Filed August 1, 2007

In re Lonnie L. Lutz
Commission No. 06 SH 81

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; 2) breaching a fiduciary duty; 3) overreaching the attorney-client relationship; 4) failing to explain a matter to the extent reasonably necessary to permit a client to make an informed decision regarding the representation; 5) charging an excessive fee; 6) engaging in conduct that is prejudicial to the administration of justice; and 7) 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, 8.4(a) (4) & (5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION: Charges dismissed.

DATE OF OPINION: August 1, 2007.

HEARING PANEL: Richard W. Zuckerman, Judith N. Lozier, Albert O. Eck, Jr.

RESPONDENT'S COUNSEL: Rodney L. Smith.

ADMINISTRATOR'S COUNSEL: Denise Church.

BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

LONNIE L. LUTZ,

Attorney-Respondent,

No. 1711687.

Commission No. 06 SH 81

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on April 10, 2007, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois, before a Panel of the Hearing Board consisting of Richard W. Zuckerman, Chair, Judith N. Lozier, lawyer member, and Albert O. Eck, Jr., public member. The Administrator was represented by Denise Church. The Respondent was present and was represented by Rodney L. Smith.

PLEADINGS

On November 29, 2006, the Administrator filed a one-count Complaint against the Respondent. The Complaint alleged that the Respondent was the Coles County Public Defender, was paid an annual salary, and agreed to accept all public defender cases assigned to him. He was permitted to accept cases outside of his employment with Coles County.

On October 22, 2003, the Respondent, in his capacity as public defender, was appointed to represent Max G. McCall in the case of People v. McCall, Coles County No. 03 CF 532. McCall was charged with possession of more than 30 grams but less than 500 grams of cannabis with intent to deliver. McCall's bond was paid by a third party and McCall was released from custody.

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Shortly after being appointed, the Respondent concluded that the case would most likely be resolved by a plea of guilty, in light of the fact that McCall had confessed to the police that the cannabis found in his residence belonged to him.

On about February 18, 2004, McCall went to the Respondent's office. During their meeting, the Respondent told McCall that it would be in McCall's "best interests" to hire the Respondent as private counsel. The Respondent also pointed at large filing cabinets and said to McCall "your file is in their somewhere." He then pointed to a small filing cabinet and said to McCall "if you hire me your file will go into the little one." The Respondent did not advise McCall that the Respondent had a duty to competently and diligently represent him free of charge or advise him to seek advice of independent counsel in regard to the change of the Respondent's representation from appointed to privately retained.

Thereafter, McCall hired the Respondent as private counsel, paid him $1,000 in cash, and assigned the bond to the Respondent. The Respondent ultimately received $1,159 from the bond.

On February 19, 2004, the Respondent filed an entry of appearance as private counsel for McCall. On February 23, 2004, the Respondent and McCall appeared in court, and the jury trial setting was vacated by agreement. On March 15, 2004, the Respondent and McCall again appeared in court, and the matter was scheduled for an "open plea" on April 7, 2004. On April 7, 2004, the Respondent and McCall appeared in court, and McCall entered an open plea of guilty. Subsequently, on July 7, 2004, McCall was sentenced to nine years in prison.

Based upon the above, the Administrator alleged that the Respondent committed the following misconduct: (a) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct; (b) breached his fiduciary duty to Max McCall; (c) overreached the attorney-client relationship by

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entering into new terms of representation without adequate disclosures; (d) failed to explain a matter to Max McCall to the extent necessary to permit McCall to make an informed decision regarding the representation, in violation of Rule 1.4(b); (e) charged an excessive fee, in violation of Rule 1.5; (f) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and (g) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

The Respondent filed an Answer on December 26, 2006, in which he admitted some of the factual allegations, denied others, and denied all of the charges of misconduct.

THE EVIDENCE

The Administrator presented the testimony of Max McCall by videotape evidence deposition, and the Administrator's Exhibits 1 through 6b and 8 (as redacted) were received into evidence. (Tr. 12-20, 147-48) The Respondent testified in his own behalf and presented the testimony of eight other witnesses. The Respondent's Exhibits 1a through 7a, and 10a through 14a were received into evidence. (Tr. 150)

Max McCall

Max McCall gave a videotape evidence deposition on March 30, 2007 (Adm. Ex. 6b), which was viewed by the Hearing Panel (Tr. 15-16). A transcript of the deposition was received into evidence (Adm. Ex. 6a). The following page references are to Administrator's Exhibit 6a.

