Filed April 18, 2007
In re James Albert Casson
Commission No. 06 SH 23
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) charging an excessive fee; 2) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; 3) breaching a fiduciary duty; 4) overreaching the attorney-client relationship; 5) failing to disclose to a tribunal the identities of the client represented and of the persons who employed the lawyer; 6) failing to explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation; 7) engaging in conduct that is prejudicial to the administration of justice; and 8) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: Rules 1.4(b), 1.5, 3.3(a)(8), 8.4(a) (4) & (5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
DATE OF OPINION: April 18, 2007
HEARING PANEL: Paul C. Hendren, Julian C. Carey, Richard J. Mark.
RESPONDENT'S COUNSEL: William F. Moran, III.
ADMINISTRATOR'S COUNSEL: Denise Church.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
JAMES ALBERT CASSON,
Commission No. 06 SH 23
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on September 29, 2006, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois, before a Panel of the Hearing Board consisting of Paul C. Hendren, Chair, Julian C. Carey, lawyer member, and Richard J. Mark, public member. The Administrator was represented by Denise Church. The Respondent was present and was represented by William F. Moran, III.
On April 27, 2006, the Administrator filed a one-count Complaint against the Respondent. The Complaint alleged that the Respondent was a public defender in Livingston County, and he was allowed to accept cases outside of his employment with the county. On April 21, 2004, the Respondent, in his capacity as public defender, was appointed to represent Nathan J. Brown, who was charged with two counts of Aggravated Criminal Sexual Abuse (People v. Brown, No. 04 CF 83). Bond was set in the amount of $30,000, requiring the posting of 10% thereof, or $3,000, for release. In early May 2004, Brown asked the Respondent to contact his grandparents, Vynomma and Carl Brown, about paying the $3,000 for his release. The Respondent contacted Vynomma Brown and conveyed Nathan's request. The Respondent also
told Vynomma that he could spend more time on the case if she paid him $3,000 in attorney fees. Vynomma and the Respondent agreed that Respondent would represent Nathan as privately paid counsel in the case for $3,000. On May 10, 2004, the Respondent received a check from Vynomma and Carl Brown in the amount of $3,000.
The Complaint also alleged that the Respondent did not advise Nathan Brown or his grandparents to seek advice from independent counsel regarding the change of the representation from appointed to privately retained or that the Respondent, as appointed counsel, had a duty to completely and diligently represent Nathan free of charge. Also, the Respondent did not file an appearance as private counsel in the case or otherwise inform the court that he was no longer appearing as public defender.
On May 28, 2004, Nathan Brown,based upon the advice of the Respondent, pleaded guilty to the offense of Aggravated Criminal Sexual Abuse, and was sentenced to a four-year term of probation and 90 days imprisonment.
Sometime after May 28, 2004, the Respondent learned that the Browns had stopped payment on the $3,000 check to him. He contacted Vynomma Brown and told her he would have her arrested if she did not re-issue the check. In June 2004, the Respondent requested the State's Attorney to file criminal charges against Vynonna Brown for stopping payment on the check. The State's Attorney declined to do so.
Based upon the foregoing allegations, the Administrator charged that the Respondent engaged in the following misconduct: (a) charged an excessive fee; (b) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; (c) breached his fiduciary duty; (d) overreached the attorney-client relationship; (e) failed to disclose to the court the identities of the client represented and the persons who employed him; (f) failed to explain a matter to Nathan
Brown to the extent necessary to permit Brown to make an informed decision regarding the representation; (g) engaged in conduct that is prejudicial to the administration of justice; and (h) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
The Respondent filed an Answer on May 25, 2006, in which he admitted some of the factual allegations, denied others, and denied all of the charges of misconduct.
The Administrator presented the testimony of Nathan Brown (via live video communication),Vynomma and Carl Brown (via telephone), and Judge Harold Frobish. The Administrator's Exhibits 1 through 11 were admitted into evidence. (Tr. 17)
The Respondent testified in his own behalf and presented the testimony of Harlan Cotter, Michael Malin, Steven Skelton, and Danielle Popp. He also presented the deposition testimony of five witnesses. The Respondent's Exhibits 1 through 7 were admitted into evidence. (Tr. 17)
Nathan Brown testified that he is currently in the Department of Corrections, as the result of a finding that he violated the conditions of his probation. (Tr. 20, 42-43)
In April 2004, he was charged with two counts of Aggravated Criminal Sexual Abuse, both Class 2 felonies, against a female who was between 13 and 17 years of age. (Adm. Ex. 2) On April 21, 2004, Nathan appeared in court, bond was set at $30,000 (which required $3,000 to be posted for his release), and the Respondent as public defender was appointed to represent him. (Adm. Ex. 3&7, p. 4) While Nathan was in the county jail, he was attacked by other inmates and, at some point, was placed into segregation. (Tr. 20-23, 39-40)
Nathan first met the Respondent on May 3, 2004, when he was returned to court. Between April 21 and May 3, 2004, Nathan had made telephone calls to his grandparents (Vynomma and Carl Brown) and asked them for the $3,000 needed for his release on bond. They said they would try to get a loan and send the money. Nathan also asked the Respondent to contact the grandparents about the bond money, and the Respondent said he would do so. Subsequently, during a telephone conversation, the Respondent told Nathan that Nathan could either use the $3,000 for bond or pay the $3,000 to the Respondent "so he would spend more time on" Nathan's case. The Respondent did not tell Nathan what extra things he would do if he was paid the $3,000 as a private lawyer. Nathan also testified that the Respondent did not tell him "he would work hard on [the] case even if [Nathan] didn't pay him" or mention hiring another lawyer on the case. (Tr. 24-25, 28, 48)
Nathan's grandparents let Nathan choose whether to pay the $3,000 to the Respondent or to use it for bond. Nathan decided to pay it to the Respondent because "I wanted him to work as hard as [he could] to get me out of it." (Tr. 24, 48, 49-50)
Nathan said that from May 3 to May 28, 2004, when he entered his guilty plea, he spoke with the Respondent on two occasions in court and twice by telephone. He said that the Respondent did not visit him in jail. Nathan said he recalled discussing the facts of his case "a little bit" with the Respondent. He asked the Respondent to talk with the alleged victim because Nathan's wife had indicated that the alleged victim would deny the crime occurred. Nathan did not know if the Respondent talked with the alleged victim. Nathan further stated that he did not see the materials, including a police report, disclosed by the prosecutor before he entered his guilty plea. Nathan denied telling a police officer that he had fondled the alleged victim's breasts as stated in a police report. (Tr. 26-29, 37-38)
On May 28, 2004, Nathan appeared in court with the Respondent, was admonished by the judge, and entered a plea of guilty to both counts. (Adm. Ex. 7, p. 7-12) The judge accepted the plea agreement and sentenced the Respondent to probation for four years. (Adm. Ex. 7, p. 13-14) Nathan said he did not know he was pleading guilty to a felony until he was told by the judge. He also said that the Respondent did not talk to him about having to register as a sex offender. (Tr. 29-30, 35-37)
About six days after his guilty plea, Nathan was released from jail. He went to the circuit clerk's office and inquired about an appeal. He said that someone in the clerk's office told him he had to "go back to the original attorney" who represented him. He then called the Respondent. The Respondent told him that Nathan's grandparents had stopped payment on the $3,000 check, and told Nathan to "get it reissued." During a second phone call, Nathan said he could not do anything about the check because it was his grandparents. The Respondent then told Nathan to handle things himself and hung up. Nathan did not contact another attorney in regard to an appeal. (Tr. 30-31, 41-42)
Vynomma Brown testified that she and her husband, Carl, are retired. They live in California, and are the grandparents of Nathan Brown. (Tr. 52-55)
