Filed November 15, 2012

In re Allen W. James
Respondent-Appellee

Commission No. 08 SH 105

Synopsis of Review Board Report and Recommendation
(November 2012)

Respondent-Appellee Allen W. James was charged with misconduct related to criminal charges filed against him after he drew a loaded semi-automatic weapon and pointed it at a process server who was attempting to serve him with a summons and complaint. He was named as a defendant in that case as a result of his position as the State's Attorney of Union County, Illinois. Respondent was charged with committing a criminal act reflecting adversely on his honesty, trustworthiness or fitness as a lawyer, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4); engaging in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) and engaging in conduct tending to defeat the administration of justice or to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

Respondent admitted some of the factual allegations of the complaint and denied some of them. He denied all of the allegations of misconduct.

The Hearing Board found that the Administrator provided clear and convincing proof of all of the allegations of the complaint, except that there was not sufficient proof that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation The Hearing Board recommended that Respondent be suspended from the practice of law for sixty days.

The case was before the Review Board on the exceptions of the Administrator, who objected to the Hearing Board's recommended sanction and argues that Respondent should be suspended for six months. Respondent claimed that there was not sufficient evidence of a violation of Rule 8.4(a)(3) and argued that at most, he should be reprimanded.

The Review Board affirmed the Hearing Board's factual findings, except that it reversed the finding that he had violated Supreme Court Rule 770, in light of the Supreme Court's decision in In re Thomas, 2012 IL 113035 (Jan. 20, 2012). It recommended that Respondent be suspended for four months.

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

In the Matter of:

ALLEN W. JAMES,

Respondent-Appellee,

No. 6239218.

Commission No. 08 SH 105

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

INTRODUCTION

The Hearing Board found that Allen W. James ("the Respondent") violated Rule 8.4(a)(3) by committing a criminal act that reflected adversely on his honesty, trustworthiness and fitness as a lawyer, Rule 8.4(a)(5) by conducting himself in a way that was prejudicial to the administration of justice and Supreme Court Rule 770 by conducting himself in a way that tends to bring the courts or the legal profession in disrepute in violation of Supreme Court Rule 770.1 The Hearing Board concluded that Administrator's proof did not establish the Administrator's fourth charge that Respondent's conduct involved dishonesty and fraud in violation of Rule 8.4(a)(4).

All charges arose out of the Respondent's conviction for the criminal misdemeanor offense of aggravated assault in violation of 720 ILCS 5/12-2(a) (2008). At the time of his indictment the Respondent was State's Attorney of Union County. The Hearing Board recommended a sixty-day suspension as a sanction. The Administrator filed exceptions to the sanction recommendation and contends that we should recommend a sanction of six months. The Respondent argues that the case should be dismissed or alternatively we should recommend

PAGE 2:

reprimand as a sanction. As discussed below, we recommend that the Respondent be suspended from the practice of law for four months.

RESPONDENT'S CRIMINAL MISCONDUCT

The Hearing Board Report ("the Report") describes the Respondent's criminal conduct in detail. We will highlight its findings.

Christopher Dees, a licensed private detective had been attempting to serve the Respondent with a summons in a federal lawsuit in which Respondent as the State's Attorney of Union County, Illinois was named as a defendant. Dees had tried to serve Respondent both at his office and his home, but had been unsuccessful. The record shows the Respondent was intentionally frustrating the service of the summons.

On the morning of March 19, 2008 between 7:30 and 8:00 a.m. Dees approached the Respondent in the parking lot of the Union County Courthouse in an attempt to serve a summons and a copy of the complaint. According to the Hearing Board, Dees identified himself, displayed a badge, stated he was a process server, and called the Respondent by name. The Respondent pulled a loaded .380 semi-automatic handgun from his pocket and pointed it at Dees. The Hearing Board reports that Dees identified himself again and the Respondent continued to point the gun at him. Fortunately, nothing more happened. Dees dropped the summons at the Respondent's feet and left. He then reported the incident to the Union County Sheriff's Department.