McCall testified that he is 55 years of age, and is incarcerated at the Graham Correctional Center. He has a 5th grade education. Prior to his incarceration he lived in Mattoon, and had worked at a pool hall, an apple orchard, and as a junk hauler. He also said he has two children under the age of 18 years. (p. 5-7, 21, 23)

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In 2003, McCall was arrested after cannabis was found in his residence. He then confessed to the police that the cannabis belonged to him. He was charged with unlawful possession of cannabis with the intent to deliver. (Adm. Ex. 5, p. 1-2) A third party paid his bond of $1,500, and McCall was released from custody. (p. 7, 9, 11, 24, 28)

Subsequently, in October 2003, the Respondent, as public defender, was appointed to represent McCall. (Adm. Ex. 1, p. 1) McCall said that he then spoke with the Respondent three or four times in person, and a "couple of times" by telephone. (p. 7-8, 28, 31-32)

McCall said that on one of his appearances in court, the prosecutor, Tim Willis, said "he wasn't going to deal with me." Then, outside the courthouse, the Respondent told McCall not to worry, that the prosecutor was "just show boating." The Respondent's comment "put [McCall] at ease." The Respondent also told McCall that the "judge wasn't down on the weed." McCall thought this meant that he might get a "lighter sentence." On another occasion, in the Respondent's office, McCall asked "three or four times" what sentence he might receive, and the Respondent "was quiet for a minute and then said a couple." McCall thought this comment meant he would get a sentence of two years. (p. 9-11, 30, 31)

On a Saturday in early 2004, McCall told the Respondent that he (McCall) was going to talk with another attorney, named Todd Reardon. McCall then talked with Reardon. Reardon said he could not do much for McCall because McCall had given a confession to the police. (p. 12-14, 28-30)

A few weeks later, McCall went to the Respondent's office and the Respondent said "it would be [McCall's] best option to hire him." The Respondent also said that McCall's file was "over there somewhere," while pointing to "four or five filing cabinets, maybe or more." The Respondent then said "if you hire me your file will go over in the little one," while pointing to a

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"one-drawer [cabinet] on a table." McCall said he decided to hire the Respondent because he thought the Respondent would then "take more interest in my case" and because it was his "impression" that he would get a "lesser sentence." McCall acknowledged, however, that the Respondent did not tell him there would be a lesser sentence if McCall paid the Respondent. (Tr. 15-17, 30, 34, 40-41)

McCall said he borrowed $1,000 from his family and friends, and paid it to the Respondent on February 18, 2004. On the same date, he assigned his bond to the Respondent. (p. 16-17, 40, 43; Adm. Ex. 2 and 3)

The Respondent did not tell McCall about any "reason not to hire him as private counsel" or that Respondent "would work just as hard as [the] public defender." (p. 17)

McCall appeared in court with the Respondent on March 15, 2004, when the case was continued to April 7, 2004, for an "open plea." (Adm. Ex. 1, p. 1) On April 7, 2004, McCall entered an "open" guilty plea. He said he understood that an "open plea" meant that the sentence would be up to the judge. However, he said "I thought [Respondent] knew what he was doing" and that "somehow the sentence was already worked out." The judge asked McCall if he was satisfied with the representation by the Respondent, and he said yes. (p. 17-18, 33-35, 39-40, 42-43)

Prior to the sentencing hearing in July 2004, the Respondent told McCall to get people to write letters on his behalf, he said the "more the better." McCall acknowledged that between the date of his plea and the date of the sentencing hearing, he "knew that there wasn't a deal worked out." However, he said he "still thought [Respondent] knew what he was doing." McCall did not try to withdraw his plea during this time period. (p. 32-33, 36)

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McCall said that he knew the possible sentence range was from two to ten years. On July 7, 2004, the judge sentenced him to nine years. Thereafter, McCall filed a motion to withdraw his guilty plea and another attorney was appointed to represent him. The motion to withdraw was denied. McCall said he was not happy with the services of the attorney who represented him on the motion to withdraw. (p. 18-19, 31, 35-37; Adm. Ex. 1, p. 1-2)

McCall said he felt angry toward the Respondent for accepting "pay from [McCall] even though he was already paid as the public defender." He also said "I paid him money and he didn't do anything." (p. 20)

Finally, McCall said that he had an "extensive criminal record since 1998" and that he understood his credibility could be impeached by his prior felony convictions. (p. 20, 27-28, 74-75)

Respondent

The Respondent testified that he is 57 years of age, resides in a rural area near Charleston, is married, and his four daughters are in college. His wife works part-time as a substitute teacher. He served in the U.S. Army in the late 1960s. He was licensed to practice law in 1977. Since January 1978, he was worked in the Coles County Public Defender Office. He has no previous discipline. He has been involved in local bar associations, the Jaycees, the VFW, and with girls softball when his daughters were younger. (Tr. 83-86, 123-24)

From January 1978 until July 2006, the Respondent was a public defender in Coles County, and was permitted to have a private practice. He maintained a private practice, consisting mainly of criminal, traffic, and juvenile cases. He became a full-time public defender in July 2006, and since then has not been allowed to have a private practice. (Tr. 85-88, 123)

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In 2003, the Respondent received on annual salary of about $50,000 as public defender. There were five other public defenders in Coles County at that time, and they also maintained a private practice. (Tr. 86-87)

In October 2003, the Respondent received notice that he had been appointed to represent Max McCall, and was informed of the next court date. (Resp. Ex. 2) The Respondent was familiar with McCall, who he had represented previously. At the first court appearance, on October 27, 2003, the Respondent spoke with McCall. Subsequently, the Respondent had meetings with McCall, who was on bond, and appeared at several court proceedings with him. (Tr. 89-95, 97, 103-04; Resp. Ex. 1, p. 1)

