An Illinois site acquisition attorney had his license suspended after forging signatures of the director of information technologies of Monmouth and the school superintendent of Morton for two SBA Communications towers in Illinois
Update: May 21, 2019 – A representative of Lora, Chanthadouangsy, and Castellano (LCC) has informed Wireless Estimator that attorney Robert Czarnik who was suspended by the Illinois Attorney Registration and Disciplinary Commission (ARDC) for four months was terminated by LCC on October 16, 2014. They said that Czarnik was reported to the ARDC after LCC learned of his alleged misconduct and the company cooperated with all investigations.
An Illinois Attorney Registration and Disciplinary Commission (ARDC) review board on May 15, 2019, upheld a previous hearing board’s findings of dishonesty against Robert Ronald Czarnik, an attorney for the site acquisition law firm Lora, Chanthadouangsy, and Castellano (LCC), and suspended him for four months.
ARDC had previously brought a five-count complaint against Czarnik, charging him with, among other things, engaging in dishonest conduct by fabricating documents and sending them to clients.
Following a hearing, it was found that Czarnik had fabricated documents in two instances, but had not engaged in other charges of falsifying two building permits.
Czarnik was developing multiple sites for SBA Communications (SBA) in October 2014 and submitted applications for two sites to building departments on property in Pekin and Trivoli, but they were returned to him because of missing information.
He then asked his assistant, Eric Laugesen, who was not an attorney, to follow up and provide the additional information, according to the panel’s report below.
On Oct. 9, 2014, an SBA employee was emailed copies of the Pekin and Trivoli permits from Czarnik’s email address. However, it was later discovered that the permits were not valid.
A computer forensics expert determined that someone using Czarnik’s laptop and user profile sent the permits. Both Czarnik and Laugesen denied sending the documents and the hearing board felt that there wasn’t sufficient evidence for those two charges.
However, Czarnik was found by the hearing board to have provided SBA with forged entry and testing (E&T) agreements for two other cell tower sites in Monmouth and Morton on October 9 as well.
The Monmouth E&T that SBA executed had the name “Ken Helms” with the title “Director” and a signature for Helms as the property owner. It was later found that Ken Helms is the City of Monmouth’s Director of Information Technology who said he did not sign it.
The Morton E&T name block had “L Hall” and was signed “Lindsey Hall” with the title “Principal”.
However Hall was a school district superintendent and said he neither signed it nor had anyone sign the document for him.
Czarnik said he sent those agreements to SBA, but testified that he had no knowledge that they were forged since he had Laugesen handle getting the signed documents. Laugesen said although he worked on the sites, he didn’t get the E&Ts signed.
A forensic document examiner and handwriting expert, examined the signatures and printing on the purported E&T agreements, and compared that writing with known handwriting from Czarnik. She testified at hearing that it was highly probable that he had placed the signatures and printing on both agreements.
Filed May 15, 2019
In re Robert Ronald Czarnik
Respondent-Appellee/Cross-Appellant
Commission No. 2016PR00131
Synopsis of Review Board Report and Recommendation
(May 2019)
The Administrator brought a five-count complaint against Respondent, charging him with, among other things, engaging in dishonest conduct by fabricating documents and sending them to clients. The Hearing Board found that Respondent had fabricated documents in two instances, but had not engaged in the other charged misconduct. It recommended that Respondent be suspended for four months.
Both the Administrator and Respondent appealed. The Administrator asked the Review Board to reverse the Hearing Board’s findings of no dishonesty in two other instances, and to recommend a suspension of at least six months. Respondent asked the Review Board to reverse the Hearing Board’s findings of misconduct and dismiss the complaint against him, or, in the alternative, to recommend a suspension of between two and four months.
The Review Board affirmed the Hearing Board’s findings of dishonesty as well as its findings of no dishonesty, finding that they were sufficiently supported by evidence. The Review Board also agreed with the Hearing Board’s recommendation that Respondent be suspended for four months for his misconduct.
BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION
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In the Matter of:
ROBERT RONALD CZARNIK,
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Commission No. 2016PR00131 |
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
SUMMARY
The Administrator brought a five-count complaint against Respondent, charging him with, among other things, engaging in dishonest conduct by fabricating documents and sending them to clients. Following a hearing at which Respondent was represented by counsel, the Hearing Board found that Respondent had fabricated documents in two instances, but had not engaged in the other charged misconduct. For his misconduct, the Hearing Board recommended that Respondent be suspended for four months.
Both the Administrator and Respondent appealed. The Administrator asks this Board to reverse the Hearing Board’s findings that he failed to prove dishonesty in two other instances, and to recommend a suspension of at least six months. Respondent asks this Board to reverse the Hearing Board’s findings of dishonesty and dismiss the complaint against him, or, in the alternative, to recommend a suspension of between two and four months.
For the reasons that follow, we affirm all of the Hearing Board’s findings regarding misconduct, and agree with its recommendation that Respondent be suspended for four months.
FACTS
The facts involved in this matter are fully set forth in the Hearing Board’s report. As they are relatively extensive, they are summarized here to the extent necessary to address the parties’ appeals.
Respondent and His Work at LCC
Respondent was admitted to practice in Illinois in May 2012. In August 2012, he began working for the law firm of Lora, Chanthadouangsy, and Castellano (LCC). LCC represents businesses working in cellular telecommunications. Its practice was to hire new law school graduates with no experience and train them on the job, which typically consisted of working with another more experienced attorney for 90 days. Respondent’s training was much shorter, as the experienced attorney to whom he was assigned left the firm shortly after Respondent began. Thus, in September 2012, Respondent was made a project manager.
As project manager, Respondent was responsible for representing LCC clients in obtaining building permits, leases, entry and testing (“E&T”) agreements, and zoning approval for cellular telecommunications equipment. Respondent also was responsible for communicating with clients, obtaining their instructions, and assigning work to his team.
In the summer of 2014, Respondent’s workload increased dramatically. Among other things, work that had been divided between Respondent and another project manager was assigned entirely to Respondent when the other project manager left the firm. In addition, in September 2014, both of Respondent’s team members left, which left Respondent as the only person on his team for a short time and resulted in Respondent having difficulty meeting deadlines and completing work. Sometime before October 2014, Eric Laugesen, who was not an attorney, was assigned to Respondent’s team. Prior to being assigned to Respondent’s team, Laugesen had worked at LCC for two months as part of the zoning team, which assisted the entire firm in zoning matters. Thereafter, Respondent and Laugesen were the only two members of Respondent’s team.
Respondent’s Misconduct
Respondent was accused of engaging in dishonesty by fabricating two building permits and two E&T agreements. The Hearing Board found no dishonesty as to the two building permits, from which the Administrator appeals. It found dishonesty as to the two E&T agreements, from which Respondent appeals.1
Fabrication of the Pekin and Trivoli Building Permits
One of LCC’s clients, SBA Communications Corp. (SBA), was seeking to build cell phone towers on property in Pekin, Illinois and Trivoli, Illinois, which required permits from the respective counties. LCC assigned responsibility for obtaining those permits to Respondent, who delegated the task of applying for the permits to Laugesen. Laugesen prepared and submitted the applications with supporting documents. Both applications were returned because certain items were missing.
In both instances, Respondent knew the permit applications had been returned and that follow-up was required. He testified that he delegated responsibility for follow-up action to Laugesen; thought the outstanding information was submitted; and thought that LCC had received the permits. Laugesen, however, testified that it was Respondent and not he who was responsible for following up with and obtaining the missing information from the client.
On October 9, an SBA employee received two separate e-mails, ostensibly from Respondent, one with a document purporting to be a building permit issued to the client for the Pekin site, and one with a document purporting to be a building permit issued to the client for the Trivoli site. The attached building permits were not valid. A computer forensics expert determined that the documents were fabricated by someone using Respondent’s laptop and user profile, and e-mailed from Respondent’s laptop and e-mail account. Both Respondent and Laugesen denied creating and sending the permits.
