Filed October 24, 2012
In re G. Ronald Kesinger
Commission No. 2011PR00025
Synopsis of Review Board Report and Recommendation
The Administrator's two-count complaint charged Respondent with misconduct arising out of his representation of two clients, Juvon Mays and Lance Bufford, in criminal cases. With respect to his representation of Juvon Mays, the Administrator charged Respondent with revealing confidential information in violation of Rule 1.6(a), failing to adequately communicate with his client in violation of Rule 1.4(b), failing to competently represent his client in violation of Rule 1.1(a), and engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) and Supreme Court Rule 770. With respect to his representation of Lance Bufford, the Administrator charged Respondent with breaching his fiduciary duty, engaging in overreaching, conversion and engaging in conduct involving dishonesty in violation of Rules 3.3(a)(1) and 8.4(a)(4).
Following a hearing, the Hearing Board issued a report and recommendation. With respect to Respondent's representation of Juvon Mays, the Board concluded that the Administrator failed to prove that Respondent violated Rules 1.1(a), 8.4(a)(5), or Supreme Court Rule 770. However, the Hearing Board found that Respondent that Respondent engaged in misconduct by failing to adequately communicate with his client Juvon Mays who was convicted of home invasion and felony murder, in violation of Rule 1.4(b). Further, the Board found that Respondent breached his duty of confidentiality to Mays in violation of Rule 1.6(a) by sending letters to a prosecutor and to two witnesses in which he made unauthorized statements. One of these letters was used against Mays to support adding the charge of felony murder. With respect to his representation of Lance Bufford, the Board concluded that Respondent engaged in conversion of Bufford's bond refund but did not engage in dishonest conduct. The Board further found that Respondent breached his fiduciary duty and overreached the attorney-client relationship by attempting to renegotiate his fee on the eve of Bufford's trial. In aggravation of the misconduct, the Board noted that Respondent had previously been censured for engaging in a conflict of interest and overreaching. The Hearing Board recommended that Respondent be suspended for a period of six months.
Respondent filed exceptions to the Hearing Board's Report alleging that the Hearing Board erred by finding that he violated Rule 1.6(a) and breached his fiduciary duty. Respondent also argued that the Hearing Board erred by considering in aggravation his prior discipline. Respondent contended that the Hearing Board's sanction recommendation is excessive. The Administrator did not file exceptions.
The Review Board affirmed the findings of the Hearing Board. The Review Board concluded that the Hearing Board properly considered Respondent's prior discipline and the Board recommended to the Court that Respondent be suspended for a period of six months. Given the Review Board's concern about the potential for harm to Respondent's clients, the Board additionally recommended that the Administrator be directed to closely monitor Respondent for compliance with Supreme Court Rule 764.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
G. RONALD KESINGER,
Commission No. 2011PR00025
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter arises out of the Hearing Board's findings that Respondent engaged in misconduct with respect to his representation of two clients, Juvon Mays and Lance Bufford, in criminal cases. The Hearing Board concluded that Respondent failed to adequately communicate with his client Juvon Mays, who was convicted of home invasion and felony murder, and breached his duty of confidentiality to Mays by sending letters to a prosecutor and to two witnesses in which he made unauthorized statements. One of these letters was used against Mays to support adding the charge of felony murder. The Board also concluded that Respondent engaged in conversion, overreaching and breached his fiduciary duty to another client Lance Bufford when he attempted to renegotiate his fee on the eve of a criminal trial, mislead his client about the hours he spent on the matter, and improperly kept his client's bond refund. The Hearing Board recommended that Respondent be suspended for a period of six months.
Respondent contends that the Hearing Board erred by finding that he violated the Illinois Rules of Professional Conduct and breached his fiduciary duty and also by considering in
aggravation his prior discipline. Finally, Respondent contends that the Hearing Board's sanction recommendation is excessive. The Administrator has filed no exceptions. For the reasons noted below, we affirm the findings of the Hearing Board and recommend to the Court that Respondent be suspended for a period of six months. Based on our concern about the potential for harm to his clients we also recommend that the Administrator be directed to closely monitor Respondent for compliance with Supreme Court Rule 764.
RESPONDENT'S REPRESENTATION OF JUVON MAYS
Mays First Story
Juvon Mays was arrested in December 2008 in Champaign County and was charged with first degree murder of his neighbor, Corinthian Spinks. Spinks was killed by a single gunshot while standing in the doorway of his apartment. In May 2009, Respondent agreed to represent Mays for a fixed fee of $15,000.