The Respondent said that, early in his representation of McCall, McCall asked about hiring a private attorney. The Respondent told him that it was McCall's decision to make, and provided McCall with the names of attorneys in the area who practiced criminal law. The Respondent said he was not aware if McCall contacted any of those attorneys. (Tr. 97-98)

Sometime after December 2003, McCall was at the Respondent's office and they discussed McCall hiring the Respondent. The Respondent told McCall that his fee would be $1,000 plus the remainder of the posted bond. McCall said he would think about it. Subsequently, in February 2004, McCall returned to the Respondent's office, paid him $1,000, and signed an assignment of the bond. (Resp. Ex. 6, 13) On the following day, February 19, 2004, the Respondent filed an entry of appearance as the private counsel for McCall. (Resp. Ex. 5) The Respondent said that McCall did not give him a specific reason for hiring him. (Tr. 99-101, 106-07)

The Respondent explained that he has a number of four-drawer file cabinets in his office, and that his public defender files and private files are kept separately. However, he said he

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"never had a separate one-drawer file cabinet or any file cabinet on my desk." In fact, he said "I would have had his file out on the desk so I could refer to it while I was talking with Max." (Tr. 101-02, 105, 130-31)

The Respondent denied telling McCall that McCall's file would go into a small, one-drawer cabinet if he hired the Respondent; saying he would pay more attention to his case if McCall hired him; or making a joke about his public defender files as compared to his private files. Also, the Respondent denied telling McCall that he would get a lesser sentence if he hired the Respondent. (Tr. 105-06, 110, 128)

When asked if he told McCall about the difference between a private pay representation and a public defender representation, the Respondent replied "yes." He went on to say:

"In not just as myself as private counsel, but the perception that I thought frequently the State's Attorneys, in my opinion, would have if a person goes into court privately represented, that they may see that person already paying, if you will, some additional penalty by having to expend fees or funds of their own to have to go out and obtain counsel.

But I said that, something like that in a general statement if you will. Not specifically Max, if you give me X number of dollars, the State's Attorney is going to look at you in a more favorable light."

The Respondent acknowledged that he later found out that the prosecutor in McCall's case "did not share that perception." (Tr. 131-32)

While the Respondent told McCall that he could talk to any private attorney if he wanted to, the Respondent did not specifically advise McCall to seek advice of independent counsel in regard to hiring the Respondent as private counsel. (Tr. 133-34)

When asked if he changed his fee agreement with McCall, the Respondent said "no." He pointed out that he was appointed to represent McCall and was paid by Coles County to do so, not by McCall. The Respondent then entered into a private attorney-client relationship with McCall. (Tr. 134)

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The Respondent further testified that he realized that McCall would be found guilty if there was a trial because cannabis was found in McCall's residence pursuant to a valid warrant and McCall admitted to the police that the cannabis "was his and he had been in the business of distributing same." He said he discussed this with McCall, and McCall "was aware of the situation," including that he could receive a sentence between two to ten years. The Respondent tried to negotiate a guilty plea, but the prosecutor refused to make a reasonable offer and indicated he was "going to seek a sentence [at] the high end." (Tr. 108-09, 144-45)

The Respondent thought that the sentence for McCall would be in the "low to mid sentencing range." He noted that, even though McCall had an extensive criminal record, the charge involved cannabis, not hardcore substances such as methamphetamine or cocaine. After discussing the matter with McCall, they decided that McCall would enter an open plea. The Respondent said that he did not tell McCall that there was any agreement or arrangement with either the prosecutor or the judge as to the sentence. (Tr. 108-10, 128, 137-38, 145)

On March 15, 2004, the Respondent and McCall were in court when the matter was continued to April 7, 2004. On April 7, 2005, they again appeared in court. The judge admonished McCall and accepted his open plea of guilty. At that time the judge asked McCall if he was satisfied with the Respondent's representation and he replied "yes." The sentencing hearing was then set for July. (Tr. 111-13, 128; Resp. Ex. 1, p. 1)

In regard to the sentencing hearing, the Respondent told McCall to find some positive character witnesses to testify or to submit letters. Also, the Respondent and McCall discussed what McCall could mention in his allocation. Prior to sentencing, McCall did not mention withdrawing his guilty plea. (Tr. 114-16, 129)

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At the sentencing hearing, the prosecutor asked for the maximum sentence of 10 years, and the Respondent asked for about three years. The judge imposed a sentence of nine years. The sentence was a "surprise" to the Respondent. McCall was "upset" about the sentence. (Tr. 116-17, 138-40)

Subsequently, McCall filed a pro se motion to withdraw his guilty plea and another attorney was appointed to represent him. He also sent a letter to the Respondent requesting a return of the fee. The Respondent did not reply. (Tr. 117-18, 129)

The Respondent said that on previous occasions he had been hired by clients after he had been appointed, as public defender, to represent them. He said that such a situation did not occur too often, perhaps a "couple of times a year if that much." He also said he was aware that other public defenders have done the same thing. (Tr. 118-19, 140-41)

On cross-examination, the Respondent explained that the judges in Coles County "always assess a public defender fee" against the defendants who are represented by a public defender. Such fee goes to Coles County, not to the Respondent. He estimated that the highest public defender fee that might be assessed in a drug case was $500. He is not aware of any such fee in the amount of $2,500. (Tr. 132, 135-37)

