Suspension, Not Disbarment, Proposed For Horrific Abuse Of Female Staff

July 24, 2015

The Illinois Review Board has filed its recommendation in a matter in which the attorney had abused his female staff and exposed himself to a neighbor and another passerby.

The Review Board, over a single dissent, proposes a 30 month suspension with reinstatement by court order.

While the Hearing Board did a painstaking and we believe correct analysis of case law to support its 30 month suspension, it appears to have paid little attention to the overriding issue of whether this particular Respondent is likely to reoffend. We believe that, in this case, “what is past is prologue”. Unless Respondent comes to grips with his problems and takes affirmative steps to understand and resolve them he is a very bad risk. We are also mindful that Respondent had done good work in his field of class action law and that the bulk of his misconduct occurred quite some time ago. For these reasons we think disbarment is not appropriate.

The conduct is set forth in graphic if summary detail in the report. Most of it took place in the 1999- 2003 period.

Why did it take until 2015 to get this far?

Some insight from the Hearing Board

Over the course of four and one-half years, the parties submitted and vigorously briefed numerous motions regarding the charges of the Complaint and procedures employed in bringing this matter to hearing.

Our coverage of the Hearing Board report is linked here.

The Review Board synopsis

The Administrator filed a seven count complaint against Respondent. Counts I, II, III, IV and VII alleged that Respondent engaged in misconduct with respect to five female employees of Respondent’s law firm and charged Respondent with engaging in criminal acts that reflect adversely on his fitness as a lawyer, namely assault and battery with respect to all five women, unlawful restraint with respect to three women, and telephone harassment with respect to three women. In Counts V and VI, Respondent was charged with engaging in the criminal acts of public indecency and disorderly conduct by exposing himself to a co-resident of his apartment building and to a woman walking on a public street.

The Hearing Board determined that the legal defenses asserted by Respondent were not a bar to any of the charges against Respondent. After assessing the credibility of the witnesses and reviewing the evidence, the Hearing Board found that Respondent engaged in misconduct with respect to four of his employees, his neighbor and the woman walking on a public street. The Hearing Board recommended that Respondent be suspended for thirty months.

Upon review, the Administrator asked that Respondent be disbarred. The Respondent argued the charges against him should be dismissed because the findings were against the manifest weight of the evidence; the requirements of 1990 Rule 8.4(a)(9)(B) were improperly circumvented; there could be no violations of 8.4(a)(3) because Respondent was not convicted; and that the use of information that was subject to expungement deprived him of due process.

The Review Board found Respondent’s arguments to be without merit. The Review Board concluded that the findings of the Hearing Board were not against the manifest weight of the evidence. The Review Board affirmed the findings of misconduct of the Hearing Board. In determining a sanction recommendation, the Review Board considered that Respondent had been previously disciplined for engaging in inappropriate sexual misconduct. After considering the precedent, the factors in mitigation and aggravation, and the likelihood that Respondent would reoffend, a majority of the Review Board recommended that Respondent be suspended for thirty months and until further order of the Court. One Review Board member dissented with respect to the sanction recommendation and recommended that Respondent be disbarred.

The Review Board rejected the contention that a criminal conviction is required to sanction the attorney’s violation of present Rule 8.4(c). At the time of the misconduct, the provision was found at Illinois Rule of Professional Conduct 8.4(a)(3).

On sanction

The Hearing Board concluded the Respondent’s conduct “resulted from his selfish motive of sexual gratification, there was a pattern of misconduct over time,” and he “took advantage of vulnerable employees who were young, self-supporting and dependent upon him for their livelihood”. Precedent, common sense, and regard for the public and the legal profession support a suspension of thirty months and until further order of the Court.

The Hearing Board correctly considered his prior discipline in aggravation. Factors in aggravation revealed that, in 1993, while 26 years old, Respondent attended a high school girls’ volleyball game where he first saw a 17 year old girl he did not previously know. In November and December of 1993, Respondent made at least six obscene telephone calls to the girl, resulting in his arrest in February 1994 and conviction in March 1994 for telephone harassment. In addition, between November 1993 and April 1994, Respondent made six to eight obscene phone calls to another woman, a fellow associate working with him at a Chicago law firm. From December of 1994 to January 1995, while on supervision for the telephone harassment conviction, Respondent made at least four obscene phone calls to a woman who had been a paralegal at the firm where he worked. During March 1993, again in the Fall of 1993, and in September 1994, Respondent made a number of obscene phone calls to yet another woman.

Richard Green in lonely dissent

While I agree with my colleagues with respect to their agreement that the findings of the Hearing Board are not against the manifest weight and their analysis of the applicable law, I must disagree as to the recommended sanction. Respondent engaged in similar conduct in the 1990’s, was disciplined and was to get treatment. Rather, he continued his bad behavior and in fact escalated it. Nothing in the record shows that he will not continue with the misconduct. Clearly this behavior leads the profession into disrepute. I would recommend that Respondent be disbarred.

Law360 had this story on more recent issues that he had faced in his class action lawyering and law firm breakup.

The ABA Journal reported on the Seventh Circuit opinion by Judge Posner in a class action for which the attorney was counsel.

The impropriety of allowing Saltzman to serve as class representative as long as his son-in-law was lead class counsel was palpable…Weiss may have been desperate to obtain a large attorney’s fee in this case before his financial roof fell in on him [due to impending bar discipline]…

The settlement should have been disapproved on multiple grounds. To begin with, it was improper for the lead class counsel to be the son-in-law of the lead class representative. Class representatives are, as we noted earlier, fiduciaries of the class members, and fiduciaries are not allowed to have conflicts of interest without the informed consent of their beneficiaries, which was not sought in this case. Only a tiny number of class members would have known about the family relationship between the lead class representative and the lead class counsel—a relationship that created a grave conflict of interest; for the larger the fee award to class counsel, the better off Saltzman’s daughter and sonin-law would be financially—and (which sharpened the conflict of interest) by a lot. They may well have had an acute need for an infusion of money, in light not only of Weiss’s ethical embroilment, which cannot help his practice, but also of the litigation against him by his former law partners and his need for money to finance his new firm. The appellees (primarily Saltzman, who is still a named plaintiff, and Pella) point out that Saltzman was one of five class representatives, and the other four didn’t have a conflict of interest. But the four other original class representatives had opposed the settlement, whereupon they had been replaced by new named plaintiffs—selected by the conflicted lead class counsel.