Fabrication of Monmouth and Morton E&T agreements
SBA also retained LCC to obtain E&T agreements for potential cell phone towers in Monmouth, Illinois and Morton, Illinois. LCC assigned to Respondent the responsibility for obtaining the E&T agreements, which would allow SBA to test whether the sites would be suitable for its purpose before executing leases for the property.
Respondent testified that he delegated the task of getting the E&T agreements to Laugesen, and that he routinely had his team get signatures on E&T agreements and that Laugesen had done so before. He testified that he followed up with Laugesen and thought the agreements had been signed.
Laugesen testified that he recalled working on the Monmouth site but thought the work was limited to zoning matters and did not include an E&T agreement, but he was not certain. He testified that he did not believe he had been given any tasks with respect to the Morton E&T agreement but acknowledged that he might have been involved with that agreement.
On October 9, 2014, Respondent sent an e-mail to an SBA employee with a document that purported to be an E&T agreement for the Monmouth site, and which SBA executed on October 10. The name “Ken Helms,” with the title “Director,” was signed and printed in the place for the signature of the property owner. Ken Helms is the City of Monmouth’s Director of Information and Technology. He did not sign the document or authorize anyone else to sign it.
Also on October 9, 2014, Respondent communicated with SBA employees via e-mail and indicated that, the day prior, he had mailed a document that purported to be an E&T agreement for the Morton site, and which SBA executed on October 10. On that document, in the place for the property owner’s signature, the name “L. Hall” was signed with the name “Lindsey Hall” and the title “Principal” printed underneath. Lindsey Hall was a school district superintendent employed by the Morton school district on whose property the Morton site was located. Hall did not sign the document or authorize anyone else to sign it.
Diane Marsh, a forensic document examiner and handwriting expert, examined the signatures and printing on the purported E&T agreements, and compared that writing with known handwriting from Respondent. She testified at hearing that it was highly probable that Respondent had placed the signatures and printing on the purported Monmouth and Morton E&T agreements.
Respondent acknowledged sending the documents to SBA, but denied signing the documents or knowing that the signatures had been fabricated.
HEARING BOARD’S FINDINGS AND RECOMMENDATION
Misconduct Findings
Fabrication of the Pekin and Trivoli Building Permits
The Hearing Board found that the Administrator had not met his burden of proof with respect to the Pekin and Trivoli permits. It found that a computer forensic expert linked the preparation and transmission of the permits to Respondent’s laptop and user profile, but that the evidence did not clearly and convincingly establish that Respondent was the person using his laptop at the relevant time. Significantly, it accepted Respondent’s testimony that he had given his team access to his laptop and password; that he had left his laptop in his office on the morning in question; and that he was likely not in the office when the permit was created and the e-mail sent.
Noting that Laugesen was the only other person directly involved with the permits to testify, the Hearing Board rejected Laugesen’s testimony. It stated that it questioned the overall reliability of Laugesen’s testimony, noting that it identified inconsistencies in his testimony and that his testimony diverged from other credible evidence about matters that were largely uncontroverted, such as the firm’s workload and the impact of a partner’s illness. It thus found his recollection of critical events not to be sufficiently reliable to overcome Respondent’s contrary testimony.
The Hearing Board thus concluded that the Administrator had not proved that Respondent violated Rule 8.4(c) in connection with the building permits.
Fabrication of the Monmouth and Morton E&T Agreements
The Hearing Board found that the Administrator had proved that Respondent violated Rule 8.4(c) by knowingly affixing unauthorized signatures to the E&T agreements and sending them to the client. It noted that Helms and Hall did not sign the agreements or authorize anyone else to do so, and therefore that the only contested issue was whether Respondent had signed their names to the documents. It found Marsh’s testimony credible and her opinion “very well supported.” (Hearing Bd. Report at 33.) The Hearing Board thus accepted Marsh’s testimony despite Respondent’s denials. Based on Marsh’s testimony, her report, and its own review of the documents, it concluded that Respondent wrote the questioned names and signatures, and therefore that the Administrator had proved dishonesty.
