142 Out Of 142
An attorney who had defaulted on bar charges before an Illinois Hearing Board but sought a lesser sanction from the Review Board should be suspended for six months and required to prove fitness for reinstatement per the Review Board report.
The Review Board rejected the Administrator’s call for a fixed sanction in such cases
The crucial point is that, in this matter as well as in Moriarty, Wisniewski, Maye, and every other default proceeding, the respondents failed to appear before the Hearing Board and therefore deprived the Hearing Board of an opportunity to see and hear them testify and assess whether they presented a risk to the public if allowed to practice law. Unlike the Hearing Board, this Board is an appellate body and does not take evidence or make findings of fact regarding an attorney’s fitness to practice law. Thus, when a respondent fails to appear before the Hearing Board but later appears before this Board, he still deprives the trier of fact of the ability to determine whether he is fit to practice law. That is why suspensions until further order were imposed in the foregoing cases, and that is why a suspension until further order is warranted here.
Indeed, as the Administrator has pointed out, of 142 disciplinary cases that were decided between January 1, 2009 and June 27, 2019 and designated as default proceedings, the Hearing Board recommended either disbarment or a suspension until further order in all 142 cases. In two of those cases, the respondent appealed to the Review Board, and the Review Board agreed with the Hearing Board’s recommendation in both cases. See In re Beal, 2010PR00088 (Review Bd., May 3, 2012), approved and confirmed, M.R. 25422 (Sept. 17, 2012) (suspension of two years and until further order for neglecting five cases and settling two cases without client approval); In re Coyle, 2015PR00041 (Review Bd., Feb. 16, 2017), petition for leave to file exceptions denied, M.R. 28670 (May 18, 2017) (disbarment for dishonest conversion of over $100,000). Respondent is therefore incorrect that his appearance before this Board distinguishes his case from all other default proceedings.
However, we reject the Administrator’s blanket assertion that this Board has no discretion to recommend a sanction other than disbarment or suspension until further order where a respondent has failed to participate in disciplinary proceedings before the Hearing Board. The Court has instructed us to consider the unique circumstances of each case in recommending a sanction, see Witt, 145 Ill. 2d at 398, and the Administrator’s suggested bright-line rule would deprive this Board of discretion to examine and weigh the particular circumstances of each case in recommending a sanction that achieves the purposes of attorney discipline. That said, we struggle to envision a set of circumstances that would lead us to recommend anything other than a suspension until further order or disbarment where, as here, the respondent wholly failed to participate in the proceedings against him or appear before the Hearing Board, and therefore prevented the Hearing Board from being able to determine his fitness to practice law.
Member Pinkston would impose a slightly lesser sanction
I concur with my colleagues that Respondent’s complete failure to participate in his disciplinary proceedings prior to filing exceptions with the Review Board warrants a suspension until further order. However, I believe his underlying misconduct was relatively minor, and that the most egregious aspect of it – his failure to participate in the disciplinary process – harmed only himself and not any client. Had he appeared for his hearing, it is hard to imagine that he would have been suspended for more than four months for his misconduct. See, e.g., In re Murray, 09 CH 36 (Hearing Bd., Nov. 8, 2010), approved and confirmed, M.R. 24330 (March 21, 2011) (suspension of three months and until further order where attorney neglected a matter and failed to respond to the Administrator’s requests for information after the client reported his conduct to the Administrator); In re Carr, 2017PR00096 (Hearing Bd., Sept. 10, 2018), approved and confirmed, M.R. 29562 (Jan. 29, 2019) (suspension of three months and until further order where attorney practiced law during a time when he was removed from the master roll of attorneys for failing to register, and failed to respond to the Administrator’s requests for information about the matter).
(Mike Frisch)