at the Champaign County Mental Health Center every other week. However, Dr. Jeckel voiced concern that the Respondent is not addressing any of his issues. The Respondent has not been forthcoming about his problems to Mr. Vandervelde. Also, Mr. Vandervelde “provides mostly a sounding board” and is “just listening to” the Respondent. Dr. Jeckel explained that the sessions with Mr. Vandervelde are “not therapy.” The Respondent has not improved while having these sessions. (Tr. 96-97, 101-02; Adm. Ex. 11, p. 6, 7)
In regard to the Respondent’s “self-report” letter to the ARDC (Resp. Ex. 1), Dr. Jeckel said it contained “a lot of impressionistic language,” “a lot of [his] equivocation,” and few “real facts.” He also noted that after the Respondent acknowledged he fabricated Walter Wilson, he “then turned around and said there was a Walter Wilson.” Dr. Jeckel said it is “very mysterious again why he would do that when the truth would serve him better.” In regard to the Respondent’s continuing misrepresentations to disciplinary counsel, Dr. Jeckel said “it’s lying upon lying upon lying and I think it’s a sign of very serious and unique personality disorder.” (Tr. 95-96, 99, 102-03)
Dr. Jeckel noted that the Respondent had “serious external stresses,” such as his son being mentally ill, but that his inability or unwillingness to provide detailed factual answers “is due to a larger problem in the way [Respondent] thinks about things and act.” (Tr. 114)
Dr. Jeckel voiced the opinion that the Respondent’s psychological condition affects his ability to practice law, and that his misconduct relating to Nancy Steinbeck was “related to his current mental health condition.” Dr. Jeckel also voiced the opinions that the Respondent is presently at risk to repeat his misconduct and that he “is not fit to practice law.” (Tr. 93-94, 103-05; Adm. Ex. 11, p. 12)
In order for the Respondent to become fit to practice law, Dr. Jeckel recommended that the Respondent be evaluated for at least six months and possibly a year by a psychiatrist or a psychologist who works with personality disorders. It is important for the Respondent to be asked “very hard questions about his thinking and behavior” and to “talk honestly and openly about his feelings and his behaviors.” During the period of evaluation, the Respondent would also receive “beginning therapy.” Once there is a better understanding of the “extent of [his] problems,” an appropriate course of treatment could be pursued. (Tr. 103, 110-13; Adm. Ex. 11, p. 12-13)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Storment, 203 Ill. 2d 378, 390, 786 N.E.2d 963, 969 (2002). This standard requires a high level of certainty, greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 276 (1995). In determining whether the burden of proof has been satisfied, the Hearing Panel has the responsibility of assessing the credibility and believability of the witnesses, weighing conflicting testimony, drawing reasonable inferences from the evidence, and making factual findings based upon all the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126, 1133 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 N.E.2d 983, 987 (1990). In assessing the evidence, the Hearing Panel is not required to be “naïve or impractical” or to believe testimony that is “beyond human experience,” “an unreasonable story,” or “an inherent improbability.” In re Discipio, 163 Ill. 2d 515, 523-24, 645 N.E.2d 906, 910 (1994); In re Holz, 125 Ill. 2d 546, 555, 533 N.E.2d 818, 821 (1989); Tepper v. Campo, 398 Ill. 496, 504-05, 76 N.E.2d 490, 494 (1948).
Additionally, an admission in a pleading is a formal judicial admission that is binding on the party making it, may not be contradicted, has the effect of withdrawing the fact admitted from issue, and dispenses with the need for any proof of that fact. See In re Estate of Rennick, 181 Ill. 2d 395, 406-07, 692 N.E.2d 1150, 1156 (1998); El Rincon v. First Mutual Insurance. 346 Ill. App. 3d 96, 100, 803 N.E.2d 532, 535-36 (2004); Caponi V. Larry’s 66, 236 Ill. App. 3d 660, 671, 601 N.E.2d 1347, 1355 (1992). Thus, when a respondent in a disciplinary matter admits in his or her answer some or all of the facts alleged in a complaint, it is unnecessary for the Administrator to present evidence to prove the facts so admitted. See In re Harris, 97 SH 88, M.R. 16300 (January 24, 2000) (Hearing Board Report at 42); In re Carlson, 98 CH 880, M.R. 17398 (June 20, 2001) (Hearing Board Report at 11).