Recommendation
The Hearing Board recommended that Respondent be suspended for four months. It noted that Respondent had engaged in serious misconduct by signing another person’s name to two separate documents knowing that he did not have the authority to do so. It found the intentionality of his conduct troubling, particularly since it had occurred twice.
However, it rejected the Administrator’s request for a more severe sanction, noting that it had not found all of the misconduct that was charged. It also noted some mitigating factors, including that Respondent had cooperated in his disciplinary proceedings and, particularly, that Respondent’s misconduct had occurred within an isolated and finite period of time (indeed, it occurred over a few days in October 2014). In aggravation, it considered testimony that SBA terminated LCC’s representation due to Respondent’s conduct, but did not give that factor much weight because it found that the evidence suggested that multiple factors beyond Respondent’s control contributed to the client’s dissatisfaction with LCC.
The Hearing Board found that, based on the evidence as a whole, Respondent’s overall demeanor, and favorable character testimony, Respondent’s “incidents of misconduct do not represent [his] usual behavior,” but were “a reaction, albeit a clearly inappropriate one, to a particularly difficult situation in which Respondent became overwhelmed and could not keep up.” (Hearing Bd. Report at 47.) It thus found that Respondent is not likely to engage in misconduct in the future, and that a four-month suspension would adequately serve the purposes of attorney discipline.
ANALYSIS
The Administrator challenges the Hearing Board’s findings that he failed to prove dishonesty in connection with the Pekin and Trivoli building permits, arguing that those findings are against the manifest weight of the evidence. Respondent challenges the Hearing Board’s findings that the Administrator proved dishonesty as to the Monmouth and Morton E&T agreements on the same basis.
In essence, the parties ask this Board to revisit the factual findings of the Hearing Board, in that they object to the Hearing Board’s determinations of credibility, findings regarding the reliability of an expert’s opinion, and other fact-finding judgments. Under our standard of review, however, the issue is not simply whether we disagree with the Hearing Board’s factual conclusions or might have reached a different conclusion if we had been the triers of fact. Rather, we defer to the factual findings of the Hearing Board, and will not disturb them unless they are against the manifest weight of the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993). A factual finding is against the manifest weight of the evidence where the opposite conclusion is clearly evident or the finding appears unreasonable, arbitrary, or not based on the evidence. Leonardi v. Loyola University, 168 Ill. 2d 83, 106, 658 N.E.2d 450 (1995); Bazydlo v. Volant, 164 Ill. 2d 207, 215, 647 N.E.2d 273 (1995). That the opposite conclusion is reasonable is not sufficient. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E. 2d 961 (2006).
Moreover, while we give deference to all of the Hearing Board’s factual determinations, we do so particularly to those concerning the credibility of witnesses, because the Hearing Board is able to observe the testimony of witnesses – which we are not – and therefore is in a superior position to assess their demeanor, judge their credibility, and evaluate conflicts in their testimony. In re Kleczek, 05 SH 24 (Review Bd., June 1, 2007), at 8, petitions for leave to file exceptions denied, M.R. 21745 (Sept. 18, 2007) (citing In re Spak, 188 Ill.2d 53, 66, 719 N.E.2d 747 (1999); In re Wigoda, 77 Ill.2d 154, 158, 395 N.E.2d 571 (1979)).
Based upon this standard of review, we affirm the Hearing Board’s finding of no misconduct with respect to the building permits, as well as its finding of dishonesty with respect to the E&T agreements, because we cannot find that the opposite conclusions are clearly evident, nor that the Hearing Board’s findings are unreasonable, arbitrary, or not based on the evidence. Rather, we believe the Hearing Board thoroughly considered and weighed all of the evidence that was presented to it, resolved conflicts in the testimony and made credibility determinations to which we defer, and based its findings of misconduct on evidence in the record. Even if we may have reached different conclusions were we the trier of fact, we find no basis for overturning its findings.