In the spring of 2004, Nathan was charged with two sexual abuse offenses and was confined at the Livingston County jail. She spoke with him several times by telephone, and Nathan asked her to pay the $3,000 required for him to be released on bond. (Tr. 55-58, 73-74; Adm. Ex. 11)
On about May 4, 2004, Vynomma received a telephone call from the Respondent. He told her that he was the public defender appointed to represent Nathan and that $3,000 needed to
be paid for Nathan to be released on bail. She testified that he also told her "it would be in our best interest and Nathan's best interest to pay that out to a lawyer rather than as bail." She replied that she did not know any lawyer in Livingston County, and the Respondent said "you could hire me" for $3,000. She told him that she thought he was the public defender, and he said "well, yes, but if you pay me I will have more time to spend on the case." He did not explain what extra services he would provide if hired as a private attorney. (Tr. 59-62)
Vynomma and her husband discussed the matter of paying the $3,000 to the Respondent, and decided to do so. She explained that they felt "it was probably better if he was going to have more time to spend on the case if we hired [him];" she understood they "were getting … more of his time to be able to form a good defense for Nathan;" and "Nathan would maybe have a better chance of having a defense." She also said that the decision to hire the Respondent was made by her and her husband, and that Nathan "went along with it." The Browns borrowed the $3,000 from a credit union and on May 7, 2004, sent a check in that amount to the Respondent for attorney fees (Adm. Ex. 6). (Tr. 60-63, 74-76)
Vynomma also testified that she ask the Respondent to check on Nathan in jail to see if he needed medical assistance. However, the Respondent did not ask her to pay him to do so and she did not pay the Respondent for that purpose, but rather for him to spend more time on Nathan's case. (Tr. 62-63)
At some point between May 4 and May 28, 2004, the Respondent told her that he was suggesting a plea bargain for Nathan. He said that, with the plea bargain, Nathan would plead guilty to "two charges of misdemeanor." She told the Respondent that she did not agree with a guilty plea and that it was "wrong for Nathan to plead guilty to something that he had not done." The Respondent replied that it would be up to Nathan, and Vynomma said she "had to agree with
him on that." (Tr. 63-64, 78, 81)
On about May 28, 2004, Nathan's wife informed Vynomma that Nathan had entered a guilty plea on two felony counts. Thereafter, Vynomma stopped payment on the $3,000 check (Adm. Ex. 6). She explained that she stopped payment on the check because she thought "it had been illegal for him [as public defender] to ask for extra money from us." This belief was based on what her sister, who had "some legal training," told her. Another reason for stopping payment on the check was "the fact that we had not been hearing from [Respondent]." (Tr. 65-66, 68-69, 76-77)
Subsequently, the Respondent called her and asked why she had stopped payment on the check. She told him she thought it was "illegal for him to ask for money from us." He told her that if she did not "reinstate the check that he was going to have me prosecuted for … felony bad check charges." She replied "I will see you in court." After she stopped payment on the check, she returned the $3,000 to the credit union where they had borrowed it. (Tr. 70-71, 77)
Carl Brown testified that he spoke with his grandson Nathan Brown after Nathan had entered his guilty plea. Nathan said he was "unable to get an appeal because [Respondent] wouldn't help him." Ultimately, Carl and Vynomma drove to Illinois from California to try to assist Nathan. Carl spoke with the Respondent, and asked him why he wouldn't help Nathan. The Respondent replied that the Browns had "canceled his check." Carl contacted two other attorneys, but was unable to help Nathan with an appeal. One of the attorneys told him that it was too late to file an appeal. (Tr. 86-88)
Harold Frobish testified that he is a Circuit Court Judge, and that he has been the presiding judge in Livingston County for 8 years. (Tr. 91-92)
He was not involved in the case of People v. Nathan Brown, No. 04 CF 83, but did review the court file. He said the Respondent was the public defender appointed to represent Brown, and that there is no reference in the court records of the Respondent appearing as paid or private counsel on behalf of Brown. He also said that an attorney's change from being appointed counsel to being paid counsel "needs to be on the record before a court reporter" and that there is "no substitute for having the paper in the file." (Tr. 93-94, 99)
Judge Frobish said there is no statute that prohibits a public defender appointed in a case from becoming a privately paid counsel in the same case. He recommended that a change be made to prohibit appointed counsel from switching to that of private counsel in the same case. He said he did not want all public defenders prohibited from handling private counsel cases because some countries, such as Livingston, cannot afford to pay full time public defenders. (Tr. 95, 109, 117-19)
He also said that before a public defender switches from appointed to paid counsel, the public defender should appear with the client in court and before a court reporter. The public defender should then explain on the record that the representation "won't be any better as paid counsel," but that paid counsel may spend more time with the client and perhaps the client's family." Judge Frobish acknowledged that the foregoing procedure is not currently required. (Tr. 95-96, 105-06)
Judge Frobish further testified that a public defender should not solicit a fee from a client he or she has been appointed to represent, stating that there is an "ethical conflict" if a "public
defender is asking his client to pay him." (Tr. 101-02)
Finally, Judge Frobish said that the Respondent is no longer a public defender. A public defender serves at the pleasure of the judges in a circuit, and the judges approved the termination of the Respondent as public defender. He was given the option of resigning or being terminated, and he resigned. As a result, the Respondent lost a salary, insurance, and retirement benefits that exceeded $70,000 a year. (Tr. 92-93, 104, 110-12, 115-16)
Michael Malin testified that he has been a licensed attorney since 2001. In April and May of 2004, he was an assistant state's attorney in Livingston County and was present at the preliminary hearing in the case of People v. Nathan Brown on May 3, 2004. (Adm. Ex. 1) He said that on two occasions between May 3 and May 28, 2004, the Respondent disclosed that he had switched from being appointed counsel to privately paid counsel for Nathan. The first occasion was during a conversation with Malin about a week after the preliminary hearing. The second occasion took place in the State's Attorney's office in the presence of Malin and the State's Attorney, Thomas Brown. (Tr. 129-32)
Malin also stated that it would not be unusual for a criminal defense attorney to enter a verbal appearance before the court in Livingston County. He noted that "typically in a felony case there should be a court reporter" present in court. (Tr. 133-35, 137-38)
Finally, Mr. Malin said that the Respondent's reputation for honesty and integrity is of the highest regard. (Tr. 133)
Thomas J. Brown
Thomas J. Brown testified by evidence deposition (Resp. Ex. 1) that he has been the State's Attorney of Livingston County since 1991. (p. 3-4)
Sometime after Nathan Brown had pleaded guilty on May 28, 2004, the Respondent came to Thomas Brown's office and stated that he had received a bad check from Nathan or a family member. The Respondent was "trying to decide what to do, whether he should sue them or … pursue it criminally." (p. 4-6)
Mr. Brown said that he did not recall the Respondent ever asking him to file criminal charges against Nathan's grandmother, Vynomma Brown. Also, Mr. Brown said he did not "decline" to file such charges because no one had requested him to file them. (p. 7-8, 11-13)
Finally, Mr. Brown said that he has known the Respondent for 24 years, and that the Respondent has a reputation for being honest. (Resp. Ex. 1, p. 9-10)
Steve Skelton testified that he has been in private practice as a sole practitioner since about 1978. During the first 10 years of his practice, he was also public defender of McLean County. At that time, the public defender and assistant public defender positions were not full time. Over 90% of his practice is in the area of criminal law. (Tr. 139-41)
Mr. Skelton said the he is not aware of any prohibition under Illinois Law for a public defender, who is permitted to have a private practice, from starting out as appointed counsel and then switching to a privately paid counsel in the same case. He said that the main difference between representing a client as privately paid counsel and as public defender is that a private client expects the attorney to have more frequent contact with the client and the client's family. He also said that "lots of times" his public defender clients believed they would get better services if they paid. In those instances, Mr. Skelton advised the clients "the results aren't going to be any different, the work isn't going to be any different, my performance in the courtroom or in consultation with the client isn't going to be any different." (Tr. 146-49; 153)
