Fit Enough

One difficult issue in assessing an appropriate sanction for ethics violations is the extent to which predictive inferences can be drawn from the quality and content of the accused attorney ‘s self-defense.

An Illinois Hearing Board got it wrong, according to the Illinois Review Board

We note, at the outset, that we believe the Hearing Board improperly considered Respondent’s mental health in support of imposing a suspension until further order. It stated that, “[i]n determining the need for a suspension until further order of Court, we also consider the Respondent’s testimony regarding her physical and her mental or emotional health.” (Hearing Bd. Report at 26). It found her testimony insufficient to determine whether her misconduct or conduct during her disciplinary proceedings was related to her physical or mental health conditions, but it nonetheless found that her physical and mental health should be evaluated before she practices law in the future. (Id.)

We find nothing in the record to support the Hearing Board’s conclusion that Respondent’s mental or physical health is at issue in this matter and should be evaluated before she resumes law practice. Other than her own testimony, there was no evidence presented by either party regarding Respondent’s mental or physical health. No expert testified regarding her fitness, or lack thereof, to practice law, and Respondent did not express any concern about her current fitness to practice law.

Rather, Respondent stated that she underwent treatment for cancer from July 2014 through March 2015, and it affected her ability to keep up with her caseload during that time period. (Report of Proceedings at 29). Also, in addressing why she did not respond to the Administrator’s multiple requests for information, Respondent stated that she found the disciplinary process to be “extremely difficult,” and that, when she has “a client that feels unrepresented or non-represented, it is very difficult for [her] to process and respond to it,” and she finds it “overwhelming.” She stated that she found the allegations against her “upsetting personally,” which she said was not an excuse for not responding but was her explanation for not responding to the Administrator. Id. at 28.

Respondent’s testimony does not establish that Respondent has a mental or physical condition that might impact her ability to practice law, or that her misconduct was caused by or related to a mental or physical condition. Moreover, it seems inherently inconsistent for the Hearing Board to find that the evidence was insufficient to determine if Respondent’s misconduct or conduct during her disciplinary proceedings was related to her mental or physical condition, but then to recommend a suspension until further order based, in part, on her mental or physical health.

 As to her participation in the proceedings

The Hearing Board found that [an attorney in an earlier disciplinary case]’s conduct “exceed[ed] the bounds of mere neglect and demonstrated a pattern of willful misrepresentation and deceit.” Bonner, 93 CH 442 (Hearing Bd. at 11). In describing the respondent’s egregious misconduct, the Hearing Board likened the matter to Houdek and Levinson, where the Court imposed suspensions until further order where there was a lack of restitution and lack of any evidence that the respondent was willing or able to meet professional standards of conduct in the future. It found that, “absent any explanation for his misconduct and absent restitution to the clients who have been deprived of their money,” a suspension until further order was appropriate. Id. at 12-13.

At oral argument in this matter, counsel for the Administrator argued that the present matter is particularly analogous to Bonner. We firmly disagree. In Bonner, the respondent participated in one pre-hearing conference, but otherwise completely ignored the Administrator’s requests for information and failed to participate in his disciplinary proceedings, and did not even appear for his disciplinary hearing. Here, in contrast, Respondent did not answer the complaint or file a motion that the Hearing Board permitted her to file, but otherwise participated in her disciplinary proceedings, including appearing for and participating in her disciplinary hearing as well as fully briefing her appeal and participating in oral argument before this Board.

Thus no fitness requirement, as proposed by the Hearing Board

That said, like the Hearing Board, we are concerned that Respondent had not yet established a client trust account at the time of her hearing, and we agree that the fact that Respondent has practiced for more than 30 years without a client trust account indicates that she did not fully understand the requirements of Rule 1.15. She claims to have opened a client trust account since her hearing, but that information is not a matter of record. We believe that Respondent should be required to show that she has corrected the shortcomings that led to her misconduct. We also believe that she would benefit from a period of monitoring to ensure that she fully meets her professional obligations.

Accordingly, we recommend that Respondent be suspended, but that the suspension be stayed in part by a period of probation, with conditions. See Smith, 168 Ill.2d at 297 (affirming the Hearing and Review Boards’ recommendations of probation and stating that suspension “combined with the successful completion of the strict probationary conditions will both safeguard the public and the administration of justice, as well as give respondent the opportunity to reform and improve the case management skills necessary to continue his law practice”).

…we find that a suspension of one year, stayed after six months by a one-year period of probation, with conditions, is commensurate with Respondent’s misconduct, falls within the range of discipline that has been imposed for comparable misconduct, and is sufficient to serve the goals of attorney discipline.

(Mike Frisch)