THE CRIMINAL TRIAL

A special prosecutor was appointed to investigate the incident. Charges of unlawful use of a weapon in violation of 720 ILCS 5/24-1(a)(4) (a Class 3 felony) and disorderly conduct in violation of 720 ILCS 5/31-3 (a Class 4 felony) were ultimately filed against the

PAGE 3:

Respondent. As the trial approached, the Respondent agreed to a stipulated bench trial to the misdemeanor offense of aggravated assault and a disposition of supervision, meaning if the Judge found him guilty and he successfully completed the agreed upon sentence the finding of guilty would be vacated. At his bench trial the prosecutor recited the stipulated facts. Based on the stipulated facts, the trial judge found the Respondent guilty of the aggravated assault charge and imposed a sentence of twelve months of supervision and ordered the Respondent to pay a fine of $1,500.00 plus fees and costs. He also ordered the forfeiture of the Respondent's Kel-Tec .380 pistol.

RULE 8.4(a)(3)

The Respondent contends that he was not guilty of the criminal charges because he acted in self-defense and therefore he did not violate Rule 8.4(a)(3). The Hearing Board disagreed noting that:

"The transcript of the stipulated bench trial shows that the presiding judge expressly stated that the ?Court is going to find that the Defendant is guilty of the offense of Aggravated Assault.' (Adm. Ex. 2 at 18)."

As the Hearing Board also correctly observed, a finding of guilty is not inconsistent with the disposition of supervision. See People v. Sheehan, 168 Ill. 2d 298, 308-309, 659 N.E.2d 1339, 1343-44 (1995); People v. Pendleton, 264 Ill. App. 3d 918, 919, 637 N.E.2d 1124, 1125 (1994).

In this disciplinary hearing the Respondent challenged the guilty findings of the trial judge in the criminal case. The record reflects that the Hearing Board gave the Respondent wide latitude to present his defense primarily through his own testimony and cross-examination of witnesses called by the Administrator.

The Respondent in his testimony and arguments asserted that at the time of the incident he had been aggressively prosecuting producers and dealers of methamphetamines who

PAGE 4:

were a serious problem in the area. He presented evidence that his life had been threatened and deputy sheriffs had advised him to carry a gun for his protection. He testified that when approached by Dees he pulled out the gun and pointed in the direction of Dees saying, "I do not know who you are." He stated he did so in self-defense.

The Hearing Board was not persuaded. The Hearing Board stated "we did not find the Respondent to be a credible witness and did not believe his testimony regarding the incident with Christopher Dees." In re James, 08 SH 105 (Hearing Bd., Feb. 3, 2012) at 22. The Hearing Board concluded that other testimony undercut the Respondent's self-defense argument.

The day before the incident, Respondent became aware that a process server was trying to serve him. Dees had gone to the Respondent's office where he presented himself to the Respondent's secretary and gave her copies of the summons and complaint. Respondent's secretary brought the papers to the Respondent in his office, but he refused to take them from her. The same day he warned his wife that a process server might come to their home and warned her not to answer the door. When Dees showed up, she did not answer the door.

Later that night, Dees again went to the Respondent's home and again attempted to serve the summons. The Respondent did not go to the door. He saw a van in his driveway. He called the Anna Police Department. The dispatcher Danny Holdman testified the Respondent wanted the police to have the van moved because he was going to leave. Holdman told the Hearing Board that the Respondent said the person parked in his driveway was a process server and that he did not want to cooperate. The police followed up on this request in spite of having an apparently busy night.

The Hearing Board's summary of the facts also highlighted the fact that the Respondent testified that at the time of the incident he thought the man who approached him in

PAGE 5:

the parking lot "probably was the process server." The Hearing Board also credited the testimony of two Illinois State Police officers, Bryon Farthing and Benjamin Parks. Each testified that the Respondent in the interview about the incident stated he suspected Dees was a process server and he (James) was just being a "dick."