1. The Hearing Board did not err in finding the Administrator failed to prove dishonesty as to the Pekin and Trivoli permits
The crux of the Administrator’s argument on appeal is that the Hearing Board failed to reconcile its acceptance of Respondent’s testimony as to the building permits with its finding that he falsified signatures on the E&T agreements. The Administrator argues that, given Respondent’s false testimony about the E&T agreements, which the Hearing Board properly rejected, the Hearing Board also should have rejected his testimony that he did not falsify the Pekin and Trivoli building permits, which was either contradicted by other testimony or was objectively suspect.
In his briefs and at oral argument, the Administrator detailed the evidence that he contends should have caused the Hearing Board to reject Respondent’s testimony. Among other things, he notes the timing of various e-mails sent by Respondent on the morning of October 9, which he contends shows that Respondent was on his LCC laptop at the time the phony permits were created. He also argues that the close proximity in time between the creation and transmission of all four documents supports the conclusion that Respondent fabricated the building permits as well as the E&T agreements in an effort to convince SBA that he was meeting his obligations.
We agree with the Administrator that there is evidence in the record that would support a finding of dishonesty as to the building permits. However, because the Hearing Board reached the opposite finding, the question before us is not whether the record contains evidence that would support a finding of dishonesty. The question is whether the record contains evidence that supports the Hearing Board’s finding of no dishonesty. We believe it does.
In finding Respondent’s testimony to be credible and Laugesen’s testimony to be unreliable, the Hearing Board cited the factors and evidence that led to its credibility determinations. Aside from the obvious observation that the Hearing Board had an opportunity to see and hear the witnesses and therefore is in a better position than we are to make credibility findings, we note that the Hearing Board relied on other evidence to support its credibility findings.
The Hearing Board also found numerous gaps in the Administrator’s evidence that created doubt as to whether Respondent created and sent the false permits. In particular, it was concerned with what amounts to a classic chain of custody issue concerning Respondent’s laptop, pointing out that eight months passed between October 20, 2014, when LCC retrieved Respondent’s laptop, and June 2015, when the computer forensics expert received it; that LCC personnel including Laugesen had access to the laptop during that time; that no one testified about what had happened to the laptop during that time; and that Laugesen was one of LCC’s employees who collected and reviewed Respondent’s files and e-mails for the firm’s investigation against Respondent. Given all of the evidence relied upon by the Hearing Board, we cannot say that its findings were arbitrary, unreasonable, or not based on the evidence, nor that an opposite conclusion was clearly evident.
Recognizing that he is asking this Board to reverse a credibility finding, the Administrator analogizes this matter to In re Holzman, 2016PR00099 (Review Bd., Nov. 19, 2018), petitions for leave to file exceptions allowed but affirmed in relevant part, M.R. 29677 (March 19, 2019), in which this Board reversed the Hearing Board’s conclusion that the respondent had testified credibly that his client had allowed him to keep a bond refund.
In Holzman, the respondent was charged with deceiving a client about a bond refund by retaining all of the bond refund after telling the client he would return part of the bond refund to him; and with creating a false supplemental retainer agreement as to that client. The Hearing Board found that the respondent had engaged in dishonesty by fabricating the supplemental retainer agreement, but had not engaged in dishonesty as to the bond refund. It found credible the respondent’s testimony that the client had agreed to let him have the bond refund, and rejected the contrary testimony of the client and his mother. Id. at 10-11.
This Board affirmed the Hearing Board’s finding that the respondent had fabricated the supplemental retainer agreement, but reversed the Hearing Board’s finding of no misconduct as to the bond refund. This Board reasoned that the Hearing Board had given no reason whatsoever for its credibility findings and had failed to reconcile its finding that the respondent had testified credibly about the bond refund with its finding that he had fabricated the supplemental fee agreement. This Board also found that the Hearing Board erred in rejecting the testimony of the client and his mother, which was internally consistent and consistent with their behavior at the time of the events. Id. at 15-18.