With the above principles in mind, and after considering all of the evidence, we make the following findings.
Count I
We find that the misconduct charged in Count I was proved by both the evidence presented at the hearing and the Respondent’s admissions in his Answer.
As charged in Count I, the Respondent repeatedly and knowingly made false statements to his client Nancy Steinbeck during an approximate two-year period, January 2002 to February 2004. Specifically, the Respondent made the following false statements.
The Respondent told his client that he had filed a complaint against attorneys Winick and Pinkus with the New York disciplinary authorities. (Tr. 17-18; Answer, p. 6, par. 6) However, the Respondent never filed such a complaint and he clearly knew that he had not done so. (Tr. 51, 64; Answer, p. 6, par. 5 & 6)
The Respondent told Nancy Steinbeck that New York disciplinary authorities were conducting an investigation of his complaint against Winick and Pinkus and gathering evidence against Winick, Pinkus and their employer, McIntosh and Otis. (Tr. 18, 21, 51-52) However, the Respondent knew there was no such investigation because no complaint had been filed. (Tr. 63-64; Adm. Ex. 3; Answer, p. 6, par. 5)
The Respondent told Nancy Steinbeck that there was a “flow of paper back and forth” between the Respondent and the New York disciplinary authorities. (Tr. 18-20, 51) However, the Respondent knew that there was no such exchange of documents. (Tr. 52, 64; Adm. Ex. 3)
The Respondent told Nancy Steinbeck that his communications with the New York disciplinary authorities were “confidential” and, thus, he could not discuss them with her. (Tr. 18, 20, 51) Clearly, the Respondent knew there were no confidential communications between him and the New York disciplinary authorities because he did not provide information about any named individual, there was no disciplinary investigation, and there was simply no exchange of information. (Tr. 63-64; Adm. Ex. 3)
The Respondent told Nancy Steinbeck that she could not file any suit or take other action while the disciplinary complaint in New York was pending. (Tr. 21) The Respondent knew that the foregoing representation was false and misleading because he knew no disciplinary complaint had been filed. (Tr. 51, 64)
The Respondent told Nancy Steinbeck that he had obtained copies of letters between attorney Winick and two of Nancy’s relatives, showing attempts to defraud Nancy out of certain royalties. (Tr. 24-25; Adm. Ex. 7, p. 1; Answer, p. 6-7, par. 7) However, the Respondent knew that he never had such letter or copies thereof. (Tr. 57, 60; Answer, p. 7-8, par. 8 and 9)
The Respondent told Nancy that he had obtained a copy of a letter Thomas Steinbeck wrote to attorney Winick, showing Thomas’ desire to see Nancy receive no additional royalty payments. (Tr. 25; Answer, p. 6-7, par. 7) However, the Respondent knew that he never had such letter or a copy thereof. (Tr. 57, 60; Answer, p. 7-8, par. 8 and 9)
The Respondent told Nancy that he had obtained a copy of a memorandum onMcIntosh and Otis letterhead, showing that McIntosh and Otis was forging documents. (Tr. 26; Answer, p. 6-7, par. 7) However, the Respondent knew that he never had such a memorandum or copy thereof. (Tr. 57, 60; Answer, p. 7-8, par. 8 and 9) The Respondent told Nancy that he had sent some of the above mentioned documents to a document examiner or handwriting expert. (Tr. 26-27, 53; Adm. Ex. 7, p. 2; Answer, p. 8, par. 10) However, the Respondent knew that he never had such documents; knew that the purported examination expert did not exist; knew he never sent any documents to a document examiner or handwriting expert; and knew the statements that he sent documents to be examined were false. (Tr. 54-57, 60, 63; Answer, p. 8-9, par. 11)
It is well established that an attorney engages in dishonesty and deceit by knowingly making false or misleading statements to a client. See In re Ring, 141 Ill. 2d. 128, 143, 565 N.E.2s 983, 988-89 (1990); In re Levin, 101 Ill. 2d 535, 539-40, 463 N.E.2d 715, 717 (1984) Furthermore, an attorney who acts in a dishonest or deceitful manner, particularly toward a client, tends to bring the legal profession into disrepute. See In re Stern, 124 Ill. 2d 310, 314-15, 529 N.E.2d 562, 564 (1988). In this case it is clear that the Respondent repeatedly and knowingly made false statements to and acted with dishonesty toward his client Nancy Steinbeck.
Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct as charged in Count I: (a) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct; and (b) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.
Count II
In regard to Count II, we find that the Respondent engaged in dishonest and deceitful conduct, and breached his fiduciary duties to his client.
Fraud and dishonesty include “any conduct, statement, or omission that is calculated to deceive.” In re Gerard, 132 Ill. 2d 507, 528, 548 N.E.2d 1051, 1059 (1989).
An attorney-client relationship creates a fiduciary relationship between the attorney and client. Because of this fiduciary relationship, the attorney owes the client a high “measure of good faith,” undivided fidelity,” and “loyalty.” In re Winthrop, 219 Ill. 2d 526, 543-44, 848 N.E.2d 961, 972-73 (2006); In re Imming, 131 Ill. 2d 239, 252-53, 255, 545 N.E.2d 715, 721, 722 (1989).
In this case, the evidence showed that the Respondent sent to his client, Nancy Steinbeck, three billing invoices in which he claimed to have worked a number of hours on an investigation of the New York literary agent McIntosh and Otis (M & O).Specifically, his invoice of April 20, 2003, listed 6.2 hours of work for the “investigation of M & O” and 4.7 hours for the “integration of M & O investigation results and materials.”(Adm. Ex. 5, p. 1; Tr. 37) The Respondent’s invoice of July 16, 2003, listed 10.4 hours of work for the “investigation of M & O” and 6.1 hours for the “integration ofM & O investigation results and materials.”(Adm. Ex. 5, p. 2; Tr. 37) The Respondent’s invoice of October 21, 2003, listed 5.1 hours of work for the “investigation of M & O.” (Adm. Ex. 5, p. 2a; Tr. 37) Clearly, the Respondent sent the foregoing billing invoices to Nancy for the purpose of having her pay him for the hours of work listed.
The evidence, including the Respondent’s own admissions, showed that he did not conduct an investigation of M & O, and that the hours of work relating to the purported investigation of M & O listed on the three billing invoices were false. In other words, the Respondent completely fabricated his purported investigation of M & O. For example, the Respondent told his client he had spies looking through files; that he had obtained certain M & O documents; and that he had sent those documents to a handwriting expert named “Wilson.” In reality, he had no spies; he never received any M & Odocuments; the documents he identified do not exist; and the handwriting expert he identified does not exist. (Tr. 19, 23-24, 28-29, 34-35, 54, 56-57, 60, 62, 77; Answer, p. 6-8. Par. 7-9; p. 11-12, par. 17-18; Adm. Ex. 5, p. 4; Adm. Ex. 7, p. 1; Resp. Ex. 1, p. 3-4). Consequently, by knowingly sending his client billing invoices listing hours of work that he had not performed, for the purpose of receiving payment for those hours, the Respondent engaged in dishonest and deceitful conduct, and breached his fiduciary duties to his client.
Also in Count II, the Respondent was charged with “obtaining an unreasonable fee.” (Complaint, p. 6, par. 19(b)). The Respondent denied this charge. (Tr. 76-77) Although the Respondent sought to obtain a fee for purported work relating to an investigation ofM & O, which did not occur, we do not believe there is clear and convincing evidence that he actually obtained a fee for work relating to that investigation.