Finally, the Respondent said that, if he were suspended from the practice of law, he could possibly lose his job as public defender. (Tr. 122)

Ronald Tulin

Ronald Tulin testified that he is an attorney and has been in private practice in Charleston since 1975. His practice includes criminal defense work. Before going into private practice, he was a public defender in Coles County. He said that on a "few occasions" he was appointed to represent a client and then was hired as private counsel. Also, he has been aware of other public

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defenders switching from being appointed counsel to being retained as private counsel in the same case. (Tr. 22, 26)

Mr. Tulin has known the Respondent since the 1980s. He said that the Respondent has a good reputation for truth and veracity. (Tr. 26-28)

He further testified that he is also aware of Max McCall's reputation for truth and veracity, and that it is poor. (Tr. 25-26)

David Joe Plummer

David Joe Plummer testified that he has lived in Coles County for 53 years. He was a police officer in the City of Mattoon for 28 years, and retired as chief of police. He now works as an investigator for the United States Department of Justice. (Tr. 32-33)

He said he has known Max McCall for a number of years, and that McCall's reputation for truth and veracity is poor. (Tr. 33, 36-37)

Mr. Plummer said he has known the Respondent professionally for 20 to 25 years, and that the Respondent has a good reputation in the community. (Tr. 37-38)

Adam James Weinstock

Mr. Weinstock testified that he has lived in Coles County for about 13 years and has been a police officer in the City of Mattoon since 1997. (Tr. 40-41)

He said he is familiar with Max McCall, and that McCall's reputation for truth and veracity is very poor. (Tr. 42-43)

Mr. Weinstock also testified that he has known the Respondent for about 11 years, and that the Respondent's reputation for truth and veracity is excellent. (Tr. 43-44)

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Jeffrey Branson

Mr. Branson testified that he has been a police officer in the City of Mattoon since 1989. He is currently a captain in the investigations division. (Tr. 46)

He said he has known the Respondent since 1989 and that the Respondent has a reputation for being very honest. (Tr. 49-50)

Scott Standerfer

Mr. Standerfer testified that he has been a police officer since 1983. He is currently an inspector with the Illinois State Police and the squad leader for the drug task force that covers Coles County. He has lived in Coles County for about 7 years. (Tr. 52)

He said he is familiar with Max McCall and that McCall's reputation in the community for truth and veracity is very poor. (Tr. 53)

He also knows the Respondent, and said that the Respondent's reputation for truth and veracity is extremely high. (Tr. 55)

Paul C. Komada

Judge Komada testified that he has lived in Coles County since 1969. He was elected State's Attorney for Coles County in 1974, and remained in that position until he was elected to the office of Circuit Court Judge in 1980. He served as Circuit Court Judge until he retired in 2001. (Tr. 57-58)

While he was a judge, the public defenders in Coles County were permitted to maintain a private practice. There were occasions in which a public defender was appointed to represent a defendant and then was hired as private counsel by that defendant. He said that he had no problem with the foregoing situation. He also explained such a switch typically occurred "where

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somebody was raising questions about the accuracy of the defendant's affidavit that had been filed to obtain the services of the public defender. (Tr. 62, 70-71)

Judge Komada also stated that he is not aware of any rule that prohibits a public defender from switching from appointed counsel to privately retained counsel. When a public defender was hired privately, a written entry of appearance was filed. (Tr. 62-63)

Judge Komada said he is familiar with Max McCall and that McCall's reputation for truth and veracity is bad. (Tr. 59) Finally, Judge Komada said that he has known the Respondent since at least 1980, and that the Respondent's reputation for truth and veracity is excellent. (Tr. 64)

Edward Dean Johnson

Mr. Johnson testified that he was City of Mattoon Police Officer from 1979 to 2003. Since February 2006, he has been an investigator for the Coles County Public Defender. In that position, he works with all five of the public defenders, including the Respondent. (Tr. 76-79)

Mr. Johnson said that the Respondent has a reputation for being a trustworthy person. (Tr. 79)

Mr. Johnson said he is also familiar with Max McCall, and that McCall has a reputation for not being a truthful person. (Tr. 77-78)

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). The clear and convincing standard requires a high level of certainty, which is greater than a preponderance of the evidence (i.e. more probably true than not true), but not as great as proof beyond a reasonable doubt. See Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647

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N.E.2d 273, 276 (1995) 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).

With the above principles in mind, and after considering all of the evidence, we make the following findings.

The charges of misconduct in this matter arose out of the Respondent's representation of Max McCall in a criminal case in Coles County. The Respondent was the public defender for Coles County and was permitted to have a private practice. (Tr. 85, 61-62) The Respondent was appointed as public defender to represent McCall, and then became McCall's privately paid counsel in the same matter.

