Introduction As Abraham Lincoln’s example reminds us, lawyers have played a leading role in our judicial system, and in all levels of our government, implementing government of, by, and for the people we represent. As an Illinois lawyer, former U.S. Senator and now president of our country, President Obama has eloquently stressed throughout his speeches and writings how we are all guided and instructed by Lincoln’s good example. Conversely, bad examples also have great power, and the process of punishing someone who is bad can both correct the offender and deter the spread of the same behavior throughout society. Our profession requires us to interact not only with the bad acts of our clients and their personal foes, but also with the badness—call it "misconduct"—of our fellow lawyers.1 Doing so properly is a key pillar of our own professional self-governance. This article outlines the standards applicable to each of us if we know of any professional misconduct of Roland Burris, President Obama’s successor as the junior U.S. Senator from the State of Illinois.
GENERAL RULE: As a condition to practicing law in Illinois, our Supreme Court requires each of us to notify the ARDC when we possess knowledge that another lawyer has engaged in misconduct.
3 Main Points:
1. Roland W. Burris, an Illinois lawyer2, U.S. Senator and former Illinois Attorney General, has made public statements that a wide range of individuals, elected officials, commentators, and Illinois attorneys have understood to fairly suggest that Burris has engaged in misconduct.
2. You can read these statements of Mr. Burris in this article. If you do read them—or know about them from another source—and if they suggest to you that Mr. Burris has engaged in misconduct, you have a duty to file a complaint with the ARDC, which you can do using the form at the end of this article.
3. If you violate a duty to report an attorney (or Roland Burris if the information in this article puts you on notice of attorney misconduct), or any other attorney engaging in misconduct, the Illinois Supreme Court can impose a sanction upon you and can take from you your license to practice law.
Seven years into his Palos Heights-based law practice3 James H. Himmel helped a client, Tammy Forsberg, go after her former lawyer, John Casey, to recover Forsberg’s monetary share of a motorcycle accident case settlement from Casey. Instead of turning over the money to Forsberg, Casey improperly kept that money for himself from his trust account.4 On his way to reaching a written settlement with Casey, Himmel bargained away Forsberg’s right to bring any "criminal, civil or attorney disciplinary action against Casey."5 Himmel also did not report his knowledge of Casey’s misconduct to the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois ("ARDC"). After Casey failed to pay anything on this settlement, Himmel filed suit to enforce it, including an enhanced non-payment penalty that would increase Himmel’s absolute dollar fee, contingent on recovery against Casey.
A separate ARDC investigation of Casey turned up Forsberg’s suit against Casey, and the fact that Himmel had not reported Casey to the ARDC. That ARDC investigation turned up Himmel’s agreement to keep a lid on Casey’s misconduct as part of the Forsberg settlement. The ARDC in turn filed a complaint against Himmel.8 For this, the ARDC Administrator recommended that Himmel be publicly censured. However the ARDC Hearing Board watered this down to only a private reprimand. Further, the ARDC Review Board recommended dismissing Forsberg’s complaint entirely.9 The Illinois Supreme Court disagreed with the ARDC’s lenient recommendations and imposed upon Himmel a one year suspension of his law practice.
The court explained that Himmel’s failure to report Casey had impeded the ARDC’s ability to police the legal profession and in so doing endangered the public. The reasoning behind the ARDC’s ruling was that it was the public that suffered from the dealings between Himmel and Casey, and instead of Himmel reporting the misconduct to the ARDC Himmel chose instead to parley with Casey to divide the spoils of Casey’s misconduct. By using Casey’s wrongdoing against him, and in Himmel’s and Forsberg’s combined pecuniary self-interest, Himmel crossed over an ethical line. The name "Himmel" now stands as a kind of " Remember Yalta"10 warning to instruct posterity of the danger of sinking too far into your opponent’s moral mire11 in pursuit of a workable solution for your client. But Himmel’s reach extends much further.