Mr. Skelton said that there were occasions when he switched from public defender to private counsel. He emphasized that he never asked a public defender client to pay him. He also said that when such a switch is made, a written entry of appearance should be filed with the court announcing the new status as private counsel. Although it is not his practice, he acknowledged that sometimes an oral appearance is made on the record by an attorney, instead of a written entry to appearance. (Tr. 149-51, 154)
Danielle Popp testified that she is the 25-year-old stepdaughter of the Respondent. She presently resides and works in Collinsville, after earning a bachelor's degree from Southern Illinois University. (Tr. 154-55)
In 2004, Danielle was a secretary in the Respondent's law office. She said that the Respondent would "occasionally" have her sit in on telephone conversations he had with clients and other people. The calls would be put on speaker phone. She worked late two nights a week, and the Respondent often made telephone calls on those nights. She acknowledged that she did not advise the clients she was listening to their conversations with the Respondent. However, the Respondent "sometimes" gave directions to her during the conversations, and she "sometimes" spoke during them. (Tr. 155-56, 165-69)
In May 2004, the Respondent represented Nathan Brown in a sexual abuse case. She was present on May 4, 2004, when the Respondent telephoned Nathan's grandparents, Carl and Vynomma Brown. The call was put on speaker phone, and she heard the entire conversation. She said the Respondent told the Browns that he had been appointed as public defender to represent Nathan. He also discussed the charges, and pointed out that Nathan had been on suicide watch at the county jail. The Browns asked when the Respondent would visit Nathan again, and the
Respondent said in a "couple of weeks." Mrs. Brown "was not happy with that," and wanted the Respondent to go regularly to see Nathan and check in on him." The Respondent told them that, as a public defender, it was not his job to check on Nathan regularly at the jail. The Browns inquired if they could hire a private lawyer to check on Nathan regularly, and the Respondent said yes. The Respondent then gave the Browns the names of two attorneys they could hire privately. The Browns then ask if they could hire the Respondent privately. He then said they could, and that his retainer would be $3,000. (Tr. 156-60)
Danielle also testified that during the telephone conversation with Nathan's grandparents on May 4, 2004, the Respondent told them that there would be "no difference" in the way he would handle Nathan's case if he was hired privately. He also said the "only difference" would be that, as private counsel, he would do "wellness checks [and receive] phone calls from the jail but as far as how he would actually represent Nathan no, there would be no difference." (Tr. 170)
Danielle further testified that she did not recall the subject of bond being discussed during the above telephone conversation. She said she did not make any notes of the conversation. (Tr. 160, 168)
As the secretary for the Respondent, Danielle received discovery documents "almost every week." She did not specifically recall the discovery in Nathan's case. However, she said her normal practice was to make a copy of the discovery she received, and send a copy to the client. (Tr. 162)
Between May 4 and May 28, 2004 (when Nathan entered his guilty plea), Danielle took telephone calls from Nathan and from his grandparents. Nathan called about "five to ten times," and his grandparents called "two to three times a week at least." If the Respondent was in the office, he took their calls. If not, she would take a message. Danielle said that the Respondent
was "good about taking calls form clients," including his public defender clients. (Tr. 162-64, 168)
Finally, Danielle testified that Vynomma Brown was very upset when she learned that Nathan was going to plead guilty. Mrs. Brown told Danielle that Nathan was not guilty and should not plead guilty. The Respondent spoke with Mrs. Brown after she learned of the planned guilty plea, but Danielle was not present during that conversation. (Tr. 164-65)
The Respondent testified that he is 50 years of age and has been licensed to practice law since 1981. From 1981 to 1984, he worked for another attorney. From 1984 to 1986, he had his own practice in Pontiac. He was also a part-time assistant public defender from 1981 to 1986. He was then an assistant state's attorney for Livingston County from 1986 to 1994. Since 1994, he has been a sole practitioner. He was a part-time public defender in Livingston County from December 2001 to June 2006. He estimated that in May 2004 he had 250 to 300 public defender cases. (Tr. 172, 175-76, 180-81, 249-50, 252)
The Respondent said that he was active in various community sporting activities when his children were younger. He coached various teams and was an officer in a junior football league for several years. He said he is a member of the Elks Club and was formerly a member of the Moose Lodge. He also described some pro bono work he was done for younger people in the community. He said he does the pro bono work about once a month. (Tr. 177-79, 182)
He acknowledged that he has had some problems with the Internal Revenue Service resulting from his failure to pay certain taxes about 15 years ago. He said he has been making payments to the IRS, and still owes about $150,000. (Tr. 183-86, 236)
The Respondent said that the loss of his job as a public defender will adversely affect his financial situation. (Tr. 182-83)
In regard to his representation of Nathan Brown in the case of People v. Brown, Livingston County, No. 04 CF 83 (Adm. Ex. 1), the Respondent said he was appointed as public defender to represent Nathan on April 21, 2004. (Adm. Ex. 3) On May 3, 2005, he appeared in court for the preliminary hearing. On that date, he spoke with Nathan, and Nathan explained various problems he was having in the jail. Nathan also asked the Respondent to call his grandparents, Vynomma and Carl Brown, to "bring them up to date on the status of his case." (Tr. 186-192)
On May 4, 2004, the Respondent telephoned the Browns in California, and spoke with Vynomma. He said he told her he was the public defender who had been appointed to represent Nathan. He said he also explained the charges against Nathan, the possible sentences, and the problems Nathan was having in the jail. Vynomma seemed "extremely upset" about Nathan's mental and physical health, and asked when the Respondent was going to see Nathan again. The Respondent said that he would see Nathan in a "couple of weeks," after he received the discovery materials. Vynomma inquired whether a privately paid attorney could visit Nathan more often, or on a "regular basis." The Respondent told her that a private attorney could check more often on Nathan. When Vynomma said she did not know any attorneys, the Respondent gave her the names of two attorneys. She then asked him if he took private cases and, if so, what his fee would be for Nathan's case. The Respondent replied that he did take private cases and that his fee in this case would be $3,000. The Respondent heard, over the phone, Vynomma discussing the private attorney matter with her husband. Vynomma then told the Respondent they decided to hire him and would send him a check the following week. She also asked the
Respondent to hold the check for ten days while they transferred money to cover it. He received the check (Adm. Ex. 6) on about May 10, 2004. (Tr. 193-200, 240-41, 252)
The Respondent said that at some point during his telephone conversation with Vynomma on May 4, 2004, he told her that bond had been set for Nathan at $30,000, and that it was necessary to post $3,000 in order for him to be released. She replied that she and her husband were traveling and "did not have access to any liquid funds at that point in time." The Respondent did not tell Vynomma to consider using the $3,000 for Nathan's bond because she wanted a private attorney to check on Nathan's well being. (Tr. 197-98, 241-42, 249)
The Respondent said that he also explained to the Browns during the above telephone conversation how his services would differ if he was hired as private counsel. He said he told them that his work on the defense of Nathan's case and his efforts in the court room would be the same regardless if he was acting as public defender or private counsel. The difference would be that as public defender "I was not responsible for well-being checks on Nathan at the jail and wasn't responsible as acting as a conduit between Nathan and his grandparents about how he was doing and how his case was progressing. Because the Browns were "looking for services to be performed that were not required as public defender," the Respondent believed this was an appropriate case to switch from public defender to private pay counsel. (Tr. 199, 235-36)