Mays initially told the Respondent that he was not involved in the murder. He explained that he had returned home one night from work accompanied by two female coworkers, and that they discovered that his apartment had been burglarized. Mays surmised that whoever had killed Spinks had also stolen his property and had framed Mays for the crime by leaving a cap and jacket belonging to Mays at the crime scene.
Mays Changes His Story
On August 26, 2009, five days before the scheduled trial, Respondent met with Mays at the jail. Respondent told Mays "to explain everything to him that happened so he wouldn't go in there blind." Mays then told Respondent that on the night in question, he came home and discovered that his apartment had been broken into and a television, two jackets and Christmas presents were missing. The police were called about the burglary and initially, they
believed that perhaps a maintenance man at the building had taken the items. Later, Mays' cousin, Brian Shaw, informed Mays that his neighbor, Corinthian Spinks, had taken Mays' things. Mays and Shaw then went across the hall to Spinks' apartment and knocked on his door. Shaw had a gun. When Spinks came to the door and saw who was there, he tried to shut the door. A struggle to open the door followed. Shaw's gun then fired striking Spinks and killing him. Mays and Shaw then left the apartment. Mays told the Respondent that the shooting was an accident.
The next day Respondent faxed a letter to Assistant State's Attorney, Duke Harris. In the letter, Respondent described in detail the shooting scenario that Mays had disclosed to Respondent. He informed Harris that his client and Shaw went to Spinks' apartment. Spinks opened the door, but when he saw the defendant and Shaw, he tried to close the door. Mays tried to "put his arm through the door to get in." According to the letter "the door hit the gun which Shaw had in his hand and it discharged" killing Spinks. The Respondent hoped the letter would persuade Harris that a lesser offense charge would be more appropriate for Mays. Respondent explained to the Hearing Board that his letter was "an attempt to get a plea agreement" and to let the assistant state's attorney know what testimony "my client would have to offer," presumably against Shaw. He did not consider that the letter could be viewed as an admission by Mays to the crimes of home invasion or felony murder. He told the Hearing Board that he did not know the felony murder law. On August 27, 2009, in an effort to persuade two witnesses to talk to him the Respondent also sent letters to Kathleen Faber and Roger Brown, in which he disclosed the information Mays had told him about the shooting scenario.
On August 28, 2009, Respondent received an e-mail from Assistant State's Attorney Harris informing the Respondent that Harris was going to file additional charges of home invasion and felony murder against Mays. On August 31, 2009, he did so filing a motion to file the additional charges against Mays. Respondent objected, claimed he was surprised by the new charges and requested a continuance of the trial. At the hearing on the motion, the prosecutor argued that the letter was "tantamount to a confession to a felony murder", that the charges could not come as a surprise to Respondent, and that it was therefore appropriate for the State to add the additional charges.1 The court agreed and granted the State's motion. The court denied Respondent's request for a continuance.
The Trial and Conviction
After jury selection but before opening statements, Respondent made an oral motion to withdraw, which the judge denied. Respondent then tried to persuade Mays not to testify. Mays insisted on testifying. The Hearing Board confirmed this fact by noting that the trial judge admonished Mays that he did not have to testify, but Mays decided to do so anyway.
Mays ultimately testified at his trial. His testimony was apparently consistent with the summary in the Respondent's letter to Harris. The Respondent and Mays attempted to persuade the jury that the shooting was accidental. Consistent with this theory, the Respondent submitted jury instructions on the lesser included offense of involuntary manslaughter which is a class 3 felony with a possible sentence far less than that for murder. In the jury instruction conference the trial judge indicated that he would give an instruction on the lesser included offense. Following the jury instructions conference the prosecutor informed the court that the state was proceeding only on the new charges of home invasions and felony murder and abandoning the original charges of first degree murder. As a consequence, the trial judge
decided that the proposed jury instructions on the lesser included offense were not warranted and they were not given. The jury convicted Mays of home invasion and first degree murder based on felony murder. The court subsequently sentenced Mays to 60 years in prison.