In re Himmel12 makes it clear that our adherence to the Illinois Rules of Professional Conduct (RPC) is not just a hazy kind of advisory concept, or a diplomatic suggestion, but a firm duty in the nature of a command. As a result, when we refer to a "Himmel problem" we mean the obligation we feel weighing on us when we learn of the actions of another lawyer that we know, or strongly suspect, violate RPC 8.4(a)(4).13 RPC Rule 8.3(a)14 triggers our duty to report misconduct to the ARDC.15 RPC 8.4(a)(4) states in relevant part that "A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation" and RPC Rule 8.3(a), titled "Reporting Professional Misconduct" states:
A lawyer possessing knowledge not otherwise protected as a confidence by these Rules or by law that another lawyer has committed a violation of Rule 8.4(a)(3) or (a)(4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
This duty to report misconduct does not require the lawyer to make a judgment on the merits of any charges that may result from the report of the misconduct.16 A Himmel duty can arise even in the context of information learned by an attorney from reviewing documents that have been sealed by order of the court in pending litigation.17
What about an attorney who hears about another attorney’s misconduct by watching the news on television, reading a paper, or studying a website? The RPC and the Himmel line of decisional law do not contain any spatial or "six degrees of separation" limits to our reporting responsibility; neither do they contain a kind of "hearsay buffer" that allows us to ignore information of another’s misconduct, no matter how we "know" it. As noted by Ellis and Hanes,18 an attorney "knows" about a Himmel problem when he or she has "’actual knowledge’ that ‘may be inferred from circumstances.’"19 The duty to report is triggered when the "known" information "raises more than a mere suspicion of misconduct."20 "Absolute certainty" is not required.21 In the case of Roland Burris, an attorney paying light topical attention to current events might plausibly maintain that any headlines or hallway chatter discussing any statements or actions by Burris cannot be "knowledge" of the substance of what Burris may or may not have said or done.
But what if an attorney looks hard at publicly available information? Is there enough information out in public to produce enough knowledge of actions by Burris to trigger an attorney’s Himmel duty? 22 If he said it to your face and it was reportable, how does it become less serious if "spread abroad" to the public? You may decide this question by continuing to read the next section of this article.23
Burris Statements Suggesting Misconduct
On January 8, 2009, the Illinois House of Representatives convened an investigative hearing designed to learn the truth about any misconduct of Governor Rod Blagojevich or Roland Burris in relation to Blagojevich giving Burris his new job replacing Barack Obama in the United States Senate. Democratic Representative Jack Franks24 captured the enraged tone of this unusual hearing when he pointed out:
I believe that Rod Blagojevich is a liar. I also believe he’s a thief. I think he’s stolen the public trust. He has knowingly violated state procurement laws. He has knowingly violated state ethics laws. He has willfully violated court orders. He has driven our state to the edge of the abyss. Perhaps Rod Blagojevich will soon be convicted of various crimes, ranging from extortion to selling public assets for personal gain.25
In this high-stakes atmosphere, Burris was questioned about any exchange of money, favors or anything else in return for his appointment by Rod Blagojevich. Burris was specifically asked, under oath,26 to respond to this question: "At any time were you directly or indirectly aware of a quid pro quo27 with the Governor for the appointment of this vacant Senate seat?" Mr. Burris responded: "No, sir."28
Based on his answers to this and a line of similar questions, Burris was found to be "untainted" by any dealings with Blagojevich, and a leery United States Senate eventually agreed to seat him as the junior Senator from Illinois. A few weeks later, Burris told a Chicago Sun-Times reporter something he had not said under oath, when he reportedly admitted that yes, in fact, he had been contacted by Robert Blagojevich, chairman of now-former Governor Rod Blagojevich’s campaign fund, and that chairman hit him up for $10,000 or $15,000 prior to getting the U.S. Senate job.29 According to published reports, Burris further admitted that he went ahead and attempted to raise this money for Rod in response to the solicitation of Rod’s brother, Rob. Mr. Burris reportedly made this statement after brother Rob talked to him but before Rod appointed him to be a U.S. Senator.30 In an interesting Himmel-esque twist, Burris says neither Rod nor Rob ended up getting any cash out of this, since his fund-raising actions were unsuccessful.31
Your Duty under Himmel
Now you decide. Does this information "raise more than a mere suspicion of misconduct" that attorney Burris obstructed the truth about any quid pro quo when answering a very plain question under oath from Representative James Durkin?32 If it does, you must now determine if you have a duty to report this misconduct under RPC 8.3(a), as implemented by Himmel and its progeny. The way Roland Burris has conducted himself has likely thrust upon we attorneys an affirmative responsibility and duty as prescribed by the Illinois Supreme Court, through its administrative arm of the ARDC, to avoid a Himmel problem of our own.33
Sample Complaint Form
REQUEST FOR INVESTIGATION OF A LAWYER
130 East Randolph Drive
Chicago, Illinois 60601-6219
1. Your name: ____________________________________________
Street Address: ____________________________________________
City: _____________________ State: _____ Zip: ________________
Home Phone Number: ________________________________
Cell Phone Number: __________________________________
Business Phone Number: _______________________________
2. Name of Lawyer you are complaining about: Roland W. Burris
Name of Law Firm: Gonzales, Saggio & Harlon, LLP
Street Address: 35 East Wacker Dr., Suite 500
City: Chicago State: Illinois Zip: 60601-2105
Phone Number: (312) 566-0040
3. Did you employ the lawyer?
If yes, when was the lawyer hired? ______________________
How much did you pay for the lawyer? ___________________
If no, what is your connection to the lawyer? Mr. Burris represents me as a United States Senator, and is a fellow member of the Illinois Bar
4. If your complaint relates to a lawsuit, please give the following:
Name of court (for example: Circuit Court of Cook County): ___________________________
Name of case: _____________________________________________________
Case number: ______________________________________________________
5. Please describe what the lawyer did or failed to do that you believe may have been improper. If you employed the lawyer, explain what you employed the lawyer to do. Include important dates and names, addresses and telephone numbers of witnesses and other people involved. Do not include opinions or arguments. Attach copies of any documents that support your complaint, such as fee agreements, receipts, checks, letters and court papers.