During the period of May 4 to May 28, 2004, the Respondent spoke with Vynomma Brown on a regular basis. He also spoke with Nathan on five or six occasions by telephone. Additionally, the Respondent said he visited Nathan in the jail about six times during this period. He said he visited Nathan on about May 17th and discussed with him the discovery materials received from the state's attorney. Two additional meetings in the jail pertained to the initial and the modified plea offers. Additionally, the Respondent "made at least three trips over [to the jail]
just to see how [Nathan] was doing." (Tr. 200-06, 236-37, 242)
The Respondent said that the Sheriff's Daily Jail Log Reports for the month of May 2004 (Adm. Ex. 10), which show only two attorney visits are not accurate. He said he is frequently admitted into the jail to visit clients without being asked to sign a log. (Tr. 201-02, 250, 254-55)
When the Respondent and Nathan initially discussed the discovery materials, Nathan denied committing the crimes charged, and said that an independent witness and a police officer were lying. The officer said Nathan admitted the factual basis of the charges. Ultimately, however, Nathan admitted the offenses. The State's attorney initially made a plea offer for probation plus six months in jail. (Adm. Ex. 5) After the Respondent and Nathan discussed the offer, the Respondent contacted the State's Attorney's office and was able to get jail time of 90 days, with credit for time served, for Nathan. (Adm. Ex. 7, p. 8) The Respondent denied that he ever told Nathan that the plea offer was for him to plead guilty to misdemeanor charges. On about May 24, 2004, Nathan indicated that he would probably accept the modified plea offer, but wanted to talk to his grandparents first. (Tr. 206-17, 251-52)
The Respondent then received a call from Vynomma Brown. She was very angry about the proposed guilty plea. She insisted that Nathan was not guilty, that he was not going to plead guilty, and that the Respondent should stop trying to talk Nathan into pleading guilty. She also said that she had paid the Respondent the $3,000 and that he needed to do what she told him. The Respondent explained to her than Nathan was his client, that he owed an obligation to Nathan, not Vynomma, and that it would be Nathan's decision to make. (Tr. 217-18)
The night before the scheduled plea hearing, Nathan said he wanted to take the plea deal. They appeared in court on May 28, 2004, and Nathan entered his guilty plea. (Adm. Ex. 7, p. 7-16) The Respondent said that Nathan's answers to the judge's inquiries were not coerced or
influenced. The Respondent said that, based upon his experience, the plea of guilty by Nathan was the "appropriate thing to do in this case." (Tr. 218-23, 256)
Following the guilty plea hearing on May 28, 2004, the Respondent deposited the $3,000 check he received from Vynomma (Adm. Ex. 6). About 19 days later, the check was returned to him and he learned that Vynomma had stopped payment on the check. He telephoned Nathan, who was on probation. He asked Nathan about the stop payment order on the check. Nathan said he did not know the reason for it and suggested that the Respondent speak to his grandparents. Nathan seemed happy with the Respondent's services and said nothing about an appeal. (Tr. 223-24)
The Respondent telephoned Vynomma and told her he did not understand why she had stopped payment on the check. She told him she was upset because the Respondent "had allowed Nathan to plead guilty." He told her, "I felt that what she had done constituted deceptive practice and that if she wasn't going to re-issue the check that I was going to talk to the state's attorney." He denied telling her she was going to go to jail or using the term "felony." She told him to go ahead and that she was not going to pay him. She did not mention an appeal by Nathan or any proceeding to withdraw his plea. (Tr. 224-26)
The Respondent discussed the stopped payment order with the State's Attorney, and told him "I had half a mind to ask him to file criminal charges." However, the Respondent said he did not ask the State's Attorney to file any criminal action against Vynomma. Also, the Respondent has not filed any civil action against her. (Tr. 227-29)
The Respondent acknowledged that in his initial letter of response to the ARDC (Adm. Ex. 12), he said he asked the State's Attorney to file criminal charges and that he declined to do so. He said he thought the foregoing was true at that time. However, since then, he has discussed
the matter with the State's Attorney on a couple of occasions, and now thinks that he did not request that criminal charges be filed. (Tr. 226-27, 243-48)
The Respondent also acknowledged he did not mention in his letter to the ARDC (Adm. Ex. 12), in his sworn statement to the ARDC, or in his deposition in this matter that he gave the names of two attorneys to Vynomma Brown during their telephone conversation on May 4, 2004. (Tr. 239-40)
The Respondent said that a fee of $3,000 was appropriate for representing Nathan Brown. He quoted the $3,000 figure to Mrs. Brown because that amount "is a pretty standard retainer for a Class II felony offense like that." He also stated that he performed services beyond those of a public defender in the matter. (Tr. 197, 230-31)
Finally, the Respondent acknowledged that he should have filed a written entry of appearance as private counsel for Nathan Brown. He noted, however, it was his recollection he advised the judge before they went on the record that he was private counsel in Nathan's case. (Tr. 231-33, 252-53)
Harlen Cotter testified that he is 58 years of age and is the superintendent of Pontiac Township High School. He was previously a high school teacher and football coach. (Tr. 121-22)
He first met the Respondent in 1972, when the Respondent was in high school, and they have maintained contact since then. Cotter said that the Respondent was a coach in various youth football leagues. Also, over the years, the Respondent provided "wise counsel" to Cotter whenever Cotter was in need of advice or help. (Tr. 122-25)
Finally, Mr. Cotter said that the Respondent has a reputation for being honest and having
great integrity. (Tr. 126)
Ronald K. Fellheimer
Mr. Fellheimer testified by evidence deposition (Resp. Ex. 2) that he has been a licensed attorney since 1964. He is the proprietor of the Fellheimer Law Office in Pontiac. (p. 2-4)
He has known the Respondent since the early 1980s. The Respondent was "very active in youth activities, both junior football, [and] baseball in the summer." Mr. Fellheimer also said that the Respondent is "very charitable." (p. 5-7)
Finally, Mr. Fellheimer said that the Respondent has a good reputation in the legal community for being honest. (Resp. Ex. 2, p. 5)
Roger Dale Newsome
Mr. Newsome testified by evidence deposition (Resp. Ex. 3) that he is 45 years of age, has been in law enforcement with the City of Pontiac for 22 years, and now is Chief of Police. (p. 2-3)
He said that the Respondent was involved in "youth activities throughout the city, baseball and football." Also, he said the Respondent has a very good reputation for honesty and integrity. (Resp. Ex. 3, p. 4-5)
Charles E. Glennon
Charles Glennon testified by evidence deposition (Resp. Ex. 4) that he is 64 years of age and served as resident circuit court judge in Livingston County from 1976 until he retired in 1998. (p. 4-5)
He has known the Respondent since the early 1980s. The Respondent appeared before Judge Glennon "hundreds of times." Judge Glennon said that the Respondent has been "very active in the community," such as at St. Mary's Church and in youth sports. He said that the
Respondent's reputation for honesty and integrity is excellent. (p. 6-8)
Judge Glennon also stated that he saw no difference in the Respondent's representation of his public defender clients and his private clients. (Resp. Ex. 4, p. 11)
David Bernardi testified by evidence deposition (Resp. Ex. 5) that he is 54 years of age and has been a judge in the 11th Judicial Circuit since 1991. He was previously the state's attorney in Livingston County. He has known the Respondent since about 1981. (p. 6-8)
Judge Bernardi said that the Respondent has an excellent reputation for integrity and honesty. (Resp. Ex. 5, p. 9)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Storment, 203 Ill. 2d 378, 390, 786 N.E.2d 963, 969 (2002). This standard requires a high level of certainty, greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 276 (1995). While a finding of misconduct cannot be based solely upon suspicious circumstances (In re Ameden, 380 Ill. 545, 552, 44 N.E.2d 558, 562 (1942)), it can be based upon circumstantial evidence. In re Holz, 125 Ill. 2d 546, 557, 533 N.E.2d 818, 822 (1989).