The Administrator argues that the present matter presents a similar scenario. He contends that Respondent lied to the Hearing Board when he denied signing Ken Helms’ and Lindsey Hall’s names on the Monmouth and Morton E&T agreements. He points out that the fabricated Pekin and Trivoli permits were created on Respondent’s laptop, using his password, within days of the E&T agreements’ transmission. He contends that Respondent’s claim that other employees had and used his password was contradicted by the testimony of one of LCC’s founding partners as well as Laugesen, and that his testimony that he was not in the office at the time the documents were created was uncorroborated and highly suspect. He thus argues that Holzman supports reversing the Hearing Board’s findings that Respondent did not create and send the counterfeit Pekin and Trivoli permits.
The Administrator is correct that there are some similarities between Holzman and this matter. However, there are salient differences between the two cases that we believe require a different outcome in this matter.
First, in Holzman, the Review Board reversed the Hearing Board’s finding that the respondent testified credibly in part because the Hearing Board gave no basis whatsoever for its finding. In this matter, in contrast, the Hearing Board clearly articulated its reasoning, which was grounded in the evidence, for why it gave credence to Respondent’s testimony and rejected Laugesen’s contrary testimony.
Second, the most significant part of the Review Board’s reasoning in reversing the Hearing Board’s credibility finding was that the respondent’s ostensibly credible testimony included testimony about the fabricated supplemental retainer agreement as if it were authentic and as support for his claim to the bond refund. The Review Board reasoned:
. . . That finding is entirely at odds with its finding that Respondent fabricated the supplemental retainer agreement, which, in contrast, has firm support in the record. The Hearing Board made no attempt to reconcile these two findings. Notably, the Hearing Board did not address the fact that, during his direct examination, Respondent testified at length about the supplemental fee agreement as the primary support for his claim that Adams and Isom had agreed to turn over the entire bond refund to him.
Furthermore, not only did the Hearing Board make no attempt to reconcile its findings, but we fail to see any way in which it logically could do so. We believe it was inherently inconsistent for the Hearing Board to find that Respondent testified credibly about the revised fee agreement when his purportedly “credible” testimony included testimony about a document that the Hearing Board found was fabricated and fraudulently signed.
Id. at 16.
In this matter, in contrast, other than casting doubt on his credibility overall, Respondent’s testimony about the E&T agreements was largely unrelated to his testimony about the building permits. The fact that the E&T agreements and building permits were created somewhat contemporaneously certainly is suspect, but suspicion cannot substitute for or supplant proof. See Winthrop, 219 Ill. 2d at 550 (quoting In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989) (while circumstances may arouse suspicion, “?suspicious circumstances, standing alone, are not sufficient to warrant discipline'”).
Thus, we find Holzman sufficiently distinguishable from this matter such that it does not compel the same conclusion. The factors that led this Board to reverse the Hearing Board’s credibility finding in Holzman – no evidence whatsoever in support of the credibility finding and findings that were inherently and irreconcilably contradictory – are absent here.
It is apparent from the Hearing Board’s reasoning that it held the Administrator strictly to his burden of proof on the misconduct charges regarding the Pekin and Trivoli building permits, and attempted to silo those misconduct charges by not allowing its findings regarding the E&T agreements to spill over into its analysis of the building permits. We see no flaw in its analysis. Rather, we commend its adherence to the law regarding the Administrator’s burden of proof, which is a heavy one that requires a high level of certainty. In re Petti, 00 CH 28 (Review Bd., Aug. 28, 2002), at 4, approved and confirmed, M.R. 18446 (Jan. 23, 2003). It does not allow the Administrator to prove misconduct based upon suspicious circumstances but insufficient evidence simply because he presented adequate proof as to another charge. See id. (noting that record must be free from doubt and that the Administrator’s burden is not met merely by proof of suspicious circumstances) (citing In re Mitgang, 385 Ill. 311, 52 N.E.2d 807 (1944)).