While answering questions from the Illinois House of Representatives Impeachment Committee on January 8, 2009, Mr. Burris was asked: "At any time were you directly or indirectly aware of a quid pro quo with the Governor for the appointment of this vacant Senate seat?" Mr. Burris responded: "No, sir." (Transcript of Proceedings, Vol. VII, P. 942, lines 14-18). This statement was false, as Mr. Burris is reported to have admitted on February 16, 2009, to the extent that Mr. Burris was in fact contacted by Robert Blagojevich, chairman of former Governor Rod Blagojevich’s campaign fund, and asked for $10,000 or $15,000 prior to Mr. Burris being appointed to the U.S. Senate by Rod Blagojevich. According to published reports, Mr. Burris has further admitted that he attempted to raise money for Rod Blagojevich in response to the solicitation of Rob Blagojevich, after Rob talked to him but before Rod appointed him to be a U.S. Senator. (Dave McKinney and Natasha Korecki, "Senate Opens Burris Probe: Ethics Heat is on," Chicago Sun-Times, Feb. 17, 2009). Due to my knowledge of this reported conduct by Mr. Burris, pursuant to The Illinois Supreme Court Rules of Professional Conduct (RPC), Article VIII, Rule 8.3(a), I am required to report this knowledge to the ARDC insofar as the statements and conduct of Mr. Burris appear to be in violation of RPC Rule 8.4(a)(4), which states that "A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
Date: ________________ Signature: ______________________________
1 Although we look at Roland Burris, the same dynamic under different state rules was applied in the cases of, e.g, Richard Nixon (Disbarred New York, 1976), Bill Clinton (Suspended 5 years Arkansas, 2001; Suspended and resigned facing disbarment, U.S. Supreme Court, 2001), Gordon Liddy (Disbarred New York, 1973), Spiro Agnew (Disbarred Maryland, 1972), Lewis "Scooter" Libby (Disbarred, District of Columbia), Mike Nifong (Disbarred North Carolina, 2007) and Eliot Abrams (In re Abrams, 689 A.2d 6 (1997), District of Columbia Bar complaint). Attorneys who get in public trouble have been subject to this layer of discipline for decades. According to this list, with the exception of Gerald Ford, every U.S. President after Franklin Roosevelt who entered office with a law degree has been disbarred due to conduct while in office. President Obama’s term is not yet completed. Were George W. Bush to have chosen Harvard Law School rather than Harvard Business School, surely by now numerous complaints would be on file seeking investigations into "misconduct." See generally, Sam Stein, "Leahy: Investigate Bush Now," Huffington Post (Feb. 9, 2009) (Roland Burris’s fellow Democratic U.S. Senator, Patrick Leahy, "Speaking at a forum at Georgetown University… suggested the creation of a truth and reconciliation commission to uncover the ‘misdeeds’ of the past eight years.")
2 The ARDC website lists Burris as "active and authorized to practice law" as of Feb. 20, 2009.
3 Mr. Himmel is currently in good standing as an active member of the Illinois bar, according to ARDC records.
4 Tammy Forsberg’s first attorney was John R. Casey, who was supposed to receive 1/3 of the settlement, but took the whole thing for himself after depositing the settlement check to his trust account.
5 In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790, 791 (1988). The Himmel opinion suggests that Himmel created a settlement agreement that would provide Himmel with an increased fee if Casey breached it. The original 2/3 amount stolen from Forsberg was $23,233.34. Himmel compelled Casey to agree to pay Forsberg $75,000; and when Casey failed to pay the $75,000, Himmel sued Casey to enforce the settlement agreement, and obtained a $100,000 judgment in favor of Forsberg against Casey. If Casey had paid that $100,000, Himmel would have received a $25,588 fee. Although Forsberg did receive another $10,400 from Casey, Himmel never received any fee.