In determining whether the burden of proof has been satisfied, the Hearing Panel has the responsibility of assessing the credibility and believability of the witnesses, weighing conflicting testimony, drawing reasonable inferences from the evidence, and making factual findings based upon all the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126, 1133 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 N.E.2d 983, 987 (1991). In assessing the evidence the Hearing
Panel is not required to be "naïve or impractical" or to believe testimony that is "beyond human experience," "an unreasonable story," or "an inherent improbability." In re Discipio, 163 Ill. 2d 515, 523-24, 645 N.E.2d 906, 910 (1994); In re Holz, 125 Ill. 2d 546, 555, 533 N.E.2d 818, 821 (1989); Tepper v. Campo, 398 Ill. 496, 504-05, 76 N.E.2d 490, 494 (1948). The Hearing Panel is in a position to judge credibility and weigh conflicting testimony because it is able to ‘see the witnesses [and] observe their demeanor." In re Samuels, 126 Ill. 2d 509, 546, 535 N.E.2d 808, 814 (1989); In re Spak, 188 Ill. 2d 53, 66, 719 N.E.2d 747, 754 (1999).
With the above principles in mind, and after considering the testimony and exhibits, we make the findings set out below.
The misconduct charged in this case arose out of the Respondent's former position as the Public Defender for Livingston County. In April 2004, the Respondent was appointed to represent Nathan Brown in a felony case and, subsequently, was hired to represent Brown as private, paid counsel in the same case.
We first point out that we are not aware of any specific statute or rule prohibiting a part-time public defender in Illinois from switching from appointed status to paid counsel status for the same client in the same case. The presiding judge for Livingston County, Circuit Judge Harold Frobish, testified that the Respondent, while he was a public defender, was allowed to maintain a private practice, and that a public defender is not prohibited from switching from appointed status to privately paid status in the same case. (Tr. 95-96, 105, 109) Also, a former Public Defender for McLean County, Steven Skelton, testified that public defenders who are not full-time employees are permitted to have a private practice and may switch from appointed to privately paid status in the same case. (Tr. 148) In fact, Mr. Skelton said that he had switched from appointed to privately paid status in the same case a "great number of times" during his ten
years as a public defender. (Tr. 149-50)
The cases cited by the Administrator do not support a conclusion that it was unethical for the Respondent to switch from appointed public defender to privately paid counsel in the same case. In In re Chrisler, 98 CH 58, M.R. 16097 (September 29, 1999) (Tr. 263-64), the attorney was a "full time public defender" (Tr. 263, 264, 268) and was, therefore, prohibited from representing clients as a private counsel. Nevertheless, the attorney accepted $1,500 to represent a client while he was employed as a full time public defender and appointed to represent the client. The attorney was criminally charged and convicted of misdemeanor theft, for accepting money to represent a client while he was also being paid by the county to represent the client. Thereafter, he was found to have engaged in the ethical misconduct of committing a criminal act that reflects adversely on his fitness as a lawyer, and of engaging in conduct involving dishonesty. (Hearing Board Report at 1-2, 8-9). Unlike the Chrisler case, the Respondent, as a part-time public defender in Livingston County, was not prohibited from representing clients as private counsel (Tr. 95-96, 109, 117-19, 148-49), and we find no basis for believing he committed a theft during his representation of Nathan Brown.
The cited cases from other jurisdictions are not controlling and contain facts significantly different that those in this case. In In re Bass, 726 N.E.2d 1259 (Ind. 2000) (Tr. 266, 275), the attorney was a public defender appointed to represent a client, and then he accepted a fee to represent the client as private counsel in the same matter. We find nothing in the Bass opinion indicating that a public defender in Indiana is prohibited from switching from appointed to privately paid counsel status in the same case. Rather, the misconduct arose from the attorney's misrepresentations to the trial court regarding his status. For example, at the sentencing hearing, the judge ordered the client to reimburse the county $250 for legal expenses. In response, the
attorney asked for a clarification of the amount, but did not inform the judge that he had been paid a fee to represent the client as private counsel. The Indiana Supreme Court found that the attorney made a false statement to a tribunal "by twice failing to inform the trial court that he had accepted cash payment from the client for private representation, and also engaged in dishonesty." (726 N.E.2d at 1260-61) The Indiana court also found that the attorney obtained an unreasonable fee. The court explained that the client was "ordered to recompense the county for the [attorney's] public defender services," and "[b]y charging the client a legal fee for private representation while at the same time being paid by [the] county to serve as the client's public defender, the [attorney] exacted from her an unreasonable fee." (726 N.E.2d at 1262)
In this case, unlike in the Bass case, the subject of appointed versus private counsel status was not discussed in court, and the Respondent made no false or misleading statements to the court in that regard. In fact, the unrebutted evidence was that the Respondent did tell the trial court judge and the state's attorney, in off-the-record conversations, he had switched from public defender to paid counsel in the case. There was no evidence that the Respondent was or sought to be paid by both his client and the county for the same work.
In In re Hanley, 627 N.E.2d 800 (Ind. 1994) (Tr. 266, 274), the court indicated that a public defender in Indiana could properly switch from appointed to private counsel status.
"The trial court that appointed [Hanley] as Butler's public defender expressly authorized its public defenders to accept private employment by a defendant if, after the court's finding of indigence and subsequent appointment of counsel, the defendant or his family determined that they could afford to hire an attorney on a private basis and specifically wanted to hire the public defender in that capacity." (627 N.E.2d at 801)
The misconduct of Hanley arose out of his negotiations for payment as private counsel from the client's family and making false or misleading statements in doing so. In one letter to the client's family, Hanley wrote: "my representation as a public defender or private counsel will be no
different. However, I think it would be untruthful for me to say I can be as well prepared on a case in which I am appointed as I can be on a private case." In another letter, he stated "[m]y job as a public defender does not require that I report to my clients to tell them what's going on." (627 N.E.2d at 801) Thus, the misconduct in Hanley was not based upon a switch from public defender to privately paid counsel status in the same case.
In In re Relphorde, 596 N.E.2d 903 (Ind. 1992) (Tr. 266, 273-74), the attorney violated ethical rule 1.11(c)(2), which pertains to "successive government and private employment," based upon his negotiating and entering into a fee agreement with his client while he was appointed as public defender to represent the client. (596 N.E.2d at 903) This opinion is very brief and contains very little description of the factual occurrences. In any event, we are not convinced that the Relphorde decision prohibits, per se, a public defender from switching from appointed to privately paid status in light of the statements quoted above from the Hanley decision. In any event, the Respondent in this case was not charged with a violation of Rule 1.11, as in Relphorde.
Finally, in the case of The Florida Bar v. Lange, 711 So.2d 518 (Fla. 1998) (Tr. 266-67, 276), Lange was appointed to represent a defendant in a capital murder case and his fee was limited to $3,500. During deliberations, the jury requested to view the crime scene. Lange did not object "based solely on his personal financial interests." Specifically, Lange "wished to avoid a hung jury since if a retrial occurred, he would remain limited to the original $3,500." (711 So.2d at 520-21) Thus, the facts in Lange are, as stated by the Administrator's counsel, "very different" than this case. (Tr. 266)
The Administrator also provided a copy of a "plan for furnishing representation for persons financially unable to obtain adequate representation" approved by the Judicial Council of
the Seventh Circuit Court of Appeals, and a copy of local rule LR 83.41 of the United States District Court, Northern District of Illinois. The foregoing rules prohibit or limit an appointed counsel from switching to privately paid counsel status. (Tr. 262-63) However, as acknowledged by the Administrator's counsel (Tr. 262-63), the rules are not applicable to practice in Illinois.