Hearing Board Report
At the time of the hearing in this disciplinary hearing, Mays was appealing his conviction. Since then the Appellate Court issued an opinion affirming Mays' conviction with modifications. But the Appellate Court also remanded the case with directions that the trial court conduct an investigation as to whether the Respondent effectively represented Mays. See, People v. Mays, 2012 IL App (4th) 090840. The Hearing Board found in favor of the Respondent on the Administrator's charge that he failed to competently represent Mays in violation of Rule 1.1 of the Professional Rules of Conduct (the "Rules"). The Hearing Board concluded that "If Mays had not testified, it appears that there would have been no proof of the additional charges of home invasion or felony murder. Thus, there is no clear and convincing evidence before us to prove that the Respondent was responsible for presenting the evidence which resulted in Mays being found guilty of home invasion and felony murder." (Hearing Board Report at p. 19.) Accordingly, the sole issue confronting us, in so far as the Mays case is concerned, is whether Rules 1.4(b) and 1.6(a) were violated.
Rule 1.6(a) Violation
The Hearing Board concluded the Respondent violated Rule 1.6(a) of the 1990 Rule which was the one in effect in 2009. That Rule provided, "Except when required under Rule 1.6(b) or permitted under Rule 1.6(c), a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure." The exceptions under Rule 1.6(b) and
(c) are not applicable to this case. There is also no question that the statements in the letters were confidences or secrets. Consequently, the only issue is whether Mays consented after disclosure.
The Respondent defended the Administrator's claim by asserting that Mays authorized the disclosures in the letters. Mays in his testimony denied that he did so. In his testimony the Respondent admitted that at the time he sent the letters he did not understand the theories of accountability and felony murder. So obviously he never explained them to the client. Also there is no evidence that drafts of the letters or their implication were shared with the client. We do not see a basis for disturbing the Hearing Board's findings as against the manifest weight of the evidence. "Deference is to be accorded to the factual findings of the Hearing Board because the Hearing Board is in a position to observe the witnesses' demeanor, judge their credibility and resolve conflicting testimony." In re Timpone, 208 Ill.2d 371, 380, 804 N.E. 2d 560 (2004).
We agree with the Hearing Board's determination that Respondent failed to make the disclosures to his client that are contemplated by the Rule. The Hearing Board noted that the Rules defined disclosure as "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." The Hearing Board concluded, "There was no evidence that the Respondent ever explained to Mays the possible ramifications of the strategy to disclose the confidential information to the state's attorney." (Hearing Bd. Report at p. 25)
Respondent conceded in his oral argument before this Review Panel that there was no consent after disclosure as contemplated by Rule 1.6. He agreed that because the implications of a felony murder charge were not discussed with Mays before the letters were sent, Mays could not have knowingly consented to the disclosure of the information.
Accordingly, the violation of Rule 1.6(a) is essentially undisputed and the Hearing Board's findings on this violation are affirmed.
The Hearing Board also found that the Respondent violated Rule 1.4(b) of the Rules of Professional Conduct. It provides:
"A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
Clearly based on the facts set forth above, it is clear that the Respondent never did what was required by this rule before sending out the three letters that are the subject of this case. Accordingly, the Hearing Board's findings are affirmed.
RESPONDENT'S REPRESENTATION OF LANCE BUFFORD
In January 2008, Lance Bufford was at the home of a friend, Howard Baker, when the police arrived to execute a search warrant. During the search, the police found 33 grams cocaine in one pocket of a jacket that was hanging on a chair. Bufford's wallet was in another pocket. Police found an additional 133 grams of cocaine in the house. The police then arrested Bufford, Baker, and two other friends who were present in the home, Mario Turner and Courtney Phillips. The Champaign County States Attorney charged each of the four individuals with possession of between 100 and 400 grams of cocaine with intent to deliver.
In February 2008, Bufford posted bond in the amount of $10,000 to secure his release. Bufford received some of the money to post bond from his fianc?, Doris Drew, and he received the remainder from another friend.
Bufford, Turner and Phillips were initially represented by a public defender. In February 2008, they retained Respondent to represent them. Respondent agreed to represent each of the three defendants for a flat fee of $5,000 each. The charges against Turner and Phillips were dismissed about six months later. But the case against Bufford continued.
At Respondent's request, Bufford assigned his bond refund to Respondent. Because the bond refund of $10,000 was greater than Respondent's fee of $5,000, Bufford asked Respondent to provide him with a letter reflecting the fee arrangement. In the letter, Respondent stated, "Please be reminded that you posted $10,000 to be released from jail. Inasmuch as my fee is only $5,000, I will refund to you any amounts left over after deducting the sum of $5,000." (Adm. Ex. 15).