Because it found shortcomings in the Administrator’s evidence regarding the building permits, and because it made credibility findings in favor of Respondent, the Hearing Board found that the Administrator had not met his burden of proof on the charges related to the building permits. In this sense, this matter is akin to In re Conrad, 2015PR00030 (Review Bd., Sept. 21, 2018), petition for leave to file exceptions denied, M.R. 29576 (Jan. 29, 2019), where, despite the existence of much evidence that could have supported a finding of misconduct, the Review Board deferred to the Hearing Board’s finding that the respondent testified credibly, and affirmed the Hearing Board’s finding of no misconduct.
As in Conrad, we defer to the Hearing Board’s findings of fact, and particularly to its findings regarding credibility. While the evidence might have supported a different outcome, our standard of review does not permit us to reach one where the Hearing Board’s conclusions are supported by evidence. We believe they are, and therefore affirm them.
2. The Hearing Board did not err in finding that the Administrator proved that Respondent improperly affixed unauthorized signatures to the Monmouth and Morton E&T agreements
Respondent argues that, when it came to the Monmouth and Morton E&T agreements, the Hearing Board disregarded its credibility findings and instead relied solely on the testimony of Diane Marsh, the Administrator’s handwriting expert, to conclude that Respondent had affixed signatures to the E&T agreements without authority. He argues that the Hearing Board should have applied the same credibility analysis that it engaged in regarding the Pekin and Trivoli building permits to the Monmouth and Morton E&T agreements, and that its failure to do so was manifest error.
Respondent also argues that Marsh’s testimony was not clear and convincing. He notes that she admitted that her opinion was limited because she only had copies of the questioned documents; that it was less than ideal that the handwriting exemplars were obtained from Respondent two years after the E&T agreements were signed; that she acknowledged that her opinions were largely based on a single “h” in one word out of the 43 pages of exemplars she examined; and that the Administrator never provided her with handwriting exemplars of anyone else for comparison. He thus argues that, in light of the Hearing Board’s credibility findings as to Respondent and Laugesen, which apply equally to the E&T agreements, Marsh’s testimony was insufficient to support the conclusion that Respondent engaged in dishonest conduct, and therefore that the Hearing Board’s findings were against the manifest weight of the evidence.
With respect to the E&T agreements, the Hearing Board noted that the only issue was whether Respondent, who acknowledged sending the E&T Agreements to SBA, had signed Helms’ and Hall’s names to the documents. He testified he had not. Based upon Marsh’s testimony, which it found credible and persuasive, the Hearing Board concluded he had.
In reaching its conclusion, the Hearing Board pointed to the many factors that led to Marsh’s opinion that it was highly probable that Respondent had written Helms’ and Hall’s signatures, names, and titles on the E&T agreements. We also note that Respondent’s counsel was able to cross-examine Marsh, and that Respondent could have obtained his own expert to examine the E&T agreements, but chose not to do so.
Given the detailed analysis in Marsh’s report and testimony, as well as in the Hearing Board’s explanation of why it accepted Marsh’s testimony and opinion, we find no basis to overturn the Hearing Board’s acceptance of her opinion, and therefore no basis to overturn its dishonesty finding as to the E&T agreements.
In sum, we believe this matter, for the Hearing Boar, came down to a burden of proof issue. The Administrator carried his burden on the charges related to the E&T agreements, but did not carry his burden on the charges related to the building permits, which were tainted by doubts about the chain of custody of Respondent’s laptop. The Hearing Board’s findings as to whether or not the Administrator met his burden of proof were based upon evidence in the record and were neither arbitrary nor unreasonable. We therefore have no basis to overturn them.