Regardless of whether we think the practice of part-time public defenders switching from appointed to privately paid counsel status in the same case presents troubling issues (Tr. 5) or should be prohibited, as suggested by Judge Frobish (Tr. 96, 109, 117-19), there is no precedent prohibiting such practice in Illinois. Also, there is, seemingly, considerable belief that it is an acceptable practice. (Tr. 95-96, 109, 132, 149-50) Consequently, we find no ethical misconduct based upon the Respondent switching from appointed counsel status to privately paid counsel status for the same client in the same case. See In re Corboy, 124 Ill. 2d 29, 45-46, 49, 528 N.E.2d 694, 701, 703 (1988); In re Friedman, 76 Ill. 2d 392, 398-99, 392 N.E.2d 1333, 1336 (1979).
There is, however, a specific ethical rule, Rule 1.4(b), requiring an attorney to explain a matter so that his or her client is able to make informed decisions regarding the representation, and the Respondent was charged with that rule. (Complaint, par. 19(f)) The majority of the Hearing Panel finds clear and convincing evidence to establish that the Respondent violated Rule 1.4(b).
In discussing the requirement in Rule 1.4(a), that an attorney must keep a client "reasonably informed about the status of a matter," the Supreme Court stated that an attorney has the "affirmative duty" to "take necessary steps to keep clients informed about their cases so the clients can make intelligent choices as to the direction of the litigation." In re Smith, 168 Ill. 2d 269, 281-82, 659 N.E.2d 896, 902 (1995) There is a similar affirmative duty imposed by Rule
1.4(b), requiring an attorney to take necessary steps to sufficiently explain matters to a client so that the client can make intelligent choices regarding the representation. It is obvious that, before a client can make an intelligent decision regarding the hiring of an appointed public defender as privately paid counsel in the same case, the client needs to know the difference between the representation to be provided by appointed counsel and by privately paid counsel.
In this matter, Nathan Brown testified that the Respondent said he "would spend more time" on Nathan's case if the Respondent was paid as private counsel. (Tr. 24, 28) Nathan also testified that the Respondent did not tell him "what extra things he would do for [Nathan] if he was paid as a private lawyer," and Nathan did not know. (Tr. 25) Nathan further testified that the Respondent did not say "he would work hard on [Nathan's] case even if [Nathan] didn't pay him." (Tr. 25) Finally, Nathan said the reason he wanted to hire the Respondent was because "I wanted him to work as hard as [he could] to get me out of it." (Tr. 24) Thus, according to Nathan's testimony, the Respondent did not adequately explain the difference in services to be provided by the Respondent as paid counsel and as appointed counsel.
Although the Respondent testified about his conversations with Nathan Brown, he did not mention giving any explanation to Nathan regarding the different type of services he would provide as paid counsel and appointed counsel. The Respondent specifically mentioned that they discussed Nathan's problems in the jail (Tr. 187-89); that Nathan asked the Respondent to call Nathan's grandparents and "bring them up to date on the status of his case" (Tr. 191); that they discussed the discovery material received from the state's attorney (Tr. 192, 202, 205-08); and that they discussed a plea negotiation and the plea offers received from the state's attorney (Tr. 209, 211-15).
Based upon the above testimony, our observation of the witnesses and the overall
circumstances, the majority of the Hearing Panel finds that the Respondent did not take necessary steps to sufficiently explain matters to Nathan Brown so that Nathan was able to make an informed decision regarding his representation.
The Respondent also testified that Nathan's grandparents, particularly his grandmother, Vynomma Brown, decided to hire him as private paid counsel so that he would perform services beyond those required by public defender. Those services included visiting the jail more often, checking on Nathan's well being, and keeping Vynomma informed. The Respondent further testified that he told Vynomma and Carl Brown the legal representation would be the same regardless of whether he was retained or appointed, and that the difference if he was retained would be the "well-being checks on Nathan" and acting as a "conduit between Nathan and his grandparents about how he was doing and how his case was progressing." (Tr. 196-99, 235) The foregoing testimony of the Respondent was contradicted by Vynomma Brown, who testified the Respondent told her that, if he was hired for $3,000, he "will have more time to spend on the case." (Tr. 60-62)
Even if the Respondent did fully and accurately explain to Nathan's grandparents, Vynomma and Carl Brown, the difference in service he would provide as paid counsel for Nathan, he did not comply with Rule 1.4(b). As the Respondent was fully aware (Tr. 217-18), his client was Nathan Brown, not Nathan's grandparents. The Respondent's duty was to keep his client informed and make sure his client had sufficient information to make an intelligent decision about the representation. The Respondent did not perform this duty. It was insufficient and unreasonable for the Respondent to explain a matter to a third party and expect that the third party would then provide, or was even capable of providing, an accurate explanation of the matter to the client.
The majority of the Hearing Panel also finds that the Respondent violated the requirements of Rule 3.3(a)(8), as charged in the Complaint (par. 19(e)). Rule 3.3(a)(8) requires an attorney appearing before a tribunal in a professional capacity to disclose the identity of his or her client and of the person or persons who employed the attorney. In the case of People v. Nathan Brown, Livingston County, No. 04 CF 83, the Respondent was appointed, as public defender, to represent Brown on April 21, 2004. (Adm. Ex. 1, p. 1; Adm. Ex. 3) Thereafter, from about May 4, 2004, when Brown's grandparents told the Respondent "they were going to hire [Respondent] and they were going to send a check" (Tr. 237), until Brown entered his guilty plea on May 28, 2004, the Respondent represented Brown as a retained private counsel. However, the Respondent did not file a written entry of appearance disclosing his change of status or otherwise make such a disclosure on the record.
In accordance with Rule 3.3(a)(8), the Respondent was required to file a written entry of appearance showing that he was appearing on behalf of Nathan Brown as private counsel, employed by Brown's grandparents, and was no longer appearing as the public defender. Alternatively, and with the permission of the court, the Respondent could have made the disclosure by way of an oral entry of appearance made on the record, before a court reporter. The disclosure required in Rule 3.3(a)(8), clearly, must be made in a manner so that there is a record of it in the court file. Thus, a written entry of appearance is preferable because it would show that the disclosure was made, without the need to have any transcript prepared. On the other hand, an off-the-record disclosure to a judge, other court personnel, or the opposing counsel, is insufficient because it would not be documented in the court file and there would be no conclusive proof of it.
We note that it was apparent to Judge Frobish and to former public defender Skelton that an entry of appearance needs to be filed when an attorney changes from appointed to paid counsel status in a case, or the change of status must otherwise be put on the record. (Tr. 95, 99-100, 150-51) Also, the Respondent himself acknowledged that he should have filed a written entry of appearance. (Tr. 231)
The Respondent testified that he told the State's Attorney and the judge about changing from appointed status to private counsel status. However, even if he had disclosed his change of status from appointed counsel to paid counsel during conversations with the State's Attorney (Tr. 131-32, 233) and/or with the judge (Tr. 231-32), he failed to comply with the requirements of Rule 3.3(a)(8). As mentioned above, off-the-record disclosures do not constitute compliance. As explained by Judge Frobish:
"there is no substitute for having the paper in the file. We have a high volume as all counties do. Someone could say something to a judge on one day and three days later it's gone. He has no recollection whether he's been told it's private counsel or not. It needs to be on the record before a court reporter. Someone has a question about it later they can have a transcript made…" (Tr. 99-100)
Additionally, we fail to understand why the Respondent would choose to disclose his change of status to the judge "before we went on the record at the plea hearing" (Tr. 232), rather than disclose it on the record, in the presence of the court reporter.
In regard to the remaining misconduct charged (Complaint, par. 19), the Hearing Panel finds it was not proved by clear and convincing evidence.