Respondent testified that Bufford gave him the names of three possible witnesses who he claimed would testify that on the date in question, Bufford had been wearing a different jacket than the one in which the police had found the cocaine. Respondent interviewed one of the witnesses, Sharika Johnson, who initially told Respondent that Bufford was not wearing the jacket but then later said if she so testified she would not be telling the truth. Respondent did not interview the other two witnesses about their testimony.
Request for Additional Fees
Bufford's trial was set for February 23, 2009. On February 19, Respondent sent a letter to Bufford seeking additional fees. Respondent explained that he was "getting perturbed" about the number of hours he had spent on Bufford's case, and about the number of hearings he had attended. The letter stated:
I have reviewed your file in anticipation of a trial next Monday. I find that it has been necessary to appear in Court thus far fifteen
times since I first appeared on March 11, 2008. I anticipate I will have to appear on Monday, Tuesday and Wednesday for another twenty-five hours. Since I must expend five hours each time I must appear in Court, fifteen different appearances means seventy-five hours of time. Therefore, I will have expended over one-hundred [sic] hours on your case. When charging by the hour, my customary and usual fee is $250 per hour. This means the legal fee should be $25,000.
I remind you that you paid me $5,000. It is necessary that you assign over the remainder of the Bail Bond in order for me to be adequately compensated for this case. Accordingly, I require that you sign the enclosed Assignment of Bond before I proceed on Monday.
Bufford did not receive this letter until after the February 23, 2009 court date. On the morning of February 23, Respondent met with Bufford and discussed the amount of time he was spending on the case. He showed Bufford a document purportedly showing the hours he had spent on Bufford's matter. He requested the remainder of Bufford's bond refund as a fee. Bufford refused. Bufford testified at hearing that Respondent then replied that the "money [was] signed over to him anyway" and that he was going to tell the judge he had a conflict of interest and ask to withdraw from representing Bufford. Respondent testified that he decided to file a motion to withdraw because Bufford insisted that certain witnesses be called, and the Respondent did not believe the witnesses would testify truthfully. He admitted before the Hearing Board, however, that Bufford's refusal to pay additional fees "played a role" although not a "primary role" in his decision to file a motion to withdraw.
Respondent then filed a motion to withdraw stating as grounds "irreconcilable differences in strategy in that Defendant desires to proceed at trial in a manner that would cause his attorney to violate the Supreme Court Rules of Professional Conduct." (Adm. Ex. 13). The judge asked Bufford if he consented to the motion, and he stated that he did consent. The judge then granted the motion to withdraw and Bufford was given 21 days to hire new counsel.
Bufford hired another attorney, for a fee of $10,000. Bufford's criminal case was dismissed in or about January 2010.
After the dismissal of the case, on February 2, 2010, the Clerk of the Court sent a bond refund check in the amount of $9,000 to Respondent. Respondent cashed the check and retained the entire amount. He testified that when he received the check, he believed that Bufford had signed the entire bond refund over to him. He testified he had checked his file, and saw an unsigned bond assignment and his letter of February 19, 2009, and accordingly he thought he was entitled to the entire refund.
Bufford's fianc?, Doris Drew, testified before the Hearing Board that she went to the Clerk's office in February 2010 to check on the status of the bond refund. Doris Drew testified that she and Bufford had five children and they needed the money from the bond refund, as she was not working at the time. She said she then telephoned Respondent. He told her he had not yet received the bond refund but would call her when he did. When she did not hear from him, she called him again. Respondent informed her he was not going to give any of the bond refund to Bufford and "he got off the phone rather quick."
In February 2010 the Respondent sent Bufford a letter stating that he had spent over 100 hours on the case and indicating that his customary fee was $250 an hour. Attached to the letter was a document that showed thirteen court appearances for five hours each. The five hours included his travel time of four hours to and from Champaign. At his disciplinary hearing, Respondent agreed that for the first eight appearances, he also was in court representing co-defendants Mario Turner and Courtney Phillips. The document also showed that Respondent charged five hours of time to draft a two page discovery motion and ten hours to draft a one page response to a motion for the joinder of the cases and to appear on the motion.
Respondent testified he did not intentionally convert the funds. He testified that at that time he had a "lot of things on my plate" and was distracted. He was going through a divorce in 2010 and was caring for two teenage daughters. He also noted that he has trouble with his memory given his age.