The Hearing Board provided the following summary:

"In summary, we find that the Respondent committed the criminal offense of Aggravated Assault in the parking lot of the Union County Courthouse on March 19, 2008, in that the Respondent, without justification, knowingly drew and pointed a loaded handgun, a deadly weapon, at Christopher Dees, a process server, thereby placing Mr. Dees in reasonable apprehension of receiving a battery. We also find that, before the Respondent drew his handgun, he knew or had a strong suspicion that Mr. Dees was a process server who was attempting to serve summons on the Respondent, as the Respondent knew Dees had attempted to do on the previous day at both the Respondent's office and home. We further find that, at the time the Respondent drew his handgun, the Respondent did not believe that Mr. Dees posed a threat to his safety, and the Respondent did not draw his handgun for the purpose of protecting himself from physical harm."

James, 08 SH 105 (Hearing Bd. at 22).

These factual findings of the Hearing Board are entitled to deference upon review, and they will not be disturbed unless they are against the manifest weight of the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). To meet this test, the findings would have to be arbitrary, unreasonable or not based upon the evidence. Leonardi v. Loyola University, 168 Ill. 2d 83, 106, 658 N.E.2d 450, 212 Ill. Dec. 968 (1995); In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). The Hearing Board's finding that there was clear and convincing proof that the Respondent violated Rule 8.4(a)(3) clearly was not arbitrary or unreasonable.

The Respondent also argues that he is successfully completing his period of supervision and his conviction will be vacated. In our view, the purpose of this disciplinary

PAGE 6:

proceeding was to determine if his conduct amounted to criminal act that reflected "adversely on [his] honesty, trustworthiness or fitness as a lawyer" which is what Rule 8.4(a)(3) prohibits. It clearly did as the Hearing Board's Report demonstrates. The fact that he may successfully complete his supervision in this context is not relevant.

RULE 8.4(a)(5)

The Hearing Board concluded that the Respondent's engaged in conduct prejudicial to the administration justice in violation of Rule 8.4(a)(5). The Respondent has denied he violated any rule, including this one. The Hearing Board's report notes that he did so by attempting to prevent the lawful service of process. An additional reason comes to mind. The Respondent at the time of the offense was the State's Attorney of Union County. It had to go to the expense and trouble of retaining a special prosecutor to investigate and then prosecute him. It simply should never have happened. When the Respondent's secretary came to his office with the summons, all this could have been avoided had the Respondent accepted service and moved on. He chose not to do that and set in motion the unfortunate commotion that followed that clearly impacted the administration of justice in Union County, Illinois.

SUPREME COURT RULE 770

The Administrator's opening brief noted the Supreme Court's decision in In re Thomas, 2012 IL 113035. The Court clarified in Thomas that "Supreme Court Rule 770 is not itself a Rule of Professional Conduct. Thus, one does not "violate" Supreme Court Rule 770. Rather, one becomes subject to discipline pursuant to it upon proof of certain misconduct." Thomas, 2012 IL 113035 at par. 92. In light of the court's decision in Thomas, this charge should be dismissed. Because this charge was similar to the Rule 8.4(a)(3) charge and based as the same facts, its dismissal does not impact our sanction recommendation.

PAGE 7:

MITIGATION AND AGGRAVATION

The Hearing Board identified several points in aggravation each of which makes sense to us. First, the Respondent's misconduct involved the commission of a criminal act. As the Supreme Court has stated:

Every lawyer owes a solemn duty to encourage respect for the law. We believe obedience to the law exemplifies respect for it. The respondent's conduct does not evidence such respect. An attorney is held to a higher standard of conduct, particularly with respect to upholding the law, so that a conviction for such a criminal offense as in the present case [possession of 0.46 grams of cocaine] requires disciplinary action in order to protect the public, the courts, and the legal profession.

In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1, 92 Ill. Dec. 446 (1985).

Second, at the time of the offense he was the State's Attorney of Union County. As the chief law enforcement official of Union County, it was the Respondent's responsibility to enforce the law. By violating the law, he "violated his oath of office as a lawyer and more specifically as State's Attorney." In re Crisel, 101 Ill. 2d 332, 343-44, 461 N.E.2d 994, 78 Ill. Dec. 160 (1984).