8 Id. at 533 N.E.2d 792.
9 Id. at 795.
10 At the 1945 Yalta Conference in the Crimea, Franklin Roosevelt contributed the moral authority of the United States to the cynical division of post-Nazi Europe proposed by Joseph Stalin and Winston Churchill, stranding millions in Communist tyranny, and producing a great 40-year stain on our victory, until Ronald Reagan finally withdrew our participation in this historic quid pro quo.11 In the timeless language of ethics, this "active truth" dynamic is captured in Paul’s letter to the Romans, when he writes "Blessed is the man who does not condemn himself by what he approves." Romans 14:22b (NIV). Conducting a merely interiorized ethical dialogue with yourself doesn’t save you under Himmel.12 125 Ill.2d 531, 533 NE. 2d 790 (1988). See generally, Seth L. Ellis and Jeffrey R. Hanes, "The 20 Year Anniversary of Himmel: Brushing Up on Your Duty to Report Attorney Misconduct, DCBA Brief (March 2009).
13134 Ill. 2d R. 8.4(a)(4)
14 134 Ill. 2d R. 8.3(a)
15 The report must be made to the Attorney Registration and Disciplinary Commission (ARDC). Telling a judge is not sufficient.
16 See, Skolnick v. Altheimer & Gray, 191 Ill.2d 214, __, 730 N.E.2d 4, 15 (2000)
17 Skolnick, 730 N.E.2d at 18.
18 Seth L. Ellis and Jeffrey R. Hanes, "The 20 Year Anniversary of Himmel: Brushing Up on Your Duty to Report Attorney Misconduct, DCBA Brief (March 2009).
19 Id., citing Skolnick, 730 N.E.2d at 14 (in turn citing the RPC definition of "knowledge" at 134 Ill.2d 472 )
20 Skolnick, 730 N.E.2d at 14.
21 Id., citing Model Rule 8.3 of the ABA Annotated Model Rules of Professional Conduct 555 (3d ed. 1996)
22 During the Clinton years of Whitewater, "Travelgate" and of course the Lewinsky matter, our population was schooled in the notion that we are all presumed innocent of criminal charges unless convicted of the same by a jury after trial, and beyond a reasonable doubt. Himmel operates with far less certainty, as Bill Clinton discovered when he was stripped of his Arkansas law license due to his misconduct under oath in the Lewinsky deposition.
23 If you are an Illinois attorney, stop reading now to avoid having enough "knowledge" to arguably trigger a Himmel obligation to report Burris to the ARDC.
24 Also an Illinois lawyer.
25 Illinois House of Representatives Impeachment Committee on January 8, 2009 Transcript of Proceedings, Vol. VII, p. 1036, lines 23-24 thru p. 1037, lines 1-7.
26 According to James Grogan, ARDC deputy administrator and chief counsel, lawyers are held to a higher standard while testifying under oath and "You do not need a perjury finding to have an attorney disciplinary agency bring a proceeding against a lawyer for not being candid." Quoted in Dave McKinney and Natasha Korecki, "Law License at Risk? Burris affidavit also filed with Supreme Court—but never corrected," Chicago Sun-Times, Feb. 20, 2009.
27 quid pro quo is Latin meaning "something for something" (footnote not in original). "English speakers often use the term to mean ‘a favour for a favour’ and the phrases with almost identical meaning include: ‘what for what,’ ‘give and take,’ ‘tit for tat,’ ‘this for that,’ ‘you scratch my back, and I’ll scratch yours’, and ‘swings and roundabouts.’"
28 Illinois House of Representatives Impeachment Committee on January 8, 2009 Transcript of Proceedings, Vol. VII, p. 942, lines 14-18.
29 As reported by Dave McKinney and Natasha Korecki, "Senate Opens Burris Probe: Ethics Heat is on," Chicago Sun-Times, Feb. 17, 2009. Senator Burris has not denied these statements as reported, and additional news outlets have reiterated the same statements. See, e.g., Roger Runningen and Andrew Harris, "Burris Should Think About Statements, Future, Obama Aide Says," Bloomberg.com (2/21/09); Carol Marin, "Too late for ex-Burris backers to cut and run," Chicago Sun-Times (Feb. 21, 2009) (pointing out some political situation-ethics to the effect that "If not for Burris’ vote on the stimulus package, Team Obama would not have had a filibuster-proof majority. Senators Harry Reid and Dick Durbin can hold their noses all they want, but Burris was useful.") These latter-day statements are clear enough to cause Illinois Governor Pat Quinn to call for Burris to resign, as reported by Bloomberg in the same story.
30 Id.31 Id.32 Id. fn 26. Is one man’s balance-of-professional power fund raising another man’s quid pro quo? Should the ARDC be given the opportunity to decide? Is it worth losing your license to keep your personal knowledge of this thorny issue private?
33 Legal ethics has just become very personal and much more threatening than most MCLE seminars designed to make you think hard about difficult situations we face as lawyers.
Edward N. Tiesenga (B.A. cum laude, Hope College, 1981; J.D. American University, 1984), practices commercial law with Tiesenga Gottlieb & Reinsma LLP in Oak Brook, Illinois.