Mr. Bufford subsequently filed a charge against Respondent with the ARDC. Sometime thereafter, Respondent claims he then realized that he might not have been entitled to the entire bond refund. He checked with the Clerk's Office in Champaign County and determined that Bufford had not signed over the remainder of his bond to him. He testified he was "mortified". He sent a letter to the ARDC indicating that his memory was faulty, and he sent a check to Bufford for $4,000. Bufford received the check, along with an apology from Respondent, in March 2011.
Hearing Board Report
With respect to his Respondent's representation of Bufford, the Hearing Board found that Respondent engaged in overreaching the attorney-client relationship and thereby breached his fiduciary duty to Bufford in his attempts to renegotiate his fee. The Hearing Board also found that Respondent engaged in conversion but concluded that Respondent did not act with a dishonest motive.
Respondent contends that the Hearing Board erred when the Board found that Respondent breached his fiduciary duty to Lance Bufford by attempting to renegotiate his fee just prior to trial. Respondent argues that the Hearing Board erred because he cannot be found to have breached a fiduciary duty without a finding that he had dishonest or improper motives. However, an attorney can breach his fiduciary duty to a client even in the absence of evidence that the attorney acted with dishonest motives. See, e.g., In re Mason, 09 CH 15 (Review Bd.,
Sept. 2, 2011), recommendation adopted, No. M.R. 24927 (Nov. 22, 2011) (attorney breached fiduciary duty by accepting a testamentary bequest from his client, even though attorney did not act with dishonest intent or take advantage of the client).
An attorney has a fiduciary duty to his client requiring undivided loyalty, fidelity and good faith. Overreaching occurs when an attorney takes advantage of or abuses the position of influence the attorney holds in relation to a client in order to derive a benefit to himself. In re Rinella, 175 Ill.2d 504, 516, 677 N.E.2d 909 (1997). When an attorney, during the course of the representation, attempts to enter into an agreement with the client to modify the fee agreement to increase the amount of the fees, there is a presumption that the attorney exercised undue influence. In re Marriage of Pagano, 154 Ill.2d 174, 185, 607 N.E.2d 1242 (1992). See also, In re Lutz, 06 SH 81 (Review Bd., June 4, 2008), recommendation adopted, No. M.R. 22544 (Sept. 17, 2008).
In this matter, Respondent decided that he no longer wished to honor his initial fee agreement with Bufford. Clearly he had an obligation to do so. See, e.g., In re Crane, 96 Ill. 2d 40, 449 N.E.2d 94 (1983). He also had an obligation to inform the client that he was required to do so absent an informed consent which might require the client having independent counsel. See, e.g., In re Marriage of Pagano, 154 Ill. 2d 174, 185, 607 N.E.2d 1242 (1992). The Hearing Board concluded the Respondent did not rebut the presumption of undue influence. (Hearing Board at p. 30.) We see no basis to disturb this conclusion. We are particularly troubled by the Respondent's effort to use the leverage of an imminent trial in order to extract more money from Bufford.
Finally, it is also clear that the Respondent attempted to persuade Bufford by giving him misleading information about the hours he had worked on behalf of Bufford. For
example, most of the listed court appearances were admittedly not solely made on behalf of Bufford. Respondent could not have billed different clients for the same hours of work. See, e.g., In re Giamanco, 97 SH 27 (Review Bd., Feb. 17, 1999) at 7-10, approved and confirmed in part, No. M.R. 15818 (May 26, 1999).
There is also no basis to reverse the Hearing Board's conclusion that Bufford converted client funds. It was only after the pressure of an ARDC proceeding that the Respondent returned the funds to Bufford. As the Hearing Board correctly concluded, "The essence of an action for conversion is the wrongful deprivation of property from the person entitled to its possession." In re Rosin, 156 Ill. 2d 202, 206, 620 N.E.2d 368 (1993). Conversion does not require a "dishonest motive," and "[e]ven if the act was unintentional or technical, an attorney who commingles or converts a client's funds is subject to discipline." In re Timpone, 157 Ill. 2d 178, 195, 623 N.E.2d 300 (1993) (Hearing Board Report at p. 33.)
In determining the appropriate sanction, this Board considers the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). Respondent's misconduct was serious. Respondent's violation of his duty of confidentiality had a significant impact in the murder case brought against Mays. In In re Ingersoll, 186 Ill.2d 163, 710 N.E. 2d 390 (1999), an attorney was disbarred in part for disclosing his client's confession to the press.2 In In re O'Connor, 01 CH 96 (Hearing Bd., Jan. 21, 2004), approved and confirmed, No. M.R. 19328 (May 17, 2004), the Court suspended the attorney for 30 days for disclosing to opposing counsel information regarding what the client would accept in settlement of a case.
