The Pivotal Role Of Honest Self-Reporting

The Illinois Review Board agreed with the hearing board that charges of conflict of interest had not been established but proposes a suspension for a false CLE certification

The charges in Count II stem from Respondent’s certification to the MCLE Board that he completed the required CLE hours for the reporting period ending June 30, 2016. Respondent submitted the certification on May 3, 2016, after receiving a reminder from the MCLE Board of the need to complete the requirement by June 30, 2016, and to report compliance by July 31, 2016. Respondent admitted he certified he completed 30 hours when he knew he had not done so. Although he believed he completed some hours, he had no documentation to show he had completed any hours. Respondent recognized that what he did was wrong, but denied he intended to deceive the MCLE Board.

Respondent testified that he was going through a difficult time when he made this misrepresentation due to the breakup of his law firm. He denied telling another lawyer at a real estate closing that he did not complete his CLE hours because no one ever checked. The matter came to the ARDC’s attention after both the ARDC and the MCLE Board received anonymous letters stating that Respondent had made such a statement.

Respondent completed all the required hours in November 2016, shortly after the ARDC initiated an investigation into the matter. His law firm now has an MCLE administrator who keeps track of the MCLE status of its attorneys.

The hearing board had favored a censure but the review board disagreed

We also note that Respondent did not make any attempt to fulfill the requirement until the Administrator initiated an investigation. As the Hearing Board found, he also provided incredible testimony that he did not intend to deceive the MCLE Board with the false certification. Based on these and the other factors noted above, we find Respondent’s misconduct in this case to be as serious as, if not more serious than, that of the attorney in Rickgauer.

We also find support for this recommendation in In re Diggs, 344 S.C. 397, 544 S.E.2d 628 (2001), which speaks to the seriousness of this type of misconduct. There, the South Carolina Supreme Court suspended an attorney for 90 days and required him to pay costs for submitting improper CLE compliance reports. The attorney initially submitted a report claiming credit for two seminars that had not yet been held, and later submitted an amended report claiming credit for a seminar he did not attend. The Court found that the attorney made false statements to a tribunal and engaged in dishonesty. In discussing the seriousness of the misconduct, the Court noted that the state’s CLE program operates on an honor system and that truthful reports are essential to its successful operation. It also noted that the CLE Commission does not check the accuracy of every attorney’s compliance report and only audits a small percent of those reports. Thus, in order for the CLE program to be successful and provide the state with competent and educated attorneys, attorneys in the state must complete the required number of CLE hours.

The MCLE program in Illinois has similar objectives and operates in a similar fashion. As stated in the Preamble to the MCLE Rules, “the public contemplates that attorneys will maintain certain standards of professional competence throughout their careers in the practice of law.” To that end, the Rules are “intended to assure that those attorneys licensed to practice law in Illinois remain current regarding the requisite knowledge and skills necessary to fulfill the professional responsibilities and obligations of their respective practices and thereby improve the standards of the profession in general.” Illinois Supreme Court Rules 790-797, Preamble.

Although Rule 796(f) provides for a reasonable number of audits under a plan approved by the Court, the MCLE Board does not check every attorney in the state for compliance. Thus, the effectiveness of the program necessarily relies upon an honor system where attorneys are expected to voluntarily comply and to honestly and accurately self-report their compliance to the MCLE Board. The failure of an attorney to fulfill the educational requirements, along with a false certification of compliance, defeats the objectives of the program and thereby poses a risk of public harm. As the Hearing Board noted, such conduct also shows a lack of respect for the Court, the MCLE Board, and all other attorneys in the state who fulfill their obligations and honestly report their compliance. For these reasons, we believe that meaningful sanctions for non-compliance and false certifications are necessary and appropriate to ensure compliance and deter false certifications.

We have considered the mitigating evidence and the Hearing Board’s view that Respondent is unlikely to repeat his behavior, but the nature and seriousness of the misconduct require, in our view, a more substantial sanction than censure. Thus, given all of the circumstances, we recommend that Respondent be suspended for three months. We believe this sanction will be sufficient to impress upon Respondent the seriousness of his misconduct. We cannot stress too strongly the pivotal role that honest self-reporting plays in the success of our continuing legal education system. Without it, the system falls apart, the public is endangered, and public confidence in the integrity of the legal profession diminishes. We believe the three-month suspension in this case addresses the seriousness of, and will serve as an important deterrent to, this type of misconduct.

(Mike Frisch)