As noted above, the evidence showed that the Respondent sent Nancy Steinbeck three billing statements requesting fees for work relating to the non-existent investigation ofM & O. (Adm. Ex. 5, p. 1, 2, 2a) The billing invoice of April 20, 2003, charged $125 per hour for 6.2 hours of work on an investigation of M & O, for a fee of $775. The same invoice also charged $175 per hour for 4.7 hours of work on the “integration” of the investigation results, for a fee of $822.50. In light of the fact that there was no investigation of M & O, the Respondent improperly charged Nancy $1,597.50 on the invoice of April 20, 2003. (Adm. Ex. 5, p. 1) However, on the same invoice, he billed a total of $8,235,23 for fees, which included $6,637.37 for other work performed for Nancy. This invoice also showed $4,885.39 due from previous invoices. (Adm. Ex. 5, p. 1)
Nancy Steinbeck testified that she made three payments to the Respondent. (Tr. 38; Adm. Ex. 9) Her first payment, of $312, was made in November 2002 (Adm. Ex. 9, p. 1), which was before the Respondent sought to obtain improper fees on his invoice of April 20, 2003. Thus, the payment of $312 in November 2002 was unrelated to the fabricated investigation. Also, Nancy made no other payment to the Respondent until after July 16, 2003. (Adm. Ex. 9)
On July 16, 2003, the Respondent sent another billing invoice. (Adm. Ex. 5, p. 2) On this invoice, he charged $125 per hour for 10.4 hours of work on an investigation of M & O, for a fee of $1,300. The same invoice also charged $175 per hour for 6.1 hours of work for the “integration” of the investigation results, for a fee of $1,067.50. Thus, the total amount of improper fees for which the Respondent billed on the invoice of July 16, 2003, was $2,367.50. However, on the same invoice, he billed $7,360.23 for other work performed for Nancy. This invoice, as did the invoice of April 20, showed that Nancy still owed him $4,855.30 from invoices prior to April 20, 2003. (Adm. Ex. 5, p. 1 and 2)
In summary, the Respondent’s billing invoice of July 16, 2003, showed that Nancy Steinbeck owed him current fees in the amount of $9,727.73, plus unpaid fees (from prior to April 20, 2003) of $4,885.39, for a total of $14, 613.12. Only $2,367.50 of the total amount was related to the non-existent investigation of M & O. Thus, when the improper fees are deducted, Nancy still owed the Respondent $12,245.62. (Adm. Ex. 5, p.2)
On the billing invoice of July 16, 2003, the Respondent also set out a “proposed payment schedule” for Nancy to pay him $5,413.12 immediately, and then to make two payments of $4,600. (Adm. Ex. 5, p. 2) On July 17, 2003, Nancy paid the Respondent $5,413.12 (Adm. Ex. 9, p. 3; Tr. 38), as the Respondent had proposed. Following the foregoing payment, Nancy still owed the Respondent $6.832.50 for fees unrelated to fabricated investigation of M & O. Nancy then made one additional payment to the Respondent, and that payment, on September 30, 2003, was in the amount of $5,000. (Adm. Ex. 9, p. 2) The $5,000 was less than the amount Nancy still owed the Respondent for work unrelated to the M & O investigation.
Consequently, Nancy Steinbeck paid the Respondent $312 before she was billed for any work that the Respondent had not performed. (Adm. Ex. 5, p. 1; Adm. Ex. 9, p. 1) She also paid him an additional $10,413.12 (Adm. Ex. 9, p. 2, 3), which was less than the $12,245.62 the Respondent had billed for work unrelated to the non-existent investigation of M & O. (Adm. Ex. 5, p. 1, 2; Tr. 77) There was no proof that any of the work for which the Respondent billed Nancy Steinbeck, other than that related to the investigation of M & O, was not performed. Thus, the evidence failed to establish that the Respondent obtained any payment for work he had not performed.