The pertinent facts are that on October 17, 2003, a search warrant was executed for McCall's residence, and about 200 grams of cannabis was seized. A set of scales, a box of plastic sandwich bags, and about $2,000 in cash were also found during the search. Following his arrest, McCall was given "Miranda" warnings, and then admitted to the police that the cannabis belonged to him and that "he sells cannabis in 1/8 oz bags for $20.00." (Resp. Ex. 2a, p. 2)

McCall was charged with possession of 30 to 500 grams of cannabis with the intent to deliver, in violation of 720 ILCS 550/5(d). (People v. McCall, 03 CF 532, Coles County). The sentencing range for the offense was 2 to 10 years in prison. (Resp. Ex. 7a, p. 1, 2-3) On October 22, 2003, the Respondent was appointed to represent McCall. (Resp. Ex. 1, p. 1) Subsequently, on February 19, 2004, the Respondent entered his appearance as private counsel for McCall in the same case. (Resp. Ex. 1, p. 1; Resp. Ex. 5a) On April 7, 2004, McCall entered an "open" plea

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of guilty, which meant that the sentence "would be up to the judge" without any agreed sentence by the parties. (Adm. Ex. 6a, p. 35) On July 7, 2004, McCall was sentenced to 9 years imprisonment. (Resp. Ex. 1, p. 1)

We first address the practice of a public defender being hired by a defendant after having been appointed to represent the defendant in the same case. We do not believe this is a good practice, but raises questions regarding conflict of interest, breach of fiduciary duty and over-reaching, among others. Also, such practice tends to give credence to the belief that an appointed attorney would provide better service to a client if he or she is paid and retained as private counsel. Nevertheless, as further explained below, we find no basis for concluding that the Respondent violated ethical rules by switching from appointed public defender to retained counsel for Max McCall in the matter before us.

We found no rule or statute that expressly prohibits a public defender from representing a client as paid counsel after having been appointed in the same case. On the other hand, the uncontradicted testimony was that public defenders in Coles County have been engaging in this practice for more than 30 years. (Tr. 22-23, 26, 63, 118-19) A former presiding judge for Coles County testified that he had been aware of the practice and "did not have a problem with [it]." (Tr. 61-63)

The same issue was recently before another Hearing Board Panel in In re Casson, 06 SH 23. There was no appeal in Casson, and a reprimand was issued by the Hearing Board. (Casson, Hearing Board Report at 39-40) We concur with the following statements of the Hearing Panel in the Casson matter

"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 or should be prohibited, as suggested by [the presiding judge for the county], there is no precedent prohibiting such practice in Illinois.

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Also, there is, seemingly, considerable belief that it is an acceptable practice. 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." Casson, 06 SH 23, Hearing Board Report at 25 (citations omitted).

The Administrator argued that the above practice may be found to be unethical even in the absence of a specific ethical rule prohibiting it. The Administrator pointed out that there is no rule specifically prohibiting "an attorney from making misrepresentations to his client" or from "convert[ing]" their client's [funds]." (Tr. 155) We agree there may be ethical misconduct in certain instances not expressly covered by a specific rule. For example, in In re Rinella, 175 Ill. 2d 504, 514-15, 677 N.E.2d 909, 914 (1997), the Court rejected the attorney's contention that he could not be sanctioned "for engaging in sexual relations with his clients because no disciplinary rule specifically proscribes such conduct." In finding that the attorney engaged in ethical misconduct, the Court said "we do not believe that respondent, or any other member of the bar, could reasonably have considered the conduct involved here to be acceptable behavior under the rules governing the legal profession." Similarly, in In re Rotman, 136 Ill. 2d 401, 556 N.E.2d 243 (1990), the Court indicated that no attorney could reasonably believe conversion to be acceptable conduct. "All the experience in the world would be of no benefit to any attorney faced with the decision whether or not to convert client funds entrusted to his or her case. It is a simple rule, easy of application and admitting of no exception: do not steal your client's money." (136 Ill. 2d at 420, 556 N.E.2d at 251-52).

In regard to making misrepresentations to a client, we believe such conduct is clearly prohibited by Rule 8.4(a)(4), which states that an attorney shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Numerous opinions of the Supreme Court have defined dishonesty or fraud (i.e. In re Armentrout, 99 Ill. 2d 242, 251, 457 N.E.2d 1262, 1266 (1983)) so that any attorney would know that a misrepresentation to a client is an ethical

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violation. In addition, the Court has expressly stated that the lack of candor with or misleading statements to a client constitutes dishonesty. See In re Ring, 141 Ill. 2d 128, 143, 565 N.E.2d 983, 988-89 (1990); In re Levin, 101 Ill. 2d 535, 539-40, 463 N.E.2d 715, 717 (1984).

We do not view the practice of a public defender switching from appointed to paid status to be so obviously unacceptable as engaging in sexual relations with clients, converting client funds, or making false statements to clients. Public defenders throughout Illinois have engaged in the practice for many years, and both public defenders and judges familiar with the practice did not believe it to be prohibited. (Tr. 22-23, 26, 118-19; In re Casson, 06 SH 23, Hearing Board Report at 8, 10-11) Thus, there was no "guidance of precedent or settled opinion" that such practice was prohibited and "there was, apparently, considerable belief among members of the bar" that such practice is proper. See In re Corby, 124 Ill. 2d 29, 45, 528 N.E.2d 694, 701 (1988) Consequently, we find no misconduct based upon the Respondent switching from appointed to retained counsel for Max McCall.