The misconduct in breaching a fiduciary duty to Bufford also warrants a sanction. In In re Lutz, 06 SH 81 (Review Bd., June 4, 2008), recommendation adopted, No. M.R. 22544 (Sept. 17, 2008), the attorney was sanctioned for breaching his fiduciary duty by negotiating and accepting a fee as a private attorney when he could have represented the client as a public defender.
Finally, Respondent's conversion of Bufford's bond refund warrants a sanction. The Supreme Court has stated that the conversion of client funds, even without an invidious motive, is grave misconduct which brings the entire legal profession into disrepute. In re Timpone, 157 Ill.2d 178, 198, 623 N.E.2d 300 (1993). The sanctions for conversion have ranged from a censure to disbarment. See, e.g., In re Vrdolyak, 137 Ill. 2d 407, 427, 560 N.E.2d 840 (1990).
In mitigation, Respondent called one character witness who testified as to Respondent's good reputation. Respondent testified that he has been active in bar activities and served at one time as president of the Morgan County Bar Association. He was the Morgan County Public Defender from 1973 to 1984. He has engaged in pro bono legal services throughout his career. He has also been active in his church. At the time of his disciplinary hearing, he was 72 years old.
In aggravation, the Hearing Board also considered Respondent's prior discipline. Respondent was censured on consent in 1999 for engaging in a conflict of interest by representing both a lender and a borrower in a loan transaction and for overreaching to obtain an attorney fee. In re Kesinger, 98 SH 106, petition to impose discipline on consent allowed, No. M.R. 15782 (May 25, 1999). Respondent contends that the Hearing Board improperly
considered the prior disciplinary matter and argues that the prior matter should not be given any weight in determining a sanction.
In addressing recidivism, the Court has stated that a previously disciplined attorney should "have a heightened awareness of the necessity to conform strictly to all the requirements of the Rules of Professional Conduct." In re Storment, 203 Ill.2d 378, 401, 786 N.E.2d 963 (2002). Generally, therefore, an attorney's prior discipline is given greater weight in aggravation of the misconduct if the attorney has been found to have engaged in the same type of misconduct. See, e.g., In re Winthrop, 219 Ill.2d 526, 559, 848 N.E. 2d 961 (2006); In re Gerstein, 99 SH 1 (Review Bd., August 12, 2002), recommendation adopted, No. M.R. 18377 (Nov. 26, 2002) (attorney's prior discipline viewed as an aggravating factor; fact that prior discipline was similar in nature viewed as an additional aggravating factor).
The earlier disciplinary matter is similar in nature to certain aspects of the present matter and, accordingly, is an appropriate factor to consider when determining a sanction. Both matters include misconduct and overreaching in order to obtain an attorney fee. While there was a substantial period of time between the two disciplinary matters, the prior discipline is entitled to be given some weight.
We note that the most troubling factor in aggravation is the harm caused by Respondent's misconduct. Juvon Mays's conviction appears to have resulted in part from the letter the Respondent sent to the prosecutor. Lance Bufford was forced to retain new counsel for an additional fee to represent him in his criminal matter and to file a charge at the ARDC in order to receive the return of his bond refund.
The Hearing Board properly considered the factors in mitigation and aggravation of Respondent's misconduct and we see no need to disturb the Hearing Board's findings or
recommendation in this matter. However, given the serious harm caused by Respondent's conduct and given Respondent's admission during argument before this Review Panel that he sometimes lacks attention to detail, we are concerned about the protection of the public and Respondent's ability to comply with Supreme Court Rule 764 should the Court adopt our recommendation for a sanction. Accordingly, in the event Respondent is suspended for a period of six months, we recommend that the Administrator be directed to closely monitor Respondent's compliance with Supreme Court Rule 764.
We affirm the findings of fact and conclusions of misconduct as found by the Hearing Board. We recommend that Respondent, G. Ronald Kesinger, be suspended for a period of six months.
Chrystel L. Gavlin
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on October 24, 2012.
Kenneth G. Jablonski, Clerk of the
1 See, e.g., People v. Davison, 236 Ill.2d 232, 239-40, 923 N.E.2d 781 (2010) (felony murder charge does not require the State to prove the intent to kill, distinguishing it from other forms of first degree murder when the State must prove either an intentional killing or a knowing killing).
2 Ingersoll also involved other charges of misconduct.