Finally, we note that the evidence showed the Respondent did perform services on behalf of Nancy Steinbeck. For example, he filed a complaint against Mr. Winick and Mr. Pinkus with the Association of Authors Representatives (AAR) and prepared correspondence relating thereto (Tr. 39; Resp. Ex. 1, p. 3; Adm. Ex. 13, p. 2, 10, 13); he reviewed copyright regulations and prepared documents on behalf of Nancy (Tr. 73; Adm. Ex. 13, p. 3); he reviewed documents relating to royalties claimed by Nancy (Adm. Ex. 13, p. 11); he participated in a settlement conference in the probate proceeding where a general agreement was reached (Tr. 72); and, over “several months,” he helped to work out specific language for the settlement agreement (Tr. 72; Adm. Ex. 13, p. 9).
Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in paragraph 19 (a), (c), and (d) of Count II: breached his fiduciary duties to a client; engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. We also find that the charge of “obtaining” an unreasonable fee, in paragraph 19(b) of Count II, was not proved.
RECOMMENDATION
The purpose of the attorney disciplinary system is not to punish an attorney for misconduct, but rather “to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach.” In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981 (2006). In determining the sanction to recommend, the Hearing Board Panel is to consider the seriousness of the misconduct, any aggravating and mitigating circumstances shown by the evidence, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. See In re Gorecki, 208 Ill.2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). Although each disciplinary case “is unique and must be resolved in light of its own facts and circumstances,” the sanction imposed should be “consistent with those imposed in other cases involving comparable misconduct.” In re Howard, 188 Ill.2d 423, 440, 721 N.E.2d 1126, 1135; In re Chandler, 161 Ill.2d 459, 472, 641 N.E.2d 473, 479 (1994).
In this case, the Administrator requested the sanction of suspension from the practice of law for one year and until further order of the Court. (Tr. 125, 129) In support thereof, the Administrator cited the following cases: In re Bourgeois, 25 Ill. 2d 47, 182 N.E.2d 651 (1962); In re Hogan, 93 CH 234, M.R. 9161 (September 27, 1993); and In re Sutherin, 03 CH 646, M.R. 20636 (September 20, 2006). (Tr. 126-27). The Respondent requested a suspension of one year, stayed in its entirety for a two-year period of probation (Tr. 132), and cited the following cases: In re Olton, 05 SH 27 (Hearing Board Report); In re Aulston, 98 CH 101, M.R. 19331 (May 24, 2002); In re Forsberg, 02 CH 111, M.R. 19331 (May 17, 2004); In re Hubbard, 04 CH 135, M.R. 20917 (September 20, 2006); and In re Spak, 188 Ill. 2d 53, 719 N.E.2d 747 (1999). (Tr. 130-31)
The misconduct of the Respondent consisted of knowingly and repeatedly making false statements to his client, and breaching his fiduciary duties by attempting to obtain fees for work that he had not performed. Clearly, the Respondent’s misconduct demonstrated a lack of honesty and integrity.
An attorney is required to possess “good moral character,” and “honesty” is an “important element” of good moral character. In re Polito, 132 Ill. 2d 294, 303, 547 N.E.2d 465, 469 (1989); In re Glenville, 139 Ill. 2d 242, 255, 565 N.E.2d 623, 629 (1990). The Supreme Court has stated that “purposeful misrepresentations” are “contrary to honesty intrinsic in a lawyer’s oath of office” (In re Crisel, 101 Ill. 2d 332, 243, 461 N.E.2d 994, 998 (1984)), and that any conduct showing “a want of personal honesty or integrity” is “reprehensible” and demonstrates an “unfitness to practice law” (In re Chandler, 161 Ill. 2d 459, 473, 641 N.E.2d 473, 479-80 (1994); In re Vavrik, 117 Ill. 2d 408, 412-13, 415, 512 N.E.2d 1226, 1228-29 (1987)). Thus, the Respondent’s misconduct was very serious.