The cases cited by the Administrator do not support a finding of misconduct in this matter. For example, in In re Chrisler, 98 CH 58, M.R. 16097 (September 29, 1999), a public defender accepted a monetary fee from a client while, at the same time, being paid by the county to represent him, and was convicted of theft for doing so. (Hearing Board Report at 1-2, 8-9) There is no claim in the matter before us that the Respondent engaged in theft or any other criminal conduct, or accepted payment from both a client and the county for the same work. We find no language in the Hearing Board Report in Chrisler that suggests a public defender, who is authorized to engage in private practice, is prohibited from being retained by a defendant after having been initially appointed to represent the defendant in the same case. Similarly, we do not find the cases from other jurisdictions cited by the Administrator to be factually similar or

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persuasive. (See discussion of those cases in In re Casson, 06 SH 23, Hearing Board Report at 22-24)

The charge that the Respondent engaged in dishonesty, fraud, deceit or misrepresentation was based upon the allegation that the Respondent misled McCall into believing the Respondent would work harder, or do a better job, for McCall if the Respondent was paid as private counsel. (Tr. 155) We do not find clear and convincing evidence that the Respondent misled, or intended to mislead, McCall in this regard.

The only testimony in support of the charge of dishonesty or misrepresentation came from McCall. However, we did not find McCall to be a credible witness. In addition to his overall demeanor, his credibility was impeached by his prior felony convictions. (Adm. Ex. 6a, p. 20; Adm. Ex. 8) Also, an attorney, a retired judge, and four police officers testified that McCall's reputation for truthfulness was poor. (Tr. 25-26, 59, 37, 42-43, 53, 77-78) No witness gave any positive testimony regarding McCall's reputation for truthfulness. Additionally, McCall was angry with the Respondent for the sentence McCall received in the criminal case. (Adm. Ex. 6a, p. 20) Finally, the testimony of McCall, regarding what the Respondent said and did, was vague and suspect in light of the facts and circumstances shown by the overall evidence.

We first note that McCall did not claim that the Respondent made any specific statement about spending more time on McCall's case or that the result would be better, if McCall hired the Respondent. (Adm. Ex. 6a, p. 17) Instead, McCall's testimony showed that he "interpret[ed]," obtained an "impression" from, and "thought" certain things based upon general statements and actions of the Respondent. (Adm. Ex. 6a, p. 10, 11, 16, 17, 18, 34) McCall made no attempt to ascertain whether his inferences were accurate. Although McCall did not have a great deal of formal education (Adm. Ex. 6a, p. 21; Adm. Ex. 8, p. 4), he did have extensive

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experience with attorneys and the criminal justice system. (Adm. Ex. 6a, p. 20, 27) We found McCall to be very savvy as to his criminal case and the outcome he was trying to achieve. As mentioned above, the police seized cannabis from McCall's residence pursuant to a search warrant and McCall admitted to the police that the cannabis belonged to him and that he sold cannabis. (Resp. Ex. 2a, p. 2; Adm. Ex. 6a, p. 7, 9) Thus, it was obvious from the outset of the case that a finding of guilty was almost certain (Tr. 151), and that the main focus was on the possible sentence McCall would receive. (Adm. Ex. 6a, p. 10, 11, 17)

We find it difficult to believe that McCall, with his experience and his knowledge that the possible sentence would be between 2 and 10 years imprisonment (Adm. Ex. 6a, p. 31), would simply infer or presume certain things about the outcome of his case from general statements and actions of the Respondent without asking for clarification or specifics.

We also find suspect McCall's testimony that he thought the Respondent's comments indicated McCall would receive a sentence of two years. (Adm. Ex. 6a, p. 10, 31, 33) Two years was the minimum imprisonment sentence possible. Yet, McCall had, as he himself acknowledged (Adm. Ex. 6a, p. 27), an "extensive criminal record." McCall had received a three year sentence for a possession of cannabis offense in 1999 (Resp. Ex. 14; Adm. Ex. 8) and a two year sentence for aggravated criminal sexual abuse in 2001. (Adm. Ex. 8, p. 4) In these circumstances, it is difficult to believe that McCall actually thought he would receive the lowest possible imprisonment sentence.

McCall's testimony about what occurred in the Respondent's office when the topic of retained counsel was discussed, even if accurate, fails to constitute clear and convincing evidence of any misrepresentation or dishonesty by the Respondent. McCall testified that the Respondent said it would be McCall's "best option" to hire the Respondent. (Adm. Ex. 6a, p. 15,

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34) The Respondent, on cross-examination, was asked if he told McCall about the difference between a private pay representation and public defender representation. The Respondent replied "yes", and went on to say he explained to McCall that he thought State's Attorneys frequently took into account that, "if a person goes into court privately represented," the person had already paid some penalty by expending funds to obtain counsel. The Respondent clarified that he never told McCall "if you give me X number of dollars, the State's Attorney is going to look at you in a more favorable light." The statement by the Respondent regarding his being hired as the "best option," if made, was a statement of strategy in the circumstances of McCall's criminal case. No testimony was presented to show that the Respondent's strategy was unreasonable. Also, the fact the strategy was not ultimately successful did not show that it was unreasonable or dishonestly presented to McCall. Thus, rather than being dishonest or deceitful, the Respondent simply explained to McCall a possible benefit of hiring him.