We have determined, as discussed above, that there is no prohibition against an appointed public defender from switching to privately paid counsel status in the same case. Consequently, we do not believe that by doing so, the Respondent charged an excessive fee, engaged in dishonesty, breached his fiduciary duties or overreached. (Complaint, par. 19(a), (b), (c), and (d); Tr. 5)
We note that the Respondent testified without contradiction that a fee of $3,000 was "pretty standard" for representing a defendant charged with a Class 2 felony. (Tr. 194, 197) The evidence also indicated that the Respondent represented Brown very well. Even though there appeared to be considerable evidence against Brown (Adm. Ex. 4) and Brown faced a possible prison sentence of seven years (Tr. 194), the Respondent negotiated a guilty plea for Brown to receive probation and to serve only a portion of a 90-day sentence, after receiving credit for 39 days he already spent in the county jail. (Tr. 211-15; Adm. Ex. 7, p. 8, 13-16) Furthermore, the testimony showed that, as private paid counsel, the Respondent may have may performed additional, non-legal services beyond those he normally performed as public defender. (Tr. 146-47, 153, 201-04) Thus, the evidence failed to establish that the Respondent sought or obtained an excessive fee.
Finally, we do not find sufficient evidence to prove that the Respondent engaged in conduct that is prejudicial to the administration of justice or which tends to bring the courts or the legal profession into disrepute. We simply do not believe that nature of the Respondent's misconduct rises to a level sufficient to support such findings. It is significant that what the Respondent did, change from appointed counsel to private paid counsel in the same case, was not improper, but the manner in which he did it was improper.
Thus, for the above reasons, the majority of the Hearing Panel finds that the Administrator proved by clear and convincing evidence that the Respondent engaged in the following misconduct charged in paragraph 19(e) and 19(f) of the Complaint: failed to disclose to a tribunal the identity of the persons who employed the lawyer, in violation of Rule 3.3(a)(8) of the Illinois Rules of Professional Conduct; and failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the
representation, in violation of Rule 1.4(b).
The purpose of the attorney disciplinary system is not to punish an attorney for misconduct, but rather "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981 (2006). In determining the appropriate sanction, we are to consider the nature of the misconduct as well as the aggravating and mitigating factors. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1199-1200 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000); In re Gorecki, 208 Ill. 2d at 361, 802 N.E2d at 1200.
Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 1135 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473, 479 (1994).
The Administrator requested the sanction of suspension for a period of at least 90 days. (Tr. 267) The Respondent requested that the charges be dismissed and did not suggest an appropriate sanction. (Tr. 279)
In this case, the majority of the Hearing Panel found that two charges of misconduct were proved. First, the Respondent failed to sufficiently explain a matter to a client so that the client was able to make informed decisions about the representation. Specifically, the Respondent did not explain to his client Nathan Brown the additional services the Respondent would provide if
he was hired as private counsel for Brown rather than continue to represent Brown as the appointed public defender. Second, the Respondent failed to properly disclose to the court, by either a written entry of appearance or an oral appearance made on the record, that he was commencing to represent Nathan Brown as private counsel, being hired by Brown's grandparents, and was no longer representing Brown as public defender or being paid by the county to represent him.
In aggravation, we consider that the Respondent's misconduct involved his relationship with a client and he did not recognize his misconduct or show any remorse for it. See In re Gerard, 132 Ill. 2d 507, 541, 548 N.E.2d 1051, 1065 (1989) ("unethical conduct, especially in attorneys' relationships with clients, must not and will not be taken lightly by the profession or by this court"); In re Lewis, 138 Ill. 2d 310, 348, 562 N.E.2d 198, 214 (1990) (showing "no remorse" and "failure to comprehend the wrongfulness of his actions" are aggravating factors).
On the other hand, there is substantial mitigation in this case. The Respondent has been a licensed attorney for more than 25 years and has had no prior discipline (Administrator's Report Regarding Prior Discipline, filed November 27, 2006). His misconduct occurred in one case in an otherwise distinguished career. There was evidence that the Respondent has been involved in community activities. (Tr. 123-24, 177-79, 182; Resp. Ex. 2, p. 5-6; Resp. Ex. 3, p. 4; Resp. Ex. 4, p. 7) Additionally, the Respondent presented very impressive character witnesses who testified about his favorable reputation for honesty and integrity. The character witnesses included the State's Attorney of Livingston County (Resp. Ex. 1, p. 9-10); a former Assistant State's Attorney (Tr. 133); the Superintendent of Pontiac Township High School (Tr. 126); a Pontiac attorney who has known the Respondent for about 25 years (Resp. Ex. 2, p 5); the Chief of Police for the City of Pontiac (Resp. Ex. 3, p. 4-6); a retired Circuit Court Judge (Resp. Ex. 4, p. 7-8); and a
sitting Circuit Court Judge (Resp. Ex. 5, p. 9).
We also consider that, as a consequence of his misconduct, the Respondent was forced to resign from his position as public defender and, as a result, his annual salary and benefits were reduced by about $70,000. (Tr. 104, 115) In In re Armentrout, 99 Ill. 2d 242, 457 N.E.2d 1262 (1983), an elected State's Attorney engaged in a fraudulent scheme to forge signatures on petitions seeking a statewide referendum. (99 Ill. 2d at 245, 251-54, 457 N.E.2d at 1263-64, 1266-67) In determining the appropriate discipline the Supreme Court considered in mitigation the consequences suffered by the attorney from his misconduct. Those consequences included that he "was convicted and fined for the misconduct;" he "did not seek reelection as State's Attorney, and what was a promising political career has apparently been terminated;" and he "suffered substantial financial and professional loss." (Armentrout, 99 Ill. 2d at 256, 457 N.E.2d at 1268).
While recognizing that each disciplinary case is unique, we found the following cases instructive as to the appropriate sanction in this case.
In In re Fisher, 15 Ill. 2d 139, 153 N.E.2d 832 (1958), the attorney obtained from his client an assignment of her alimony. Thereafter the attorney filed four petitions to increase the alimony, but did not disclose to the court the foregoing assignment to him. The Supreme Court stated that the attorney's "failure to make candid and forthright disclosure of the existence of the assignments to the court alone subjects him to criticism." Also, "[b]y taking the assignments and failing to disclose their existence to the courts he created the very condition he should have avoided." The attorney was censured. (Fisher, 15 Ill. 2d at 140, 150-51, 155, 153 N.E.2d at 834, 839, 841)
In In re Lada, 69 Ill. 2d 581, 373 N.E.2d 301 (1978), the attorney represented the husband in a divorce proceeding. Upon the attorney's advice, the husband gave the attorney a 30-day promissory note for about one-half of the husband's equity in the marital residence owned jointly with his wife. The purpose of the note was apparently to give the attorney some security for his fee and to "give him a ‘wedge' in protecting [the husband's] interests at the divorce trial." About two weeks before the divorce trial, the attorney obtained a judgment by confession on the above note and filed a memorandum of judgment with the recorder of deeds, thereby placing a lien on the marital residence. Following a 2-day divorce trial, the court awarded the marital residence to the wife. The attorney, pursuant to the court's order, then delivered a quit claim deed to her. The attorney did not inform the court that he had obtained a judgment lien on the marital residence. (69 Ill. 2d at 583-85, 373 N.E.2d at 301-02)
The Supreme Court in Lada, stated that the attorney's failure to inform the court of his lien on the marital residence fell short of being a fraud upon the court, but "we do not think it comported with accepted professional standards" and it was "improper." The Court noted that "a different situation would be presented if the respondent had intentionally misled the court by stating that the title of the property was free from any encumbrance." In mitigation, the attorney was 61 years of age and had not been previously disciplined. A censure was imposed. (Lada, 69 Ill. 2d at 585-86, 373 N.E.2d at 202-03)
In two of the cases from other jurisdictions cited by the Administrator (Tr. 266), the attorneys received reprimands for their misconduct. In In re Hanley, 627 N.E.2d 800 (Ind. 1994), the attorney was appointed to represent a client as public defender and then, while negotiating for payment of a fee to represent the client, the attorney wrote letters to the clients family stating "my job as public defender does not require that I report to my clients to tell them what's going
on" and "it would be untruthful for me to say I can be as well prepared on a case in which I am appointed to represent the defendant as I can be on a private case. The Indiana Supreme Court stated that the attorney's letters "seriously misstate the obligation of a public defender to his client." The Court further stated that a reprimand "will serve to educate other attorneys that misconduct of this type will not be tolerated." (627 N.E.2d at 801-02) In In re Relphorde, 596 N.E.2d 903 (Ind. 1992), the attorney also received a reprimand, where he collected a fee to represent a defendant after he had been appointed as public defender to represent him.
