Alcohol And Obstructionist Behavior Draw Suspension Recommendation

An Illinois Hearing Board proposes a two-year suspension of an attorney who was intoxicated both on the highway and in court.

His third DUI was in 2013

Sgt. Todd observed Respondent’s car, parked in the parking lot, and Respondent standing and speaking with two police officers. Sgt. Todd observed that Respondent was having trouble standing and had urinated in his pants. Sgt. Todd testified that, in response to his questions, Respondent stated he had six to eight alcoholic drinks, between 4:00 and 6:00 p.m., and had driven to the Five Star Pantry thereafter. (Tr. 39-43).

As they were speaking, Sgt. Todd observed that Respondent had a strong odor of alcohol, his speech was very slurred and his eyes were watery, glazed and bloodshot. Sgt. Todd also noted that Respondent was having a very difficult time keeping his balance. (Tr. 43).

Sgt. Todd testified he asked Respondent if Respondent had any sort of illnesses and Respondent replied no. Sgt. Todd then asked Respondent to do some standard field sobriety tests, specifically, the Nystagmus Gaze test, the one-leg stand and the walking turn. Respondent agreed to take those tests. (Tr. 44).

Sgt. Todd explained that the Nystagmus test checks to determine the onset of nystagmus, an involuntary jerking of the eyeballs that is usually more prevalent the more a person has been drinking. (Tr. 44). The Nystagmus test suggested that Respondent’s blood alcohol level was “over .1.” (Tr. 45-46). Respondent was not able to keep his balance to effectively perform the one-leg stand or walk and turn tests. (Tr. 46-49, 115).

Sgt. Todd next asked Respondent if he had any physical ailments which would prevent him from doing a balance test. Sgt. Todd testified Respondent said no. Sgt. Todd did not recall Respondent stating that he had had a stroke or any conversation about medications Respondent was taking. (Tr. 46, 71-72, 115-16). Sgt. Todd also testified Respondent agreed to take a portable breath test, PBT, and the results of that test were .212. (Tr. 49, 61). Sgt. Todd arrested Respondent for DUI. (Tr. 62).

The attorney claimed in the bar case that he told the sergeant that he had suffered a stroke.

Then in August 2014

Respondent appeared in court in a civil matter in which he was representing himself. At the time of that court appearance, Respondent was intoxicated. Respondent was held in direct criminal contempt of court. Respondent engaged in a criminal act that reflects adversely on his fitness as a lawyer and in conduct prejudicial to the administration of justice.

Sanction

Respondent filed, five days before hearing, seeking to disqualify and/or sanction counsel for the Administrator. It is a significant aggravating factor where an attorney fails to take responsibility for his or her own misconduct and instead makes inappropriate and unsubstantiated charges of misconduct against the Administrator’s counsel and maligns the integrity of the disciplinary process. See In re Gray, 2016PR00045, M.R. 29543 (Nov. 15, 2018).

We also note that Respondent persisted in referring to items which were not in evidence in attempting to refute the reliability of his convictions and other persons. Respondent did this not only during the hearing, but also in his response to the Administrator’s report concerning prior discipline. With his response, Respondent submitted a CD, purportedly an audio recording of the hearing on August 29, 2014. This constituted another improper attempt to revisit the issues in the contempt proceeding. In addition, the CD was never introduced into evidence at the hearing. Our consideration of the issues is confined to the evidence of record. In re Pochopien, 08 CH 75, M.R. 24216 (Jan. 19, 2011). The Panel did not consider the CD.

Our conclusion that Respondent behaved in an obstructionist manner in these proceedings is not based on his assertion of the Fifth Amendment. We are aware of the case law concerning assertion of the Fifth Amendment in disciplinary proceedings. E.g. In re Zisook, 88 Ill. 2d 321, 330-32, 430 N.E.2d 1037 (1981); In re Ellis, 97 CH 63, M.R. 16744 (May 17, 2000). We have opted not to draw any adverse inference against Respondent based on his assertion of the Fifth Amendment and have not considered that assertion as a factor in aggravation.

For these reasons, we recommend that Respondent be suspended for two years and until further order of the Court.

(Mike Frisch)