McCall further testified that, while he was in the Respondent's office, the Respondent pointed to about five, 4-drawer filing cabinets in the office and said that McCall's file was "over there somewhere." Then the Respondent said, if McCall hired him, McCall's file "will go over in the little one," while he pointed to a "one drawer" filing cabinet "on a table." McCall also said that the Respondent "laughed after he said it." (Adm. Ex. 6a, p. 15-16) Thereafter, McCall hired the Respondent as private counsel.

As mentioned above, McCall did not claim that the Respondent made any specific comment about working harder if McCall hired him. Rather, McCall said it was his "interpret[ation]" and "impression" the Respondent would "pay more attention" to McCall's case and there would be a "lesser sentence" if McCall hired him. (Adm. Ex. 6a, p. 16-17) At the time of the above meeting in the Respondent's office, McCall already knew that there was no

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significant matter to be investigated or presented regarding his guilt, and that the only issue was the possible sentence. Also, prior to the meeting with the Respondent, McCall had talked with another attorney, Todd Reardon, about the criminal case. Reardon, after being informed of McCall's admissions to the police, told McCall "he couldn't do anything for him." (Adm. Ex. 6a, p. 13, 14, 29) In these circumstances, it is not clear what McCall could gain by the Respondent spending more time as to the guilt phase of a trial, and McCall provided no explanation. Thus, we find it difficult to believe that McCall hired the Respondent to spend more time on his case.

McCall also said that he thought, by paying the Respondent, he would get a lesser sentence. (Adm. Ex. 6a, p. 17) However, McCall's claimed belief that he would receive a two-year sentence came from a conversation he had with the Respondent prior to any discussion about hiring the Respondent as private counsel. (Adm. Ex. 6a, p. 10-11, 31, 33) Furthermore, McCall testified that, at the time he decided to hire the Respondent, he thought the Respondent already had worked out a sentence with the prosecutor. Specifically, McCall was asked "what did you think again that you would be getting by paying Mr. Lutz." In response, McCall said a "lesser sentence. I thought he had everything worked out with Mr. Willis [the prosecutor]." (Adm. Ex. 6a, p. 17) Thus, according to McCall's own testimony, he believed the Respondent had already reached a sentence agreement with the prosecutor before McCall hired the Respondent as private counsel. In these circumstances, there was no reason for McCall to hire the Respondent in order to work out a lesser sentence when McCall believed that a lesser sentence had already been worked out.

The Respondent denied making any references to the file cabinets as McCall asserted; denied telling or suggesting to McCall he would pay more attention to the case if he was paid; denied telling McCall there would be a lesser sentence if he was hired; and denied indicating to

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McCall that the sentence would be a "couple" of years. (Tr. 105-06, 110, 128) Another attorney, a retired judge, and five police officers testified that the Respondent had a good reputation for truth and veracity. (Tr. 27-28, 64, 137-38, 43-44, 49-50, 55, 79) We found the Respondent to be a credible witness.

Based upon the above, we do not find clear and convincing evidence that the Respondent engaged in dishonesty, fraud, deceit or misrepresentation as charged in the Complaint.

The Respondent was also charged with breaching his fiduciary duty to Max McCall. (Complaint, par. 18b) An attorney's fiduciary duty to a client requires "undivided fidelity," "good faith," and "loyalty." In re Winthrop, 219 Ill. 2d 526, 543-44, 848 N.E.2d 961, 972-73 (2006); In re Imming, 131 Ill. 2d 239, 252-53, 255, 545 N.E.2d 715, 721, 722 (1989) As discussed above, we found insufficient proof of the charge that the Respondent engaged in dishonesty or deceit toward McCall. Also as discussed above, we found no prohibition against a public defender, who is authorized to engage in private practice, representing a defendant as appointed counsel and then retained counsel in the same case. Thus, we do not find a per se breach of fiduciary duty when a public defender switches from appointed counsel to retained counsel in the same case. Additionally, we find no clear and convincing evidence that the Respondent otherwise acted contrary to the best interests of McCall. Thus, we conclude that the charge of breach of fiduciary duty was not proved.

The Respondent was also charged with overreaching his attorney-client relationship with McCall. (Complaint, par. 18c) Overreaching occurs when an attorney takes undue advantage of or abuses the position of influence he or she holds in relation to a client. See In re Rinella, 175 Ill. 2d 504, 516, 677 N.E.2d 909, 915 (1997); In re Crane, 96 Ill. 2d 40, 57-58, 449 N.E.2d 94, 101-02 (1983). The specific charge against the Respondent was that he overreached "by entering

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into new terms of representation without adequate disclosures." (Complaint, par. 18c) In support of this charge, the Administrator cited the opinion in In re Marriage of Pagano, 154 Ill. 2d 174, 607 N.E.2d 1242 (1992). (Tr. 157) In Pagano, a party to a dissolution of marriage matter retained an attorney, and then subsequently the client and the attorney reached an agreement that effectively changed the original fee agreement. The Supreme Court stated that "when an attorney once retained, enters into a transaction with a client, it is presumed that the attorney exercised undue influence." (154 Ill. 2d at 185, 607 N.E.2d at 1247) Contrary to the suggestion of the Administrator, we do not believe the evidence showed that the Respondent changed a fee agreement after he had been retained by McCall. The Respondent's representation of McCall as appointed counsel was not pursuant to a fee agreement with McCall, but rather was pursuant to an employment contract the Respondent had with Coles County. Thus, the Respondent did not change any fee agreement he had with McCall because the only fee agreement the Respondent had with McCall was after McCall decided to hire the Respondent as private counsel. (Tr. 134) Thus, we do not believe it is clear that the principles set out in Pagano were meant to apply to a situation similar to the Respondent's representation of McCall.

