Bar Matter Remanded

The Illinois Review Board has remanded a matter to allow the Respondent to submit evoidence and testify

The Administrator brought a twelve-count disciplinary Complaint against Respondent, charging him with making false statements to a tribunal; engaging in the unauthorized practice of law; failing to respond to the Administrator’s request for information; and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rules 3.3(a)(1), 5.5(a), 8.1(b), and 8.4(c) of the Illinois Rules of Professional Conduct (2010). The Complaint alleged that (1) Respondent made false statements to the Immigration Service in Appearance Forms that he filed in eleven immigration cases; (2) he engaged in dishonest conduct by making those false statements; (3) he engaged in the unauthorized practice of law by representing those immigration clients in front of the Immigration Service at a time when he was prohibited from doing so; and (4) he failed to provide requested information to the Administrator.

The Hearing Board found that Respondent had committed the charged misconduct and recommended that Respondent be disbarred.

Respondent filed an appeal in which he argued that the Chair erred in making certain rulings; that Respondent’s due process rights were violated; that the Hearing Board erred in finding Respondent engaged in the charged misconduct; and that he should not be disbarred. The Administrator asked the Review Board to affirm the Hearing Board’s rulings and factual findings, and to recommend that Respondent be disbarred.

The Review Board recommended that this case be remanded for a new hearing so that Respondent can testify and present evidence, in order to develop a more complete record. Given the recommendation for a remand, the Review Board did not address the other issues raised on appeal.

Respondent had asserted a Fifth Amendment claim that led to sanctions

As set forth above, in July 2023, Respondent filed a Motion requesting that the date of the hearing be reset so he could testify at a deposition, and requesting that the sanction be vacated. In his Motion, Respondent stated that he would voluntarily waive the Fifth Amendment and that he would testify at a deposition. That Motion was denied.

The review board found the denial in error

The Administrator had tried, unsuccessfully, to obtain Respondent’s testimony during depositions in May and June 2023. Granting Respondent’s Motion would have allowed the Administrator to obtain the deposition testimony that the Administrator had been trying to obtain.

Granting the motion would have also allowed Respondent to comply with the June 1st order, which was issued in order to compel Respondent to provide deposition testimony. The order directed Respondent to “answer any deposition question posed to him that relates to the allegations of the Administrator’s Complaint.” (Order, C.564.) According to Respondent’s Motion, he was willing to answer deposition questions, as required by the June 1st order.

Granting the Motion would have also allowed for a full hearing on the merits of the case. In his Answer to the Complaint, Respondent denied any wrongdoing. Respondent’s testimony, at a deposition and at the hearing, could have helped clarify the basis of his denials, and given him the opportunity to explain his conduct and present a defense.

Granting the Motion would have also helped to develop the record concerning mitigating and aggravating factors. The record as it stands provides very limited information from which to assess whether or not Respondent is willing and able to comply with the Rules of Professional Conduct; whether Respondent accepts responsibility; whether he understands the seriousness of the misconduct; and whether he is likely to engage in misconduct in the future.

Rare relief

We do not condone or excuse Respondent’s violation of the June 1st order; his delay in deciding to waive the Fifth Amendment; his last minute filing of the Motion; his failure to file an affidavit with the Motion; and his failure to provide an offer of proof; nor do we approve of Respondent’s making baseless allegations of improper conduct by the Administrator’s counsel. Nevertheless, we are convinced that a remand is needed here to make a more complete record, particularly given the high stakes involved.

We note that Respondent has been placed on an interim suspension. Because of that, a remand does not present a risk to the public, since Respondent will not be able to practice law while the remand takes place. In recommending a remand, we have taken into consideration the fact that Respondent will not be practicing law because of the interim suspension.

Thus, based on the unique facts and circumstances of this case, we conclude that the denial of Respondent’s Motion was an error, and the case should be remanded in order to develop the record. We want to emphasize that, in our view, this case provides a very narrow precedent, limited to cases in which a respondent, who is facing disbarment and has a criminal case pending, is sanctioned for violating an order by refusing to testify based on the Fifth Amendment, and subsequently agrees to testify, but is then denied the opportunity to do so.

Fresh eyes, fresh start

Given the difficult nature of the first proceeding, we believe that it would be appropriate to remand the case to a different Panel. To be clear, we do not suggest that the members of the Panel were biased in any way, or that they allowed any frustration that they may have experienced to influence their decisions, or that they would do so in the future. However, we believe the best course of action is for a different Panel to preside over the proceedings on remand, which will provide a fresh start to everyone in the case.

(Mike Frisch)