BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

DAVID K. ELLIOTT,

Attorney-Respondent,

No. 6303239.

Commission No. 2018PR00056

FILED --- July 26, 2018

 

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Tammy L. Evans, pursuant to Supreme Court Rule 753(b) and 761(c), complains of Respondent, David K. Elliott, who was licensed to practice law in the State of Illinois on November 4, 2010, and alleges that Respondent has engaged in the following conduct which subjects him to discipline pursuant to Supreme Court Rule 770:

COUNT I
(Offering false evidence to a tribunal, making a false statement to a tribunal, and dishonesty)

1. At all times alleged in this complaint, Respondent resided in Illinois.

2. Pursuant to section 3-104 of the Illinois Vehicle Code ("Code") (625 ILCS 5/1-100 et seq. (2012)), the application for a certificate of title for a vehicle in the state of Illinois must be made by the owner to the Secretary of State on the form prescribed and must contain the following:

a.  name, Illinois residence, mail address, and, if available email address of the owner;
b.  a description of the vehicle including, so far as the following data exists:
                 i.    make
                 ii.   year-model
                 iii.  identifying number
                 iv.  type of body
                 v.   whether the vehicle is new or used
c.  date of purchase by the applicant, and, if applicable, the name and address of the person from whom the vehicle was acquired and the names and addresses of any lienholders in the order of their priority and signatures of owners; the current odometer reading at the time of transfer
     and that the stated odometer reading is one of the following:
                 i.    actual mileage
                 ii.   not the actual mileage
                 iii.  mileage is in excess of its mechanical limits
e.  any further information the Secretary of State reasonably requires to identify the vehicle and enable him to determine whether the owner is entitled to a certificate of title and the existence or nonexistence of security interests in the vehicle.

The application for a certificate of title must be accompanied by either a receipt from the Department of Revenue showing that any tax so imposed has been paid or a tax exemption determination from the Department of Revenue.

3. Pursuant to section 3-112(b) of the Code, when an owner transfers his interest in a vehicle, the transferee shall, promptly and within 20 days after delivery to him of the vehicle and the assigned title, execute the application for a new certificate of title and cause the certificate and application to be mailed or delivered to the Secretary of State.

4. Pursuant to section 3-501 and 3-502 of the Code, when an owner of a registered vehicle transfers or assigns his title to that vehicle to another individual, the registration of the vehicle expires upon the transfer of the title. The transferee must apply for and obtain registration for the vehicle within 20 days from the date of purchase, and before operating that vehicle upon a highway.

5. On or about November 18, 2014, Respondent purchased a 2011 Jaguar ("Jaguar")  from Ryan Henrichs ("Henrichs"). Respondent did not apply for a new certificate of title or register the Jaguar with the Secretary of State until August 21, 2015.

6. On November 30, 2016, Respondent purchased a 2003 Cadillac ("Cadillac") from Dylan Bechtold. As of December 13, 2016, Respondent had not applied for a new certificate of tile or registered the Cadillac with the Secretary of State.

7. On December 13, 2016, Respondent was driving the Cadillac on North Main Street in Edwardsville, Illinois. Andrew Feller ("Feller"), an Edwardsville police officer, stopped Respondent for talking on his cellphone while driving. The officer discovered that the license plates on Respondent's Cadillac were registered to the Jaguar, and that Respondent had not yet applied for or obtained registration for the Cadillac. Respondent told the officer that he just purchased the Cadillac on the previous day and had not yet registered the vehicle in his name. The officer requested proof of insurance, but Respondent did not provide proof of insurance for the Cadillac. The officer issued Respondent three citations: a) operating an uninsured motor vehicle without having proof of insurance for the Cadillac; b) improper registration for not registering the Cadillac with the Secretary of State, and c) improper use of an electronic communication device for talking on his cellphone while driving.

8. Respondent's statement to the officer that he had purchased the Cadillac the previous day was false because he purchased the Cadillac on November 30, 2016.

9. At the time Respondent made the statement to Feller alleged in paragraph 7, above, Respondent knew that the statement was false.

10. On December 21, 2016, Respondent registered the Cadillac with the Illinois Secretary of State.

11. The hearing on the three citations was set for January 11, 2017, in the Circuit Court of Madison County.

12. On or before January 11, 2017, Respondent altered an outdated insurance card of the prior owner of the Jaguar to reflect that JW Insurance Group provided insurance coverage for the Cadillac effective December 3, 2016.

13. Respondent's alteration of the card was false because Respondent had not obtained insurance for the Cadillac.

14. On January 11, 2017, Respondent appeared in the Circuit Court of Madison County regarding the three traffic citations he received on December 13, 2016. In court, Respondent produced the altered insurance card to Assistant State's Attorney Phillip Voss ("Voss").

15. At the time Respondent tendered the altered insurance card to Voss, Respondent did not have insurance on the Cadillac, and Respondent knew that the insurance card falsely represented that he had such coverage for the Cadillac on the date of the citation.

16. Upon receiving the fraudulent insurance card, Voss agreed to the dismissal of the citation for operating an uninsured motor vehicle. Respondent received 90-days court supervision and a fine for both the improper use of an electronic communication device and the improper registration citations.

17. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. knowingly offering evidence that the lawyer knows to be false, by conduct including altering and tendering to Madison County Assistant State's Attorney Voss a fraudulent proof of insurance card, in violation of Rule 3.3(a)(3) of the Rules of Professional Conduct (2010);

  2. engaging in conduct involving dishonesty fraud, deceit, or misrepresentation, by conduct including making a false statement to Madison County Assistant State's Attorney Voss and a false statement to Edwardsville police officer Feller, and delivering to Voss a fraudulent proof of insurance card that Respondent altered and presented as his own, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010); and

  3. engaging in conduct that was prejudicial to the administration of justice, by conduct including, making a false statement to Madison County State's Attorney Voss and making a false statement to Edwardsville police officer Feller, and delivering to Voss a fraudulent proof of insurance card that Respondent altered and presented as his own, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

COUNT II
(Perjury conviction-April 6, 2018)

18. The Administrator realleges paragraphs 1 through 16 in Count I, above.

19. At all times alleged in this complaint, Section 32-2 of the Illinois Criminal Code (720 ILCS 5/1-49 et seq. (2012)), made it a Class 3 felony offense to make a false statement, under oath or affirmation, in a proceeding or in any other matter where by law the oath or affirmation is required, material to the issue or point in question, knowing the statement is false.

20. On August 21, 2015, Respondent submitted an "Affirmation of Correction" to the Illinois Secretary of State in which he represented that the original date of sale listed on the title for the Jaguar was August 21, 2015. The Affirmation indicated that the sale date of November 18, 2014, had been entered in error and that the correct sale date was August 21, 2015. Respondent signed his name on the form and signed Henrichs' name without Henrichs' authorization.

21. Respondent's affirmation that the original date of sale was entered in error was false because Respondent purchased the Jaguar on November 18, 2014.

22. At the time that Respondent submitted the Affirmation to the Secretary of State, Respondent knew that his affirmation that the original date of sale was entered in error was false because he purchased the Jaguar from Henrichs on November 18, 2014.

23. On February 9, 2017, the Madison County State's Attorney filed a 2-count criminal complaint against Respondent. In Count I, the State's Attorney charged Respondent with making a false statement under oath or affirmation regarding the date of a vehicle sale which Respondent knew was false (perjury), a Class 3 Felony. In Count II, the State's Attorney charged Respondent with knowingly delivering a document (proof of insurance card) to a Madison County State's Attorney with the intent to defraud (forgery), a Class 4 Felony. The case was docketed in Madison County as The People of the State of Illinois vs. David K. Elliott, with the case number 17 CF 403.

24. On April 6, 2018, Respondent pled guilty to the charge in Count I of case number 17 CF 403. The prosecutor dismissed Count II. The court sentenced Respondent to probation through TASC (Treatment Alternatives for Safe Communities) for 12 months and ordered Respondent to pay a $1,500 fine and complete 30 hours of public service.

25. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, by conduct including committing the offense of perjury, in violation of 720 ILCS 5/32-2, in violation of Rule 8.4(b) of the Illinois Rules of Professional Conduct (2010); and

  2. engaging in conduct involving dishonesty fraud, deceit, or misrepresentation, by conduct including, committing the offense of perjury, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

COUNT III
(Making false statements of material fact to a third person-Det. Kris Tharp and dishonesty)

26. The Administrator realleges paragraphs 1 through 16 in Count I, and paragraphs 19 through 24 in Count II, above.

27. On January 18, 2017, Madison County State's Attorney First Assistant Jennifer Mudge contacted Detective Kris Tharp ("Tharp") of the Madison County Sheriff's office, and asked Tharp to investigate Respondent's conduct described in Count I, above.

28. On or before February 2, 2017, Tharp undertook an investigation of the matters referred to him by Mudge.

29. On February 2, 2017, Tharp met with Respondent regarding Respondent's conduct described in Count I, above.

30. On February 2, 2017, Respondent represented to Tharp that he had an insurance policy with JW Insurance Group for the Cadillac, and that he initiated the policy when he purchased the car on November 30, 2016.

31. Respondent's statement that he had an insurance policy with JW Insurance Group was false because Respondent did not have an insurance policy with JW Insurance Group for the Cadillac on February 2, 2017 or at any earlier time.

32. At the time Respondent represented to Tharp that he had an insurance policy with JW Insurance Group for the Cadillac, Respondent knew his statement was false.

33. On February 2, 2017, Respondent represented to Tharp that he could produce policy information and copies of the checks he used to pay the insurance premium.

34. Respondent's statement that he could produce policy information and copies of the checks he used to pay the insurance premium was false because Respondent did not have an insurance policy with JW Insurance Group and he had not paid insurance premiums to JW Insurance Group.

35. At the time Respondent told Tharp that he could produce policy information and copies of the checks he used to pay the insurance premiums, Respondent knew his statement to Tharp was false because as of February 2, 2017, Respondent had not purchased insurance for the Cadillac.

36. By reason of the conduct described above, Respondent has engaged in the  following misconduct:

  1. engaging in conduct involving dishonesty fraud, deceit, or misrepresentation, by conduct including knowingly making the false statements described in paragraphs 31 and 34, above, in violation on of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

WHEREFORE, the Administrator requests that this matter be referred to a panel of the Hearing Board of the Commission, that a hearing be held, and that the Hearing Panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Tammy L. Evans
Illinois Attorney Registration and
Disciplinary Commission
3161 West White Oaks Drive, Suite 301
Springfield, IL 62704
Telephone: (217) 546-3523
Email: ARDCeService@iardc.org
Email:
tevans@iardc.org

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Tammy L. Evans
       
Counsel for the Administrator