Third, the Hearing Board found the Respondent was not candid and truthful in his testimony. In determining a sanction, this conclusion by the Hearing Board is as disturbing as any. The Respondent regretfully does not seem to understand his failings on this matter. The Hearing Board found that he has never stepped back and shown any remorse for his misconduct. He seems to blame others and takes no personal responsibility for the unnecessary and criminal commotion he caused. See In re Samuels, 126 Ill. 2d 509, 531, 535 N.E.2d 808, 129 Ill. Dec. 43 (1989); In re Barry, 00 SH 54 (Review Bd., Apr. 10, 2003), Administrator's petition for leave to file exceptions allowed; sanction modified, M.R. 18782 (Sept. 19, 2003) at 16.

PAGE 8:

In mitigation James presented the testimony of six witnesses. Like the Hearing Board, we believe that it should be given considerable weight. The Respondent testified about his background. The following are the salient details about it:

These details were confirmed by others. Union County Deputy Sheriffs Asa Busby and Scott Harvel both confirmed that James' life had been threatened and he was advised to take precautions, including buying a gun. Union County Assistant State's Attorney Donald Trambley confirmed what these deputy sheriffs said. The Hearing Board summarized Trambley's character evidence as follows:

"Trambley has known the Respondent since they were children. He said the Respondent is a "pillar of the community," active in his church, and a volunteer announcer at football games in Vienna. Trambley also said that he has never heard anyone question the Respondent's honesty. (Tr. 76-78). Trambley said there was "quite a bit" of media coverage of the arrest of the Respondent and the charges against him. Trambley voiced the opinion that "it cost him the election [in 2008]."

PAGE 9:

Angela Aldridge-Cyphers has known the Respondent for years having worked as a paralegal in his law office and the State Attorney's Office. At the time of the hearing she was employed in the Union County Clerk's Office. She vouched for his reputation in the community. She said she had never seen him act out in anger.

Alice Noble-Algire, a Southern Illinois University Law Professor has known him for 16 years. He was one of her students. They have kept in touch through the Southern Illinois American Inn of Court. She vouched for his integrity.

Others vouching for the Respondent include Mary McMahan, Executive Director of the Union County Counseling Services, a community mental health agency [the Respondent serves on its board.], Dee Armes, a Senior Minister at the Respondent's church and Judge Mark Boie, resident Circuit Judge for Union County.

SANCTION RECOMMENDATION

In arguing for a recommendation of six months suspension, the Administrator relies on two cases. The first is In re Karraker, 05 SH 41 (Hearing Bd., Sept. 14, 2006), Administrator's motion to approve and confirm allowed, M.R. 21231 (Jan. 12, 2007). Karraker involved a lawyer whose criminal charge involved battering his wife and a police officer while drunk. Karraker had twenty years of sobriety before his incident, but stress caused him to start drinking again. Karraker was suspended for six months, but the suspension was stayed in its entirety by a two year period of probation with conditions involving treatment of his alcohol problem. Respondent's problem does not involve alcohol abuse and we do not see a parallel in the comparison.

The second case is In re Finks, 2010 PR 00168, petition for discipline on consent allowed, M.R. 25048 (Jan. 13, 2012). The Finks case does involve a State's Attorney who was

PAGE 10:

suspended for sixty days after reporting himself to the ARDC for submitting false nominating petitions for a judicial vacancy which he was seeking to fill. The Administrator argues that the Finks case that involved no criminal charge and self-reporting, sets the low end of the bar at a two month suspension. According to the Administrator, because of the Respondent's case involves an indictment of a State's Attorney, a conviction for aggravated assault and a respondent whose testimony was discredited, the Respondent's suspension should be greater than that received by Finks. We agree.

However, the Respondent also presented very strong evidence of his good reputation and his contributions to his community and the legal profession. The media coverage of the episode caused significant damage to his reputation and the criminal conviction brought its own sanction. The Respondent in Finks did not have other sanctions of this magnitude. Taking into account all of these circumstances, we recommend that the Respondent, Allen D. James, be suspended from the practice of law for four months.

Respectfully Submitted,

Anna M. Loftus
Claire A. Manning
Gordon B. Nash, Jr.

CERTIFICATION

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 November 15, 2012.

Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois

_______________________

1  The rules in effect were the Illinois Rules of Professional Conduct (1990) and are referred as the Rule or Rules.