We also note the case of In re Bass, 726 N.E.2d 1259 (Ind. 2000), cited by the Administrator (Tr. 22). In Bass, the attorney twice misled the court into believing he had not received a fee from the client, even after the court had ordered the client to reimburse the court for public defender services. He also made a false statement during the disciplinary investigation. Bass' misconduct, which involved dishonesty, was more egregious than in this case, and he had received a reprimand in a previous disciplinary matter. A suspension of 60 days was imposed. (726 N.E.2d at 1260-63)
In In re Grigsby, 00 SH 58, M.R. 18695 (May 22, 2003), the attorney failed to keep his client informed as to the lack of merit of his pro se post-conviction claims and did not give the client an opportunity to provide additional information to support the claims; and the attorney failed to provide competent representation at a post-conviction proceeding in the trial court and on the appeal. (Hearing Board Report at 8-12) In recommending a reprimand, the Hearing Board noted in mitigation that the attorney had a distinguished legal career for 15 years with no prior disciplinary history; several character witnesses, including three judges, testified on his behalf; the misconduct did not involve dishonesty, and, although the representation was inadequate, the attorney "did actively work on behalf of his client." (Hearing Board Report at 12-13) The
Hearing Board concluded "[w]e believe that a reprimand will adequately protect the public, deter the Respondent from engaging in similar misconduct, allow him to continue to practice law in the manner that has been viewed favorably by judges and fellow attorneys for many years, and maintain the public's confidence in our profession." (Hearing Board Report at 14) The Supreme Court ordered the attorney reprimanded, as recommended by the Hearing Board. (Grigsby, M.R. 18695, May 22, 2003). See also In re Magro, 02 CH 58 (attorney was reprimanded where he represented both parties to a real estate transaction without advising them of his conflict of interest).
We believe that a reprimand in this case will be sufficient to protect the public and the integrity of the legal profession, and will serve to deter the Respondent and others from engaging in similar misconduct.
Therefore, the following Reprimand will be issued to the Respondent on June 29, 2007, at 9:30 a.m, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois.
Date Entered: April 18, 2007
|Paul C. Hendren, Chair, with Panel Member Richard J. Mark, concurring|
PARTIAL CONCURRENCE AND DISSENT
I agree with the majority that the misconduct charged in paragraph 19, subparagraphs (a), (b), (c), (d), (g) and (h) of the Complaint was not proved by clear and convincing evidence.
However, I respectfully disagree with the majority's conclusions that the misconduct charged in paragraph 19 (e) and (f), that is a failure to disclose to the court the identities of the
persons who employed the lawyer (Rule 3.3(a)(8)), and a failure to explain a matter to a client to the extent necessary for the client to make informed decisions about the representation (Rule 1.4(b)), was sufficiently proved. I conclude that the misconduct charged in paragraph 19 (e) and (f) was not proved by clear and convincing evidence.
The testimony of Nathan Brown was crucial to the finding of the misconduct under Rule 1.4(b). However, I did not find him to be a credible witness, and I am unable to conclude that his testimony constitutes clear and convincing evidence. Likewise, I did not find the testimony of Nathan Brown's grandmother, Vynomma Brown, to be believable. She was very angry with the Respondent because he assisted Nathan in pleading guilty when, in her view, he was innocent. (Tr. 63-64, 78, 164)
On the other hand, I found the Respondent to be very credible. According to the Respondent, he fully explained to Vynomma Brown the additional services he would provide as private counsel (i.e. make more visits to the jail to check on Nathan and keep Vynomma informed of Nathan's welfare and the progress of the case), and that she agreed to hire him for those additional services. (Tr. 196-97, 1999) It is clear that Nathan spoke with his grandparents by telephone during this period and was aware of their decision to hire the Respondent. (Tr. 49-50) Also, the Respondent testified that thereafter, during the approximately 24-day period until the guilty plea, he visited Nathan in the jail on six occasions and spoke with him by telephone on five or six other occasions. (Tr. 203-04, 236)
In regard to the disclosure required under Rule 3.3(a)(8), the Respondent's uncontradicted testimony was that he told both the state's attorney and the judge that he had been hired to represent Nathan Brown as private counsel. (Tr. 231-33) A former assistant state's attorney corroborated that such disclosure was made to the state's attorney. (Tr. 131-32)
Consequently, there was no intent by the Respondent to mislead the court or hide the fact that he had been hired as private counsel for Nathan Brown. While it may have been better practice to file a written entry of appearance disclosing his change of status from appointed to private counsel, I find no ethical violation in the circumstances of this case. If a written or other on-the-record disclosure is required by Rule 3.3(a)(8), the Respondent's conduct in this case was merely a technical violation that would not call for discipline.
I also think it is important to express my view that the Respondent's representation of Nathan Brown was outstanding. Brown faced a possible seven-year prison sentence on two counts of the Class 2 felony of aggravated criminal sexual abuse against a 15-year old girl on two separate occasions. (Adm. Ex. 2) Despite the fact that there appeared to be considerable evidence against Brown (Adm. Ex. 4; Am. Ex. 7, p. 3), the Respondent negotiated a guilty plea, which resulted in Brown receiving probation and serving about 50 days in jail, after being given credit for 39 days on a 90-day jail sentence. (Adm. Ex. 7, p. 8)
In regard to the sanction recommended by the majority, I would not disagree with a reprimand if the misconduct charged under Rules 1.4(b) and 3.3(a)(8) had been sufficiently proved.
|Julian C. Carey, Panel Member|
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
JAMES ALBERT CASSON,
Commission No. 06 SH 23
To: James Albert Casson
1. You are being reprimanded for failing to sufficiently explain a matter to your client, Nathan Brown, so that the client was able to make an informed decision regarding your representation of him as appointed counsel or as privately paid counsel, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct. Additionally, you are being reprimanded because you failed to disclose to a court, either by written entry of appearance or by an on-the-record oral appearance, that you had commenced representing Nathan Brown as private counsel, being hired by Brown's grandparents, and was no longer representing him as the public defender, in violation of Rule 3.3(a)(8) of the Illinois Rules of Professional Conduct.
2. You have not been previously disciplined, you did not act with any dishonest motive, and you have a good reputation for honesty and integrity.
3. Your misconduct as described in the Report and Recommendation was improper and cannot be condoned. Therefore, you are reprimanded and admonished not to repeat the conduct that has resulted in the imposition of this discipline.
4. You are advised that while this reprimand is not formally presented to the Supreme Court, it is not to be taken lightly. This reprimand is a matter of public record and is on file with
the Attorney Registration and Disciplinary Commission and may be admitted into evidence in subsequent disciplinary proceedings against you.
5. Because reprimands are now public, it is the hope and desire of this Hearing Board Panel that this reprimand will discourage you and other attorneys from engaging in the same or similar misconduct.
Date Entered: June 29, 2007
|Paul C. Hendren, Chair, with Panel Member Richard J. Mark, concurring|