There is also aggravation in this case. The Respondent’s misconduct did not arise from a single incident or involve a brief lapse of sound judgment. Rather, the Respondent made numerous false statements to his client over an approximately two-year period. For example, he knowingly and falsely told Nancy Steinbeck: he had filed a complaint against two attorneys with the New York disciplinary authorities; the New York disciplinary authorities were conducting an investigation of the attorneys and were gathering evidence helpful to Nancy; he was exchanging information with the New York disciplinary authorities; he could not discuss his communications with the New York disciplinary authorities because they were “confidential;” he was conducting an investigation into the New York literary agent McIntosh and Otis (M & O); he had a “spy” going through the files at the office of M & O; he obtained certain documents favorable to Nancy from M & O; he could not give Nancy a copy of the documents because he had sent them to a handwriting expert; and he sent Nancy billing invoices stating that he had worked numerous hours related to the investigation of M & O. In fact, the Respondent filed no complaint with the New York disciplinary authorities; there was no disciplinary investigation; he had not exchanged paper work with the New York disciplinary authorities; he had no spy at M & O; he had received no documents from M & O; he sent no documents to a handwriting expert; and neither the documents he claimed to have received nor the handwriting expert he named even existed.
Moreover, the Respondent’s misrepresentations continued during the investigation by the Administrator. At a sworn statement to the ARDC in February 2006, the Respondent falsely claimed that he had received certain documents from M & O; that he was having the documents examined by a handwriting expert; that the handwriting expert was “Walter Wilson;” that Wilson had moved to Florida; and that he had inadvertently forgot to bring the above documents to the sworn statement. (Tr. 53-56) However, the Respondent knew that the documents and the handwriting expert named Walter Wilson did not exist. (Tr. 56-57) Even after the Respondent finally admitted in his Answer, filed on July 19, 2006, that neither the documents nor the expert existed (Tr. 57), he still claimed, in his response to the Administrator’s request to produce, that he was searching his files for correspondence and documents exchanged between him and the handwriting expert. (Adm. Ex. 12, p. 3, 8, 10; Tr. 58-62, 102)
It should be apparent to every attorney practicing in Illinois that he or she “has an obligation to cooperate with [the Supreme] Court and its agency, the Attorney Registration and Disciplinary Commission, in the performance of its duty to police the legal profession in this state.” In re Zisook, 88 Ill. 2d 321, 331, 430 N.E.2d 1037, 1041 (1981) Furthermore, the Supreme Court has indicated that providing false information in a “sworn statement to the Administrator” demonstrates the “unfitness of an attorney to practice law.” In re Bell, 147 Ill. 2d 15, 39, 588 N.E.2d 1093, 1104 (1992).
There is also mitigation in this case. The Respondent has been licensed to practice law since 1995 and has no prior discipline. (Tr. 133) He acknowledged he committed the misconduct charged in Count I. (Tr. 76, 129) He admitted that he “improperly deceived the client concerning a number of matters” and that his misrepresentations are “not acceptable under the rules of professional conduct.” (Tr. 63, 69) It was stipulated that Nancy Steinbeck’s current attorney would testify that the Respondent’s misconduct did not cause her to lose any claim against M & O or its employees. (Resp. Ex. 2) As discussed below, the Respondent’s misconduct was related to his mental health condition. (Tr. 69, 103)