We also find no clear and convincing evidence that the Respondent used or attempted to use any deceit or undue influence against McCall, or otherwise took advantage of his position as McCall's attorney in order to be hired as private counsel. (Tr. 153) It is noteworthy that McCall's own testimony showed that he considered hiring private counsel and, in fact, spoke with another attorney about private representation before this subject was discussed with the Respondent. (Adm. 6a, p. 12-14, 28-29: Tr. 97-08) Consequently, the charge that the Respondent overreached the fiduciary relationship was not proved.

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The Respondent was also charged with failing to provide a sufficient explanation to permit McCall to make an informed decision regarding the representation. (Complaint, par. 18d) On cross-examination, the Respondent was specifically asked if he "ever talk[ed] to [McCall] about the difference between a private pay representation and a public defender representation." The Respondent replied "yes." He then went on to explain that he informed McCall about the Respondent's belief that sometimes prosecutors will view defendants who have private counsel as "already paying, if you will, some additional penalty by having to expend fees or funds of their own to have to go out and obtain counsel." (Tr. 131) Consequently, the Respondent testified that he did discuss the difference between private counsel and a public defender with McCall, and that he indicated to McCall that a prosecutor might consider the fact that a defendant expended money to hire counsel when considering the sentence to recommend. Based upon the Respondent's testimony in reply to the question asked on cross-examination, and in the absence of any other credible testimony in this regard, we do not find clear and convincing evidence that the Respondent failed to sufficiently explain to McCall the possible benefit of hiring private counsel in his criminal case.

Finally, the Respondent was charged with obtaining an unreasonable fee. (Complaint, par. 18e) As discussed above, we found no prohibition against a public defender, who is authorized to engage in private practice, from being hired to represent a defendant after having been appointed in the same case. Based on the foregoing finding, we do not believe an unreasonable fee is charged, or that the Respondent could have reasonably known he was charging an unreasonable fee, by the mere fact of a public defender switching from appointed counsel status to privately paid status for the same defendant in the same case, as suggested by the Administrator. (Tr. 156) We do not find any of the Indiana cases cited by the Administrator

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(Tr. 156, 158-59) to support such as per se rule. (See In re Casson, 06 SH 23, Hearing Board Report at 22-24)

We further find no basis in the evidence for concluding that the fee of $2,159 obtained by the Respondent (Adm. Ex. 1, p. 2; Adm. Ex. 2 and 3) was unreasonable or excessive. First, there was no testimony that such a fee was unusual for representation in a criminal case similar to McCall's. McCall was charged with possession of between 30 and 500 grams of cannabis with intent to deliver, made critical admissions to the police, faced a maximum imprisonment sentence of 10 years, and had an extensive criminal record. (Adm. Ex. 6a, p. 27, 31) McCall ultimately received a sentence of 9 years. (Adm. Ex. 6a, p. 18)The Respondent filed his entry of appearance as private counsel for McCall on February 19, 2004. (Adm. Ex. 4) Thereafter, the Respondent appeared in court on behalf of McCall on at least five occasions. (Adm. Ex. 1, p. 1-2) McCall stated that he spoke with the Respondent three or four times in person and a "couple of times" by telephone. (Adm. Ex. 6a, p. 7, 8, 31-32) While it is not clear how many of the communications were after the Respondent became private counsel, it seems reasonable to infer that some were. It is clear that the Respondent spoke with McCall sometime between the date of the guilty plea, April 7, 2004, and the date of sentencing, on July 7, 2004, and advised McCall to get people to write letters on his behalf for use at the sentencing hearing. (Adm. Ex. 6a, p. 32-33, 36) Further, the Respondent attempted to negotiate a guilty plea result, without success. (Tr. 108-09, 144-45) It is also likely that the Respondent reviewed the pre-sentence report, which was filed on June 30, 2004, and spent some time preparing an argument, which the Respondent presented to the court at the sentencing hearing. (Adm. Ex. 1, p.1) Finally, we state the obvious that the reasonableness of a fee is not dependent on the ultimate outcome of a client's case. In

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fact, a contingent fee is prohibited for representing a defendant in a criminal case. (Rule 1.5(d)(2))

Consequently, the Administrator has not satisfied the burden of proving by clear and convincing evidence that the Respondent obtained an excessive fee.

For the reasons set out above, we conclude that the evidence was not sufficient to prove, clearly and convincingly, that the Respondent committed the misconduct charged in the Complaint. Therefore, we recommend that the charges against the Respondent be dismissed.

Date Entered: August 1, 2007

Richard W. Zuckerman, Chair, with Panel Members Judith N. Lozier, and Albert O. Eck, Jr. concurring