SANCTION RECOMMENDATION
The Hearing Board recommended that Respondent be suspended for four months. On appeal, the Administrator argues that, if this Board agrees that Respondent fabricated not only the Monmouth and Morton E&T agreements but also the Pekin and Trivoli building permits, it should recommend that Respondent be suspended for at least six months. However, if this Board were to uphold all of the Hearing Board’s findings of misconduct and no misconduct, the Administrator would agree that a four-month suspension is appropriate. Respondent, in turn, argues that the complaint against him should be dismissed. In the alternative, he contends that, even if this Board were to find additional misconduct, a suspension of no more than four months would be warranted.
In making our own recommendation, we consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence, In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003), while keeping in mind that the purpose of discipline is not to punish the attorney but rather to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). We also consider the deterrent value of attorney discipline and “the need to impress upon others the significant repercussions of errors such as those committed by” Respondent. In re Discipio, 163 Ill.2d 515, 528, 645 N.E.2d 906 (1994) (citing In re Imming, 131 Ill.2d 239, 261, 545 N.E.2d 715 (1989)). Finally, we seek to recommend a sanction that is consistent with sanctions imposed in similar cases, Timpone, 157 Ill. 2d at 197, while also considering the unique circumstances of each case. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991).
As support for its recommendation of a four-month suspension, the Hearing Board relied primarily upon two cases, In re Magar, 99 CH 79, petition to impose discipline on consent allowed, M.R. 16581 (April 21, 2000); and In re Jacobs, 2013PR00064, petition to impose discipline on consent allowed, M.R. 26759 (Sept. 12, 2014).
In Magar, the Court imposed a five-month suspension on consent where the respondent created two fraudulent leases in order to qualify for a mortgage, signed another person’s name to those documents without the person’s knowledge or authority, and made false statements on a mortgage application. In Jacobs, the Court imposed a 60-day suspension on consent where the respondent fabricated a letter to conceal her failure to provide proper notice to a couple before filing a mortgage foreclosure action against them. In mitigation, her misconduct took place over a period of a few weeks; she had practiced law for 29 years with no prior discipline; and she had accepted responsibility and expressed regret for her actions. The Hearing Board reasoned that this matter merits a suspension for a period between the suspensions imposed in Magar and Jacobs.
We agree that Magar and Jacobs provide guidance as to an appropriate sanction in this matter, as does In re Loprieno, 2016PR00082 (Review Bd., April 27, 2018), approved and confirmed, M.R. 29397 (Sept. 20, 2018). In Loprieno, the respondent, newly sworn in as a lawyer, created a counterfeit mortgage subordination agreement, forged two bank officials’ names on the document, pilfered a colleague’s notary stamp and falsely notarized the document, and tendered it to a lender to make the lender believe it had a superior lien on a piece of property. Using the fabricated document, the respondent was able to obtain a $25,000 loan. Six months later, the respondent undertook the same steps to create a document purporting to cancel the subordination agreement. He was suspended for five months.
The extent of Respondent’s misconduct, while serious, is less egregious than the misconduct in Magar and Loprieno. Thus, as the Hearing Board reasoned, a suspension for a period of time greater than that imposed in Jacobs but less than that imposed in Magar and Loprieno would be appropriate in this matter. We see no reason to depart from the Hearing Board’s recommendation of a four-month suspension, and therefore recommend the same.
CONCLUSION
For the foregoing reasons, we affirm all of the Hearing Board’s findings regarding misconduct. We recommend that, for his misconduct, Respondent be suspended for four months.
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Respectfully Submitted, Robert M. Henderson |
CERTIFICATION
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on May 15, 2019.
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Kenneth G. Jablonski, Clerk of the |
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1 Respondent also was accused of engaging in additional dishonesty by fabricating e-mails regarding a zoning hearing, and engaging in neglect in all five matters. The Hearing Board found that he did not engage in neglect in any of the matters, nor dishonesty in connection with the zoning e-mails, and the Administrator has not challenged those findings of no misconduct. Thus, we need not further address them.