It is also mitigating that the Respondent self-reported misconduct in February 2004, which was before his client indicated to him that she would file a disciplinary complaint against him. (Tr. 35-36, 70, 78) However, the weight of this factor is diminished because, in his letter to the Administrator reporting his misconduct (Resp. Ex. 1), he sought to lessen his culpability by making vague, ambiguous, and misleading statements. (Tr. 95) For example, he referred to his false statements to Nancy Steinbeck as “apparent misrepresentations.” (Resp. Ex. 1, p.1) He said “[s]o far as I have been able to determine the misrepresentations were not made with the intent to deceive or to harm client interests.” (Resp. Ex. 1, p. 1) He suggested that he had prepared a complaint to file with New York disciplinary authorities, and said “[m]y files do not reflect any proof that the complaint was actually filed.” (Resp. Ex. 1, p. 3) He also stated “I appear to have represented to Nancy that I had obtained documents that tended to demonstrate bad faith [by M &O]” and a “significant majority of those documents do not appear to have been received here.” (Resp. Ex. 1, p. 3) As discussed above, the Respondent knew he had not filed a complaint in New York, knew he had not received any documents from M & O, and, nevertheless, he told Nancy Steinbeck he had filed such a complaint and had received such documents. (Tr. 51-52, 56-57, 60, 62)
In addition to the above, Dr. Lawrence L. Jeckel, a psychiatrist, evaluated the Respondent, prepared a written report (Adm. Ex. 11), and testified about his findings and recommendations. Dr. Jeckel diagnosed the Respondent with a “Mixed Personality Disorder,” which is an enduring, usually life-long, pattern of maladaptive thinking and behavior that “significantly impairs one’s life.” (Adm. Ex. 11, p. 10-11; Tr. 93-94) Additionally, he diagnosed the Respondent with a “Dysthymic Disorder,” which is chronic depression, and with a “Major Depressive Disorder.” (Adm. Ex. p. 10-11; Tr. 93) Dr. Jeckel said that the personality disorder is the Respondent’s “primary problem.” (Tr. 94)
Dr. Jeckel voiced the opinion that the Respondent’s psychological conditions affect his ability to practice law (Tr. 93), and that his misconduct was related to his mental problems (Tr. 103, 105). He voiced the further opinion that the Respondent “is not fit to practice law.” (Tr. 94, 104; Adm. Ex. 11, p. 12)
The Respondent is apparently taking medications, Wellbutrin and Flexeril, prescribed by Dr. Luke Yang, and is attending sessions with Harry Vandervelde, MSW, a counselor at the Mental Health Center of Champaign County. (Adm. Ex. 11, p. 6-7, 9) However, Dr. Jeckel stated that the Respondent has not yet addressed any of his mental issues in therapy. Mr. Vandervelde is not providing “real therapy” for the Respondent, but is “mostly a sounding board for Mr. Petit.” (Tr. 97-98)
Finally, Dr. Jeckel recommended that, in order for the Respondent to be mentally fit to practice law, he should be evaluated “for at least six months to a year” by a psychiatrist or psychologist who works with personality disorders. The Respondent could obtain “beginning therapy” during the period of the evaluation. After there is a better understanding of the “extent of [his] problems” an appropriate course of treatment could be implemented. (Tr. 110-13: Adm. Ex. 11, p. 12-13)
In light of Dr. Jeckel’s expert opinions, which we found very knowledgeable and credible, and our own observations of the Respondent during his testimony, we find that the Respondent is currently unfit to practice law, that his mental or psychological problems have not been sufficiently addressed or treated, and that he poses a threat to the public and the integrity of the legal profession.
As noted above, the Respondent requested that we recommend a term of probation for him. We do not believe probation is appropriate in this case. Supreme Court Rule 772(a) provides that an attorney may be placed on probation if the attorney “has demonstrated” that he: “(1) can perform legal services and the continued practice of law will not cause the courts or the profession to fall into disrepute; (2) is unlikely to harm the public during the period of rehabilitation . . . ; [and] (3) has a disability which is temporary or minor and does not require treatment and transfer to disability status . . . .”
The Respondent has not demonstrated that he meets any of the above requirements, and, in fact, the evidence showed the contrary. Thus, probation is not appropriate. See In re Sutherin, 03 CH 61, Review Board Report at 13-16 (Petition to file exceptions to the Review Board Report denied in M.R. 20636, September 20, 2006); In re Handy, 03 SH 118, Hearing Board Report at 44-45 (Hearing Board Report approved in M.R. 19825, January 14, 2005).
We also note that the evidence in this case would support a finding that the Respondent is incapacitated from continuing to practice because of a mental disorder, warranting a transfer to disability inactive status. However, pursuant to Supreme Court Rule 758(a), only the Inquiry Board can initiate the filing of a petition to transfer to disability inactive status. (Tr. 127-28) We suggest that the Administrator consider seeking a revision to Rule 758 so that the disposition by the Hearing Board in matters like this could include a recommendation for transfer to disability inactive status.
The cases cited by the Respondent do not support probation in this case. The Supreme Court has granted probation when an attorney has obtained appropriate treatment for his or her mental disorder, addiction, or other impairment that was related to the misconduct and there is evidence that the attorney is fit to practice law while undergoing the course of treatment. See In re Ackermann, 99 Ill. 2d 56, 67-69, 457 N.E.2d 409, 413-14 (1983); In re Harrison, 02 SH 84, Hearing Board Report at 44-45, 47 (Hearing Board Report approved in M.R. 19281, March 15, 2004). Three of the cases cited by the Respondent are classic examples of the above situation. In In re Aulston, 98 CH 101, M.R. 18122 (May 24, 2002), the attorney’s misconduct was related to his depression, he was receiving treatment, and his doctor said “with continued treatment and medication, [the attorney’s] condition should not interfere with his ability to practice law.” (Review Board Report at 5, 12) In In re Forsberg, 02 CH 111, M.R. 19331 (May 17, 2004), the attorney’s “depression and anxiety” contributed to her misconduct, she “sought and continues to receive treatment for those conditions,” and according to a psychiatrist, “her anxiety and depression are much improved.” (Petition to impose discipline on consent, p. 1, 5-6, 9) Finally, in In re Hubbard, 04 CH 135, M.R. 20917 (September 20, 2006), the attorney was “suffering from mental health and [alcohol] abuse conditions” at the time of her misconduct (a DUI and failure to report the conviction to the ARDC), she had maintained sobriety for about 16 months, she was taking anti-depressant medication and otherwise participating in psychotherapy, and “she appears to be in solid recovery.” (Petition to impose discipline on consent, p. 1, 4) Unlike the foregoing cases, the Respondent in this case has not received and is not receiving necessary treatment for his mental conditions, which were related to his misconduct, and he is simply not fit to practice law at this time. (Tr. 93-94, 102-05, 110-11; Adm. Ex. 11, p. 12-13)
The Respondent also cited the Hearing Board Report in In re Olton, 05 SH 27 (April 28, 2006), in which there was a recommendation of suspension, stayed by a period of probation. (Tr. 130) We note that subsequent to the hearing in this case, the Review Board issued a report in the Olton matter, on February 14, 2007. The Review Board concluded that probation was not appropriate, and recommended a suspension for 60 days. In any event, unlike in this case, the attorney in Olton did not have any mental problems or addiction impairments that adversely affected her ability to practice law. (Olton, Hearing Board Report at 34-35; Review Board Report at 16-17).
Lastly, the Respondent cited In re Spak, 188 Ill. 2d 53, 719 N.E.2d 747 (1999), in which the sanction of censure was imposed. However, the misconduct in Spack did not involve dishonesty. The Court stated “we find no reason to disagree with the Hearing Board’s finding that respondent’s actions . . . did not involve a dishonest or fraudulent motive.” Also, when considering the appropriate sanction, the Court stated “[w]e rely most heavily upon the Hearing Board’s finding that respondent did not act with any fraudulent intent.” (Spak, 188 Ill. 2d at 66, 69, 719 N.E.2d at 754, 755). The Respondent’s misconduct in this case included numerous false statements to his client, plus additional false statements to the ARDC, and is much more egregious than in Spak.
We believe that based upon the nature of the Respondent’s misconduct, in light of the aggravating and mitigating factors, a sanction of suspension is appropriate in this case. The cases discussed below support a suspension for the Respondent.
How a Wolf pretends to be a Sheep:
