Filed June 4, 2013

In re Jesse Raymond Gilsdorf
Attorney-Respondent

Commission No. 2012PR00006

Synopsis of Hearing Board Report and Recommendation
(June 2013)

This matter arises out of the Administrator's two-count Complaint, filed on February 6, 2012, as amended by the Administrator's motions on April 5, 2012, and September 28, 2012. The charges of misconduct arose out of the Respondent knowingly posting on an Internet site, and showing to others, a DVD video he received from the state's attorney while representing a criminal defendant. The video showed the undercover drug transaction between Respondent's client and a confidential police source. The Respondent entitled the video "Cops and Task Force Planting Drugs," which was false. By posting the video while his client's criminal case was pending, Respondent intended to persuade residents of the county that the police or other government officials acted improperly in the prosecution of his client.

The Hearing Board found that the Respondent engaged in the misconduct charged in both counts. Specifically, he revealed information relating to the representation of a client without the informed consent of his client and without the disclosure being impliedly authorized in order to carry out the representation; failed to reasonably consult with the client about the means by which the client's objectives are to be accomplished); made extrajudicial statements that the lawyer reasonably knows will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding; engaged in conduct prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

The Hearing Board recommended that Respondent be suspended from the practice of law for a period of five (5) months.

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

In the Matter of:

JESSE RAYMOND GILSDORF,

Attorney-Respondent,

No. 6225020.

Commission No. 2012PR00006

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on November 14, 2012, at the Springfield offices of the Attorney Registration and Disciplinary Commission, before a Panel of the Hearing Board consisting of John L. Gilbert, Chair, Ronald S. Motil, and Ted L. Eilerman. C. Richard Wray appeared on behalf of the Administrator. Respondent appeared pro se.

PLEADINGS

Amended Complaint

On February 6, 2012, the Administrator filed a two-count Complaint against the Respondent. On motions of the Administrator, the Complaint was amended by interlineation on April 5, 2012, and one charge of misconduct, at paragraph 15 (e), was stricken on September 28, 2012.

Count I

Count I of the Amended Complaint alleges that, at all pertinent times, Respondent was representing Angela Fulmer on the criminal charge of unlawful delivery of a controlled substance. (People v. Fulmer, Pike County, No. 11 CF 15). On March 4, 2011, Respondent

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received in discovery copies of police reports and a DVD video of an undercover drug buy. The video runs about 18 minutes and purported to show the delivery of a controlled substance by Fulmer to a confidential source of the Illinois Drug Task Force. Respondent showed the video to about twenty people who were not related to Fulmer's case. He also caused the video to be uploaded in two parts to an internet website known as YouTube, and he entitled both parts as "Cops and Task Force Planting Drugs." Additionally, Respondent released the videos from his custody to an employee of a company named Pyrographics for the videos to be posted on YouTube. Respondent paid Pyrographics $233.75 for this service. Respondent did not inform Fulmer that he intended to post the videos on YouTube, and Fulmer did not authorize him to do so.

The videos posted on YouTube were described by Respondent as a "drug plant" and implied that the Drug Task Force engaged in improper or illegal conduct by entrapping Fulmer. The videos also showed the identity of a confidential source. Respondent posted a link to the videos on his page of the internet website known as Facebook. The link would take a visitor from Respondent's Facebook page directly to the videos on YouTube.

The Pike County State's Attorney filed a motion for sanctions, alleging that Respondent violated discovery rules by disseminating the videos. On May 20, 2011, the circuit court found that Respondent violated Supreme Court Rule 415(c) and ordered him to remove the videos from the internet. From March 4, 2011, when Respondent received the DVD video, to May 20, 2011, the videos received more than 2,000 hits on YouTube.

Count II

Count II of the Amended Complaint alleges that Respondent, by posting the videos as set forth in Count I on the Internet, intended to draw the attention of Pike County residents to

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Fulmer's criminal case and to persuade them that the police or other governmental officials acted improperly in the prosecution of Fulmer. Also, Respondent knew the dissemination of the videos would pose a serious and imminent threat to the fairness of the adjudicative proceeding involving a jury that would be comprised of Pike County residents.

Answer

The Respondent filed his Answer on July 6, 2012. He admitted some of the factual allegations, denied others, and denied all of the allegations of misconduct.

ALLEGED MISCONDUCT

The Administrator alleged that Respondent engaged in the following misconduct: 1) revealed information relating to the representation of a client without the informed consent of his client and without the disclosure being impliedly authorized in order to carry out the representation (Count I); 2) failed to reasonably consult with the client about the means by which the client's objectives are to be accomplished (Count I); 3) made extrajudicial statements that the lawyer reasonably knows will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding (Count II); 4) engaged in conduct prejudicial to the administration of justice (Counts I and II); and 5) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute (Counts I and II), in violation of Rules 1.4(a)(2), 1.6(a), 3.6(a) and 8.4(d) of the Illinois Rules of Professional Conduct (2010)

EVIDENCE

The Administrator presented the testimony of Scott Riley, Charles Burch, Judge Michael Roseberry, Angela Fulmer, and Respondent as an adverse witness. Administrator's Exhibits 2 through 6, and 10 were received into evidence. Respondent testified on his own behalf, and

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presented the testimony of Patricia Kelly. Respondent's Exhibits 1 and 2 were received into evidence.

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. See Supreme Court Rule 753(c)(6); In re Thomas, 2012 IL 113035, para. 56. This standard of proof 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. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); In re Kakac 07 SH 86, M.R. 23785 (May 18, 2010) (Review Bd. at 9). In determining whether the burden of proof has been satisfied, the Hearing Panel is to assess the credibility and believability of the witnesses, weigh conflicting testimony, draw reasonable inferences from the evidence, and make factual findings based upon all of the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126 (1999); In re Timpone, 208 Ill. 2d 371, 380, 804 N.E.2d 560 (2004).

An admission in a pleading is a formal judicial admission that is binding on the party making it, may not be contradicted, has the effect of withdrawing the fact admitted from issue, and dispenses with the need for any proof of that fact. Thus, when a respondent in a disciplinary matter admits in his or her answer some or all of the facts alleged in a complaint, it is unnecessary for the Administrator to present evidence to prove the facts so admitted. See In re Bulger, 02 CH 40, M.R. 19550 (Sept. 27, 2004) (Review Bd. at 6-11); In re Nadenbush, 2011PR00077, M.R. 25622 (Jan. 18, 2013) (Hearing Bd. at 17).

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Background Facts

Respondent has been licensed to practice law in the State of Illinois since November 1994. He is a sole practitioner, with an office in Mt. Sterling. (Tr. 157-58).

In early 2011, Respondent commenced his representation of Angela Fulmer in the case of People v. Fulmer, Pike County, No. 2011 CF 15. Fulmer was charged with unlawful delivery of a controlled substance, hydrocodone pills, to a confidential source on June 14, 2010. A video recording was made of the transaction between Fulmer and the confidential source. A copy of the video recording (Adm. Ex. 2) and police reports were turned over to the Respondent on March 4, 2011. In early April 2011, Respondent caused the video recording to be posted on the Internet website YouTube in two parts, and he entitled each part "Cops and Task Force Planting Drugs." By having the video recording posted on the Internet, Respondent intended to draw the attention of Pike County residents to Fulmer's criminal case and to persuade them that the police or other governmental officials acted improperly in the prosecution of Fulmer. (Adm. Exs. 4, 5; Resp. Ex. 2; Amended Complaint and Amended Answer at pars. 1, 2, 6, 18).

Count I

I. Respondent is charged in Count I with revealing information relating to the representation of a client without the informed consent of the client and without the disclosure being impliedly authorized in order to carry out the representation of the client, in violation of Rule 1.6(a) of the Illinois Rules of Professional Conduct (2010).

A. Evidence Considered

We considered the testimony of Scott Riley, Charles Burch, Judge Michael Roseberry, Angela Fulmer, Patricia Kelly, and Respondent. We also considered Administrator's Exhibits 2 through 6, and 10; and Respondent's Exhibits 2 and 4. In addition we considered the Respondent's admissions in his Amended Answer to Complaint.

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Respondent

Respondent testified that he represented Angela Fulmer in her Pike County criminal case, People v. Fulmer, No. 11 CF 15. In early March 2011, prior to preliminary hearing, the State's Attorney, Frank McCartney, provided discovery materials to Respondent. The materials included a DVD video of the alleged sale of a controlled substance by Fulmer to a confidential police source. Respondent said that, after watching the video, it "was clear to me that, in fact, drugs were being planted on Ms. Fulmer." (Tr. 199-200, 213-14).

Respondent acknowledged that, in "early in April" 2011, he posted or caused to be posted the video of the alleged drug sale by Fulmer on the Internet website YouTube. (Tr. 158, 204). He arranged the posting through a firm in Quincy called PyroTechnics. A person from PyroTechnics informed him of a size limitation for posting and, thus, the video was posted in two parts. The titles of the two posted videos were "Cops and Task Force Planting Drugs- Part 1" and "Cops and Task Force Planting Drugs- Part 2." Respondent said he did not remember who came up with the titles. (Tr. 158-59, 201). He said that Fulmer was "well aware of" the posting of the videos and she "was absolutely very happy with it." (Tr. 159, 201, 204, 222). He acknowledged that he had no written evidence that Fulmer consented to the posting of the videos on the Internet. (Tr. 235).

Respondent was asked about his purpose in having the above videos posted on the Internet. He explained that "there had been extensive pretrial publicity put out there by the state . . . placed in all the newspapers and we were trying to negate some of that adverse pretrial publicity." He said the Fulmer case was "widely publicized" and "the state's attorney's office had, in fact, made substantial public statements regarding this case. The publicity was in area newspapers, from Jacksonville, Quincy, and Pike County. He further explained that "because of

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the extensive pretrial publicity, it became clear that pretrial publicity pushing back was absolutely something that needed to be done to balance the scales." (Tr. 159-60, 212-13, 222).

Respondent said he did not file a pretrial motion to exclude the video from evidence at Fulmer's trial because he believed it showed the police agent, the confidential source, "planting of drugs" on Fulmer and it was "evidence that exonerates my client." (Tr. 162-63, 214). Respondent said he did not usually waive a preliminary hearing, but he waived it in the Fulmer case and demanded an immediate jury trial "because it looked like we had evidence that was going to absolutely win the case." (Tr. 199-200, 214).

In October 2011, Respondent and State's Attorney McCartney had a conversation following a continuance of Fulmer's trial. During their conversation, McCartney said that the delivery of drugs by Fulmer was "very solid" and "it's there" on the DVD video. Following their conversation, Respondent went to his office and watched the video "again and again" on a "large television set." He said he then "changed my opinion" as to what the video showed. He realized that the video did, in fact, show a delivery of the drugs by Fulmer, saying "you can barely see it, but it is there." He called Fulmer and she came to his office to view the video. They then discussed the guilty plea offer that was still pending, and he advised her to consider taking the offer. Ultimately, Fulmer accepted the offer and entered a plea of guilty. (Tr. 162-64, 215-17).

Respondent further testified that he is raising a First Amendment claim and that it is clear to him that "preliminary hearings were the point at which discovery commenced." (Tr. 203).

Scott Riley

Scott Riley is an investigator for the Illinois State Police. From 2006 to 2012, he was assigned to the West Central Illinois Drug Task Force. While working with the Task Force, he was involved the investigation pertaining to Angela Fulmer. (Tr. 28-29).

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Riley said that a confidential source had been in contact with Fulmer, and that they discussed Fulmer selling Hydrocodone pills, a controlled substance, to the confidential source. An operation was then carried out at the house of the confidential source. A camera was set up in the house, and a video recording was made of the transaction between Fulmer and the confidential source. (Adm. Ex. 2). Subsequently, the police turned over a copy of the video and a police report to the State's Attorney of Pike County. The confidential source was referred to by a fictitious name in the police report. (Tr. 29-32).

Riley later learned that the video of the transaction between Fulmer and the confidential source was posted on the Internet site YouTube. He viewed the video, which was in two parts. He said the posting of that video on YouTube "pretty much ended our work with the [confidential source] at that point." He noted that the confidential source had previously participated in drug purchases from five different people," but could not be used "after her identity was published on the Internet." (Tr. 33-35).

On cross-examination, Riley said he did not know whether the Task Force made a press release about the Fulmer case. He acknowledged that the task Force has made press releases about cases from time to time.(Tr. 39-40).

Charles Burch

Mr. Burch has been an assistant state's attorney in Pike County since 2005. He is the only assistant in that office. (Tr. 41-42).

On February 17, 2011, an information was filed in Pike County charging Angela Fulmer with the Class 2 felony of unlawful delivery of a controlled substance. (Resp. Ex. 2 at 1). Burch explained that, when an information is filed, the defendant has the right to a preliminary hearing, at which the State is required to present evidence to a judge showing it is more likely than not

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that the defendant committed the crime charged. In Fulmer's case, she waived the preliminary hearing on March 29, 2011, and demanded a trial by jury. (Tr. 42-45, 48-49, 69, 90, 91).

Burch said that the State is not obligated to turn over discovery information to the defense prior to a preliminary hearing. He also noted that the State is not prohibited from turning over such information prior to a preliminary hearing. The State's Attorney of Pike County generally turns over police reports to a public defender prior to preliminary hearing, but does not do so when the defendant has a privately retained counsel. (Tr. 46-47, 71, 85-86). On cross-examination, Burch said "I don't believe we've ever objected to" a discovery request prior to the preliminary hearing. (Tr. 72).

In the Fulmer case, the police report and the video of the transaction were turned over to Respondent in March 2011. Thereafter, on April 11, 2011, Burch learned that the video had been posted on YouTube. He viewed the video, which was in two parts on YouTube. He printed a copy of the screen shot for each video. (Adm. Exs. 4 and 5). The postings were entitled "Cops and Task Force Planting Drugs- Part 1" and "Cops and Task Force Planting Drugs- Part 2," respectively. The Tags on both postings included the name of Angela Fulmer. Also, there are numbers on each posting that reflect the number of times that posting was viewed. It showed that Part 1 was viewed 572 times, and Part 2 was viewed 851 times. (Tr. 49-53, 70).

Burch prepared, and filed on April 20, 2011, a "Motion for Sanctions for Non Compliance with Discovery Rules" against Respondent. (Adm. Ex. 10). A hearing on the motion was held before Judge Michael Roseberry on May 20, 2011, and a transcript of the hearing was prepared. (Adm. Ex. 6). Judge Roseberry found that Respondent violated Supreme Court Rule 415(c) for having posted the video on the Internet. (Tr. 54-57).

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Burch testified that the State's Attorney in Pike County makes offers to defendants to resolve criminal cases. The first offer was made to Respondent in the Angela Fulmer case on April 2, 2011. The offer was that, if Fulmer would pled guilty to the offense of unlawful delivery of a controlled substance, a Class 2 felony, the State would agree for her to be placed on probation for 36 months, with no jail time, and pay fines and costs. The offer was not accepted by Fulmer. Burch said he did not know whether or not Respondent communicated the offer to Fulmer. Later, a second offer was made "in the late summer [or] early fall" of 2011. The second offer, made to Respondent, was that if Fulmer would pled guilty to the offense of unlawful possession of a controlled substance, a Class 4 felony (Resp. Ex. 2 at 2), the State would dismiss the Class 2 felony charge and agree that she be placed on first offender supervision for 24 months, pay fines and costs, and perform 30 hours of community service. Fulmer ultimately entered a plea of guilty to the Class 4 felony on the basis of the second offer. (Tr. 57-65, 69).

On cross-examination, Burch acknowledged that, after viewing the video on the Internet, he had a conversation about it with Chief Judge Greenlief. That conversation occurred before Burch filed the motion for sanctions against Respondent. Judge Greenlief sent a letter to the ARDC on April 18, 2011, in regard to the conduct of Respondent. (Tr. 72-73, 76; Adm. Ex. 3).

Also on cross-examination, Burch said that he tendered the discovery information to Respondent in the Fulmer matter before a preliminary hearing was held, but that the information was provided pursuant to the discovery rules. He explained that "we gave you [Respondent] what we gave you because we were obligated to disclose all information that we have or evidence that would suggest your client committed a crime. We were obligated to give that to [you]. If what we gave you is not discovery, I don't know what it is, sir." (Tr. 80-81, 84-85).

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Judge Michael Roseberry

Judge Roseberry has been a circuit court judge for about 21 years. He presided at the first appearance of the defendant in the Pike County case of People v. Angela Fulmer, No. 11-CF-15. The case was then put on another judge's calendar. (Tr. 94-95). Judge Roseberry became involved in the Fulmer cases again, after the State filed a motion for sanctions against Respondent. The motion charged that Respondent violated Supreme Court Rule 415(c) by posting a copy of a video recording he received in discovery in the Fulmer case on the Internet. Following a hearing on the motion, Judge Roseberry found that Respondent violated the rule. Respondent was directed to remove the material from the Internet. (Tr. 95-97). Judge Roseberry acknowledged that his ruling on the motion for sanctions pertained to materials that were turned over to Respondent prior to a preliminary hearing. (Tr. 110).

Judge Roseberry said the prosecution is not required to provide discovery to the defense prior to preliminary hearing, but it is "not uncommon" for a state's attorney to do so. The present state's attorney in Pike County routinely provides discovery prior to preliminary hearing. He said providing discovery before a preliminary hearing is a benefit to the defense, by knowing the State's evidence sooner, and it benefits the State because a defendant may then waive a preliminary hearing. (Tr. 98-99, 104, 106, 116-17). Additionally, providing discovery prior to preliminary hearing also expedites the judicial process. (Tr. 121-22).

On cross-examination, Judge Roseberry denied that the filing of the motion for sanctions against Respondent angered him. He said "[n]o, I wasn't angry." (Tr. 103). He also said he did not recall the State objecting to a discovery request that was made prior to a preliminary hearing. (Tr. 103-104).

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Angela Fulmer

Ms. Fulmer testified that the Respondent represented her in regard to drug charges against her in Pike County. He charged her a flat fee of $2,500, which Fulmer paid by borrowing the money from her brother. She said she had meetings with Respondent at both his office and at the Pike County Courthouse. (Tr. 129-31, 140, 146).

Fulmer asserted that Respondent never asked her for permission to post the video of Fulmer's drug transaction (Adm. Ex. 2) on the Internet, and that she never gave him permission to do so. (Tr. 131-32, 150-51). She said she learned that the video was posted on the Internet when Respondent telephoned her "towards the beginning of spring [2011]." He told her he wanted the video to "go viral," and he gave her the website address. Fulmer went to her sister's house and viewed the video. She and her sister then posted the video on Facebook and other social media website. She explained that she posted it on other sites as well because "I guess I was instructed by my attorney to do so. I mean, I wasn't sure how it was going to help me, but I guess that's why you hire an attorney because they know the law." (Tr. 132-34).

On the day her preliminary hearing was scheduled (Mar. 29, 2011), she and Respondent appeared in court, waived the preliminary hearing, and demanded an immediate jury trial. They wanted an immediate trial "because at that juncture it did not appear that the video showed [her] delivering any drugs." Her trial was ultimately continued until October 2011. (Tr. 143-44).

In October 2011, Fulmer went to Respondent's office and viewed the video on a "large screen TV." At that time, Respondent advised Fulmer to accept the guilty plea offer of the State. She said Respondent explained that, previously, "he had missed something on the video," and that "the video proved [Fulmer] was guilty." He told her she would not get a better offer from the State and that there "was probably no chance of winning the jury trial." Fulmer accepted the

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offer and entered a plea of guilty. She received first offender probation of 24 months. (Tr. 134-36, 144-45).

Fulmer said the posting of the video on the Internet had an adverse effect on her life. She explained that it "became a media storm;" her name was on the news and in the newspapers; "people that have known me my whole life don't speak to me now;" and "it was very embarrassing." (Tr. 136). She acknowledged on cross-examination that stories about her arrest were published in area newspapers before the video was posted on the Internet. (Tr. 146-48).

On cross-examination, Fulmer was asked if she recalled calling Respondent's office on April 8, 2011, and leaving "a message in fact inquiring if the video was posted on the Internet yet." She responded "No, I do not." (Tr. 143).

Patricia Kelly

Ms. Kelly testified that she was a secretary in Respondent's office for part of the year 2011. Her duties included answering the telephone and taking messages. She said that Angela Fulmer called Respondent's office at various times and left messages. Kelly identified Respondent's Exhibit 4 as containing copies of messages Kelly wrote regarding telephone calls and messages. She said she wrote down a message from Fulmer on April 8, 2011, that said "wondering if you got any further on what your working on putting it on the internet for me yet." (Tr. 174-76, 193-95).

Kelly also testified that she was present at Respondent's office when Fulmer viewed a video. She did not remember the date, but the time frame of March or April 2011 "sounds about right." Kelly also viewed the video, and "could not see where any drugs were being sold by Ms. Fulmer initially." (Tr. 181-82, 185, 195).

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Kelly further testified that, in March or April 2011, she was at Respondent's office when Fulmer was also there, and "the Internet was discussed." Kelly did not hear Fulmer voice any objections. (Tr. 194).

B. Analysis and Conclusions

Based upon the testimony and exhibits set out above, our findings as to credibility, and the Respondent's judicial admissions in his Answer, it is clear that the Respondent improperly had posted on the Internet website YouTube a video recording of an undercover drug transaction between his client, Angela Fulmer, and a confidential source.

On February 17, 2011, Angela Fulmer was charged by information with the offense of Unlawful Delivery of a Controlled Substance to a confidential source on June 14, 2010, in Pile County. (People v. Fulmer, No. 11 CF 15). On March 4, 2011, while representing Fulmer in the foregoing matter, Respondent received information from the State's Attorney of Pike County pertaining to that case. One of the items Respondent received was a DVD video recording of the undercover drug transaction between Fulmer and the confidential source on June 14, 2010. The Respondent viewed the video recording and, according to his testimony, believed it showed that the confidential source planted the drugs on Fulmer. A preliminary hearing was scheduled for Fulmer on March 29, 2011. On that date, Fulmer and Respondent appeared in court, waived a preliminary hearing, and demanded an immediate jury trial. Respondent explained that the preliminary hearing was waived because he had the video recording that "we would have loved to have presented to a jury," which "exonerates my client," and was evidence that "was going to absolutely win this case." (Tr. 163, 214).

At some time in early April 2011, Respondent had the video recording of the June 14, 2010, drug transaction posted on the Internet website YouTube. Because of the length of the recording, it was posted in two parts. Respondent entitled both parts "Cops and Task Force

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Planting Drugs." He also posted a link to the two-part videos on his page of Facebook, which would take a visitor directly to the videos on YouTube. (See Amended Complaint and Amended Answer, at pars. 6, 11).

There is no doubt that the above video recording related to his representation of Fulmer in the criminal case. Thus, Respondent could not properly reveal the video recording or its contents without the informed consent of Fulmer. Rule 1.6 also permits disclosure if impliedly authorized in certain situations set out in the Rule; however, none of those situations are applicable in this matter.

Ms. Fulmer testified that the Respondent never asked her for permission to post the video recording on the Internet, and that she never gave him permission to do so. We found Fulmer to be a credible witness and that her testimony in this regard was positive and accurate. Also, we found no motive for Fulmer to misrepresent what occurred in regard to the video recording. On the other hand, we did not find the Respondent to be credible or his testimony believable.

We note that Patricia Kelly, a former secretary of the Respondent, testified that she took telephone calls and messages from Angela Fulmer in March and April 2011. Ms. Kelly identified Respondent's Exhibit 4 as containing copies of messages Kelly wrote regarding telephone calls and messages. She said she wrote down a message from Fulmer on April 8, 2011, that was "wondering if you got any further on what your working on putting it on the internet for me yet." (Resp. Ex. 4 at 1). Even if the foregoing message was left by Fulmer on April 8, 2011, it fails to show that Fulmer gave Respondent permission to post the video recording on the Internet. Rather, the message merely shows that Respondent had mentioned the posting to Fulmer prior to April 8, 2011.

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We also have doubt about the accuracy of the alleged message received from Fulmer on April 8, 2011. Respondent's Exhibit 4 contains copies of four messages left by Fulmer. The message slip for April 8, 2011, contains lighter ink at the top, which identifies the caller, date, and telephone number, but darker ink for the message. (Resp. Ex. 4 at 1). The other three slips containing messages from Fulmer, on March 29, 2011 (Resp. Ex. 4 at 3), March 11, 2011 (Resp. Ex. 4 at 4), and April 11, 2011 (Resp. Ex. 4 at 7), do not have different shades of ink for the messages. Thus, it appears that the writing on the slip for April 8, 2011, may have been written with different pens and, thus, at different times.

We further point out that, even if Angela Fulmer had given permission, or concurred with Respondent's decision, to post the video recording on the Internet, we would find that Fulmer did not give "informed consent" as required by Rule 1.6(a). Informed consent means "the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information about the material risks of and reasonably available alternatives to the proposed course of conduct." (Rule 1.0(e)). It is apparent form Fulmer's testimony that she did not receive such adequate information from the Respondent. For example, Fulmer testified "I'm not sure why or what [the video recording] was going to do" and "I mean, I wasn't sure how it was going to help me, but I guess that's why you hire an attorney because they know the law." (Tr. 133-34). Additionally, there was no testimony from the Respondent that he communicated adequate information for Fulmer to give informed consent. Rather, Respondent simply testified that Fulmer "was made aware of [the posting]" and she "absolutely agreed with it." (Tr. 204, 222).

In In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390 (1990), the respondent was found to have revealed a confidence or secret of a client in the absence of consent by the client after

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disclosures. A man named Perry was charged with the murder of a police officer's son. Perry confessed to the murder, but the police did not disclose the confession to the public. At the request of Perry's mother, Ingersoll spoke with Perry in the jail. During their conversation, Perry disclosed his confession and also said he had been ordered to commit the murder in retaliation for the death of a fellow gang member. Ingersoll testified that he and Perry agreed on a strategy to help create sympathy for Perry. The strategy was to make Perry's confession public, and then mitigate the crime by showing it was related to gang activity and that Perry was ordered to commit the murder. Perry denied discussing or agreeing to the foregoing strategy. On the day after the meeting in the jail, Ingersoll disclosed the above information to a local television station reporter. The television station reported the information, and other stations then made similar reports. Ingersoll also disclosed the information he received from Perry during an interview at a radio station. The Hearing Board found that Ingersoll engaged in the above mentioned misconduct, and the Review Board affirmed. Ingersoll, 186 Ill. 2d at 170-73.

The Supreme Court first noted that the Hearing Board's finding as to credibility was entitled to deference. The Hearing Board heard conflicting accounts, and rejected the Ingersoll's version. The Court then stated:

In further support of its findings, the [Hearing] Board also noted that even if respondent had discussed the planned strategy with Perry, respondent had failed to fully explain to Perry the possible ramifications of the plan, and therefore had not obtained Perry's informed consent. We agree. Even if respondent's testimony is accepted as true, it fails to demonstrate that respondent apprised Perry of the potential consequences of the strategy.

Id. at 173-74.

In In re Kesinger, 2011PR00025, M.R. 25702 (Jan. 18, 2013), the respondent was also found to have disclosed a confidence of his client (Mays) in the absence of the client's consent after disclosure. A few days before the scheduled murder trial, Kesinger disclosed to an assistant

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state's attorney, and to two others, statements Mays had made to Kesinger. Kesinger said the purpose of his disclosure was an attempt to get a plea agreement. Mays testified that he told Keninger not to disclose the statements. However, Kesinger testified that, although he did not get written or verbal permission from Mays, he believed it "was implied" that he could disclose Mays' statements. The Hearing Board found that the disclosure of Mays' statements was improper because Kesinger "failed to make any significant ?disclosure' to Mays." (Hearing Bd. at 24-25). The Review Board affirmed. (Review Bd. at 6).

In the case before us, similar to Ingersoll and Kesinger, the Respondent failed to provide adequate information or disclosures to Fulmer so that she could make an informed consent as to the posting of the video recording of the drug transaction on the Internet. Also, as mentioned above, we found Angela Fulmer to be a credible witness, and we did not find the Respondent to be a credible witness.

Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the misconduct of revealing information relating to the representation of a client without the informed consent of the client, and without the disclosure being otherwise authorized or permitted, in violation of Rule 1.6(a) of the Illinois Rules of Professional Conduct (2010).

II. Respondent is charged in Count I with failing to reasonably consult with the client about the means by which the client's objectives are to be accomplished, in violation of Rule 1.4(a)(2) of the Illinois Rules of Professional Conduct (2010).

A. Evidence Considered

We considered the same evidence as discussed in Section I, above.

B. Analysis and Conclusions

As set out in Section I, above, the testimony of Angela Fulmer, who we found to be a credible and believable witness, showed that Respondent failed to provide her with sufficient

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information to understand the purpose of, and to give informed consent for, the posting of the video of the drug transaction on the Internet. It is clear from her testimony that she did not understand the Respondent's strategy of posting the video on the internet. Also, as pointed out in Section I, the Respondent's testimony did not indicate that he provided Fulmer with any sufficient explanation of his strategy.

On March 29, 2011, a preliminary hearing was waived in Fulmer's case, and a demand was made for "an immediate jury trial." (Tr. 199). A jury trial was then scheduled for April 11, 2011. At that time, according to Respondent, he believed the video showed that drugs were planted on Fulmer; the video "exonerates my client;" and the video was "evidence that was going to absolutely win the case." (Tr. 163, 214). Respondent failed to explain to Fulmer, and to us, why, instead of publicizing Fulmer on the Internet, he did not simply choose to go to trial in April 2011 and introduce the video, which he believed exonerated his client and would result in a not guilty verdict. We fail to understand why the Respondent thought the posting of the video on the Internet was a reasonable strategy for Fulmer's criminal case or how it would benefit Fulmer in any way.

It is clear that Respondent did not explain the benefit of his planned strategy and its possible ramifications to Fulmer. See Ingersoll, 186 Ill. 2d at 173-74; In re Kesinger, 2011 PR00025, M.R. 25702 (Jan. 18, 2013) (Hearing Bd. at 23-25).

Based on the above, we find that the Administrator proved by clear and convincing evidence that the Respondent engaged in the conduct of failing to reasonably consult with the client about the means by which the client's objectives are to be accomplished, in violation of Rule1.4(a)(2) of the Illinois Rules of Professional Conduct (2010).

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III.    Respondent is charged in Count I with engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

A. Evidence Considered

We considered the same evidence as discussed in Section I, above. We also take judicial notice of the opinion in People v. Angel Fulmer and Jesse Gilsdorf, 2013 IL. App. (4th) 120747, filed on February 25, 2013. The Appellate Court affirmed Judge Roseberry's finding that Respondent violated Supreme Court Rule 415(c) by posting the video of Fulmer's drug transaction on the Internet and the sanction requiring Respondent to remove the video from the Internet.

B. Analysis and Conclusions

An attorney's misconduct is prejudicial to the administration of justice if it has an adverse impact on the representation of a client or on a judicial proceeding. See In re Stormant, 203 Ill. 2d 378, 399, 786 N.E.2d 963 (2002); In re Gerstein, 99 SH 1, M.R. 18377 (Nov. 26, 2002) (Review Bd. at 4-5); In re McAvoy, 03 CH 8, M.R. 20463 (Jan. 13, 2006) (Review Bd. at 15).

For example, the attorneys in the following cases were found to have engaged in conduct prejudicial to the administration of justice. In In re Moll, 01 CH 46, M.R. 20918 (Sept. 20, 2006) (Review Bd. at 10-11; Hearing Bd. at 34-35), because of the attorney's misconduct, "other attorneys involved in the class action, the court, and the third party claims administrator endured additional inconvenience and work." In In re Verett, 07 SH 105, M.R. 22567 (Sept. 17, 2008) (Hearing Bd. at 34), the attorney's misconduct caused "additional and otherwise needless motions to be filed, court proceedings, court orders, and appearances by other counsel and parties." In In re Reu, 2010PR00122, M.R. 25381 (Sept. 17, 2012), the attorney's misconduct caused needless delay in a child support matter, additional motions to be filed by opposing counsel, additional proceedings to be held, and court orders to be entered. (Hearing Bd. at 22).

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In In re Cagle, 05 SH 23, M.R. 21355 (Mar. 19, 2007), the attorney failed to appear at scheduled court proceedings without notice and, as result, "additional proceedings were held, the court and other counsel were inconvenienced, additional pleadings were filed, and the case was delayed." (Hearing Bd. at 36-37, 40).

In this case, as a direct result of the Respondent's misconduct of posting the video recording of the drug transaction involving his client on the Internet, Assistant State's Attorney Charles Burch prepared and filed on April 20, 2011, a "Motion for Sanctions for Non Compliance with Discovery Rules" against Respondent. (Adm. Ex. 10). A hearing on the motion was held before Judge Michael Roseberry on May 20, 2011. Judge Roseberry found that Respondent violated Supreme Court Rule 415(c) and ordered, as a sanction, that Respondent remove the video from the Internet. (Adm. Ex. 6). Respondent then filed two pro se motions to reconsider in May and June 2011, respectively. In March 2012, another attorney entered his appearance on behalf of Respondent and filed a second amended motion to reconsider the sanction order. A hearing was held in July 2012, and the judge denied the Respondent's motions to reconsider. The Respondent then appealed to the Appellate Court, briefs were filed, and an Appellate Court opinion was drafted. See People v. Fulmer and Gilsdorf, 2013 IL. App. (4th) 120747, at pars. 1-2, 11-13.

Clearly, Respondent's misconduct caused additional and otherwise unnecessary judicial proceedings, pleadings to be filed, inconvenience to other counsel, court orders, appellate briefs, and an Appellate Court opinion. We note and agree with the following findings in In re Ditkowsky, 2012PR00014 (May 3, 2013) and In re Cahnman, 2009PR00118 (Apr. 15, 2013)). In Ditkowsky, the Hearing Board found that the respondent engaged in conduct prejudicial to the administration of justice because, as a direct result of his misconduct, a motion for sanctions was

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filed; his misconduct "prompted the attorneys involved in the case to take legal action;" and "court and counsel were required to spend time addressing issues which would have been unnecessary but for Respondent's improper conduct." (Hearing Bd. at 13-14). In Cahnman, the Hearing Board also found that the respondent engaged in conduct prejudicial to the administration of justice. As a direct result of his misrepresentation to a judge, "a contempt proceeding was initiated, a hearing was held, an order of contempt was issued, and appeal was taken, briefs were filed, and an appellate court opinion was filed." (Hearing Bd. at 16-17).

We also find that the Respondent's improper posting of the video on the Internet delayed the criminal case of his client, Angel Fulmer. Her trial was scheduled for April 11, 2011. However, on that date, Assistant State's Attorney Burch learned that the video had been posted on the Internet. The trial was continued, Burch prepared a motion for sanctions, and various proceedings pertaining to sanction followed. Fulmer's trial was ultimately scheduled for October 2011 at which time she entered a negotiated plea of guilty. Thus, the disposition of the criminal case was delayed for several months.

We further find that the Respondent's misconduct improperly disclosed the identity of a confidential source of law enforcement officials in the Pike County area, and, as a result, the confidential source could not be used again to assist in undercover operations. Scott Riley, an investigator for the Illinois State Police, testified that the confidential source had previously participated in drug purchases from five different people," but that the confidential source could not be used after her identity was published in the Internet. (Tr. 33-35).

Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

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IV.    Respondent is charged in Count I with engaging in conduct which tends to defeat the administration of justice or to bring the courts of the legal profession into disrepute.

A. Evidence Considered

We considered the same evidence as discussed in Sections I and III, above.

B. Analysis and Conclusions

Based upon our finding that the Respondent's misconduct was prejudicial to the administration of justice, we also conclude that the Respondent engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

Respondent contended that, after viewing the video of the transaction between Fulmer and the confidential source, he had a "reasonable belief" that the confidential source planted drugs on Fulmer and that Fulmer did not deliver drugs to the confidential source. (Tr. 214). We reject his contention. We viewed the video and found no basis for a reasonable belief that the confidential source planted drugs on Fulmer or that Fulmer did not deliver drugs to the confidential source. Consequently, we conclude that, if the Respondent believed the video showed the confidential source planting the drugs, and Fulmer not delivering the drugs, such belief was based upon a reckless disregard for what was depicted on the video.

It is clear to us that an attorney who recklessly makes false allegations of dishonesty or other misconduct against law enforcement officials or a confidential source, and posts such false allegations on the Internet, engages in conduct which tends to bring the administration of justice and the legal profession into disrepute. Such allegations make it appear that police and prosecutors are intentionally and knowingly arresting and prosecuting innocent people. In fact, Respondent admitted in his Amended Answer that he entitled the videos "Cops and Task Force Planting Drugs," and knew it "implied that the Drug Task Force engaged in improper or illegal conduct by entrapping Fulmer." (Complaint and Amended Answer, at pars. 6, 10).

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Additionally, an attorney who reveals information about a client's case, by posting it on the Internet, without the informed consent of the client, engages in conduct which is disruptive to the attorney-client relationship and tends to bring the legal profession into disrepute.

Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute

Count II

I.    Respondent is charged in Count II with making an extrajudicial statement that the lawyer reasonably knows will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding, in violation of Rule 3.6(a) of the Illinois Rules of Professional Conduct (2010).

A. Evidence Considered

We considered the same evidence as discussed in Section I of Count I, above.

B. Analysis and Conclusions

Rule 6.3(a) prohibits a lawyer who is participating in a matter from making extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding in that matter.

There is no doubt that the Respondent knowingly and intentionally disseminated by means of public communication a two-part video of a drug transaction between his client, Angela Fulmer, and a confidential source, by having it posted on an Internet site. He also showed the video to about twenty people who were not involved in Fulmer's criminal case. Also the video clearly pertained to the criminal case in which he was counsel for the defendant.

Comment [5] to Rule 6.3 states that there are "certain subjects that would pose a serious and imminent threat to the fairness of a proceeding, particularly . . . a criminal matter." The

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Comment then lists those subjects that would pose a serious and imminent threat to the fairness of a proceeding, which include "(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case." The Respondent knowingly entitled the heading for both parts of the video "Cops and Task Force Planting Drugs;" he knew the heading "implied that the Drug Task Force engaged in improper or illegal conduct by entrapping Fulmer;" and he "intended to persuade [Pike County residents] that the police or other government officials acted improperly in the prosecution of Fulmer." (Complaint and Amended Answer, at pars. 6, 10, 18). It is obvious that, by posting the videos and headings on the Internet, the Respondent intended to convey the opinion that Fulmer was innocent.

Thus, Respondent publicly disseminated the two-part video that contained extrajudicial statements about the pending criminal case of his client Angela Fulmer, and he knew the titles of each part of the video expressed the opinion that Fulmer was innocent, because of the "Cops and Task Force Planting Drugs." Additionally, by so acting, Respondent reasonably should have known that his dissemination by means of public communication would pose a serious and imminent threat to the fairness of an adjudicative hearing because the above discussed Comment to Rule 3.6 expressly provides that opinions as to guilt or innocence of a defendant in a criminal case do pose such a serious and imminent threat.

In In re Cheronis, 114 Ill. 2d 527, 535, 502 N.E.2d 722 (1986), the respondent testified that he was unaware of the Code of Professional Responsibility requirement that client funds must be segregated for his own funds. The Supreme Court stated:

A common maxim holds that ignorance of the law is no excuse, and this is particularly true in a case where the person who claims lack of knowledge of a relevant directive is a practicing attorney. It is a paramount obligation of each member of the bar to study the Code of Professional Responsibility [now the Illinois Rules of Professional Conduct (2010)] and abide by its terms and principles.

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See also In re Gerard, 132 Ill. 2d 507, 538, 548 N.E.2d 1051 (1989). Similarly in this case, Respondent was required to know and abide by the terms and principles of the ethical rules, which expressly prohibit extrajudicial statements as to the innocence of a criminal defendant because they would pose a serious and imminent threat to the fairness of the criminal proceedings.

We note that Respondent has raised an affirmative defense, contending that his posting of the video of his client's drug transaction on the Internet is protected as freedom of speech under the First Amendment to the United States Constitution. His motion to dismiss the Complaint on various grounds, including the First Amendment, freedom of speech ground, was denied by the Chair in a pre-hearing order. Suffice it to say that the First Amendment does not protect an attorney for making accusations that have no basis in fact. See In re Zurek, 99 CH 45, M.R. 18164 (Sept. 19, 2002) (Review Bd. at 11); Ditkowsky, 2012PR00014 (Hearing Bd. at 24). Thus, it "has long been established that attorneys' First Amendment rights do not extend to false statements made with knowledge of their falsity or with reckless disregard for the truth." In re Hoffman, 08 SH 65, M.R. 24030 (Sept. 22, 2010) (Review Bd. at 17). See also In re Palmisano, 92 CH 109, M.R. 10116 (May 19, 2994) (Review Bd. at 5); In re Mann, 06 CH 38, M.R. 23935 (Sept. 20, 2010) (Review Bd. at 11-13). As we discussed in Section IV of Count I, if the Respondent believed that the video showed the confidential source of the police planting drugs on his client, his belief was formed with reckless disregard for the truth.

Based upon the above, we find that the Administrator proved by clear and convincing evidence that the Respondent engaged in the misconduct of making an extrajudicial statement that the lawyer reasonably should know will be disseminated by means of public communication

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and would pose a serious and imminent threat to the fairness of an adjudicative proceeding, in violation of Rule 3.6(a) of the Illinois Rules of Professional Conduct (2010).

II.    Respondent is charged in Count II with engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

A. A Evidence Considered

We considered the same evidence as discussed in Sections I and III of Count I, above.

B. Analysis and Conclusions

Based upon our analysis and conclusion in Section III of Count I, above, we find that the Administrator proved by clear and convincing evidence that the Respondent engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

III.    Respondent is charged in Count II with engaging in conduct which tends to defeat the administration of justice or to bring the courts of the legal profession into disrepute.

A. Evidence Considered

We considered the same evidence as discussed in Sections I and III of Count I, above.

B. Analysis and Conclusions

Based upon our analysis and conclusion in Section IV of Count I, above, we find that the Administrator proved by clear and convincing evidence that the Respondent engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute

EVIDENCE OFFERED IN AGGRAVATION AND MITIGATION

It was stipulated that the Respondent has not been previously disciplined. (Tr. 254).

Ms. Fulmer testified that the Respondent's posting of the video on the Internet had an adverse affect on her. She said she became a topic of "media storm" and it was "very

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embarrassing" to her. Also, she has heard people talking about her and "people that have known me my whole life don't speak to me now." She further testified that she has been unable to find employment, despite having submitted about 25 applications. (Tr. 136-37).

The Respondent's testimony showed that he did not act out any self-serving or evil motive. While his actions were misguided, he was trying to benefit his client. He admitted many of the factual allegations in the Complaint. However, his testimony also showed that he does not recognize that he engaged in misconduct, or the nature or seriousness of his misconduct.

Assistant State's Attorney Burch testified that he made two guilty plea offers in the Fulmer case. He said the first offer was presented to the Respondent on April 2, 2011. The second offer was made in October 2011. The second offer was accepted by Fulmer, and she entered a plea of guilty to a reduced charge. (Tr. 57-59, 63-64). Fulmer testified that the Respondent did not inform her of the initial, April 2011, guilty plea offer from the state's attorney. (Tr. 135). Respondent testified that he did inform Fulmer of the initial guilty plea offer, and that she rejected it. (Tr. 201, 204).

RECOMMENDATION

The purpose of the attorney disciplinary system is not to punish the attorney for the misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961 (2006). In determining the appropriate sanction, we must consider the nature and seriousness of the misconduct, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the

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legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000); Gorecki, 208 Ill. 2d at 361. Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994).

In this case, the Administrator requested the sanction of suspension for "no longer than six months." (Tr. 254). The Respondent contended that, if any misconduct is found, a reprimand is the appropriate sanction. (Tr. 279).

The misconduct of the Respondent involved revealing information related to the representation of a client without the informed consent of the client (Count I); failing to reasonably consult with a client (Count I); making extrajudicial statements that he reasonably should have known would pose a serious and imminent threat to the fairness of a criminal proceeding (Count II); engaging in conduct that is prejudicial to the administration of justice (Count I and II); and engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute (Count I and II). The Respondent's misconduct was serious, particularly because it involved his relationship with a client and a threat to the fairness of a criminal proceeding. In In re Gerard, 132 Ill. 2d 507, 541, 548 N.E.2d 1051 (1989), the Court stated:

Unethical conduct, especially in attorneys' relationships with clients, must not and will not be taken lightly by the profession or by this court. In particular, respondent's attitude throughout this episode of his professional life demonstrates a failure to understand his duties to his clients, and either inability to recognize ethical problems or intentional disregard of professional ethics.

The Court also noted, however, that a disciplinary sanction is to be based upon the conduct in which the attorney engaged, not on the number of ethical rules the same conduct violated. Gerard, 139 Ill. 2d at 532. In the case before us, the basis for the Respondent's misconduct was

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the improper posting of the video of the drug transaction by his client on the Internet with the false heading "Cops and Task Force Planting Drugs."

In aggravation, we consider that Respondent did not show any recognition or understanding of the nature or seriousness of his misconduct. Also, his posting of the video on the Internet caused some harm to his client, Ms. Fulmer. She suffered embarrassment; she heard people talking about her; and she said "people that have known me my whole life don't speak to me now." We note that we are unable to find her difficulty in finding employment to be an aggravating factor because there is a lack of evidence for us to draw a reasonable inference that her unemployment is connected to Respondent's misconduct.

We also consider in aggravation that Respondent failed to inform Fulmer of the guilty plea offer from Assistant State's Attorney Burch that was presented to the Respondent in April 2011. Fulmer's credible testimony showed that the offer was not communicated to her. Although the failure of the Respondent to inform Fulmer of the initial guilty plea offer was not charged in the Complaint, we believe it may be properly considered because it is "similar to the current charges and established by evidence in the record." In re Storment, 203 Ill. 2d 378, 400, 786 N.E.2d 963 (2003). The failure to inform Fulmer of the guilty plea offer is similar to the charges in Count I that he failed to reasonably consult with Fulmer and that he revealed information without Fulmer's informed consent. On the other hand, we do not consider, in regard to either misconduct or sanction, whether Respondent violated discovery Rule 415(c). The initial Complaint charged that Respondent violated Rule 415(c); however, that charge, in paragraph 15(e), was stricken prior to the hearing on motion of the Administrator.

There is also mitigation in this case. Respondent has been a licensed attorney since November 1994, and has no prior discipline. The Respondent did not act out of a self-serving or

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evil motive, but sought to benefit his client. Also, the misconduct consisted of a single incident, involving one client, and not a pattern of misconduct. We note, however, that Respondent did not present any character witnesses; did not present any evidence regarding community or charitable volunteer work, and presented no evidence regarding any pro bono legal work.

We have reviewed the cases cited by both parties, as well as other cases, and found the following cases instructive as to the appropriate sanction.

In In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390 (1999), cited by the Administrator, the respondent was disbarred. His misconduct included publicly revealing a statement made by his client, a criminal defendant, without the client's consent. Ingersoll, 186 Ill. 2d at 171-74. In addition, respondent engaged in other misconduct, including dishonesty and deceit in two matters; making a statement of material fact to a tribunal that he knew or should have known was false in two matters; offering evidence he knew to be false; and depositing his personal funds into his trust accounts on five occasions. Id. at 167, 170, 176-77. In aggravation, he failed to cooperate in his disciplinary proceedings, and engaged in conduct "designed to obstruct, delay and hinder the proceedings." Id. at 179.

In In re Kesinger, 2011PR00025, M.R. 25702 (Jan. 18, 2013), cited by the Administrator, the respondent was suspended for six months. His misconduct arose out of two separate criminal cases. In the first matter, respondent revealed a statement of his client (Mays) to an assistant state's attorney without Mays' consent, and failed to sufficiently explain a matter for Mays to make informed decisions. In the second matter, respondent breached his fiduciary duty and overreached by attempting to renegotiate his fee with his client (Bufford) on the day of Bufford's trial. Additionally, respondent committed conversion by retaining $4, 000 of a bond that belonged to Bufford. Kesinger, 2011PR00025 (Hearing Bd. at 35-37; Review Bd. at 6-7, 12-13).

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In aggravation, a document he prepared to show Bufford the number of hours he had worked on Bufford's case contained "false and misleading information." Also, respondent delayed several months before responding to Bufford's inquiry about the bond refund and before making restitution. Additionally, respondent had practiced law for more than 35 years, and was previously disciplined fifteen years earlier for overreaching to obtain an attorney fee. In mitigation, the respondent did not act with a dishonest motive in the conversion; he was active in a local bar association; he provided "numerous hors of pro bono services;" he was active in community and church matters; he recognized his misconduct and apologized; and one character witness testified on his behalf. Id. (Hearing Bd. at 37-39; Review Bd. at 14-15).

In In re O'Connor, 01 CH 96, M.R. 19328 (May 17, 2004), the respondent was suspended for 30 days. He improperly disclosed a statement of his firm's client, Oliva, to an opposing counsel in litigation being handled by another partner. The information disclosed included the amount Oliva would be willing to accept in settlement. The respondent's motive was to cast this partner in a "poor light." Respondent had no specific intent to disclose a client confidence, but rather the "inclusion of the information regarding Oliva's willingness to settle for a certain amount resulted from a lack of due care rather than an intent to divulge confidential information." O'Connor, 01 CH 96 (Hearing Bd. at 13-14). In mitigation, respondent acknowledged his mistakes, expressed regret and had no prior discipline in 30 years of practice. Id. (Hearing Bd. at 16).

In In re Nelson, 02 CH 12, M.R. 19657 (Nov. 17, 2004), the respondent was suspended for 90 days. While employed by the Chicago Transit Authority (CTA), respondent removed and copied confidential documents from her supervisor's cabinet. She used the information obtained in a civil lawsuit she filed against the CTA. Respondent subsequently produced the

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misappropriated documents in response to discovery. In mitigation, respondent "did not act with malicious intent," but sought to "redress a perceived legal wrong." She understood her misconduct and expressed remorse. She was involved in volunteer activities and four character witnesses testified on her behalf. Also, she had no prior misconduct; however, she had been licensed less than one year in Illinois but about seven years in another state. Nelson, 02 CH 12, (Hearing Bd. at 10-11; Review Bd. at 3, 13).

We believe the nature of Respondent's misconduct in this case was far less egregious than the misconduct in Ingersoll. Respondent's misconduct is also less serious than the misconduct in Kesinger, which involved two clients in criminal cases. Although there was more mitigation in Kesinger than in this case, there was also more aggravation in Kesinger. On the other hand, we believe the misconduct in O'Connor and Nelson was somewhat less egregious than in this case, and there was significantly more mitigation in those two cases than there is in the case before us.

After considering the nature of the Respondent's misconduct, the aggravation, the mitigation, the cases discussed above, and the purpose of a disciplinary sanction, we conclude that a suspension is an appropriate sanction in this case. We do not believe a reprimand, as suggested by Respondent, or a censure would serve to preserve public confidence in the legal profession or sufficiently impress upon others the seriousness of the misconduct in this case.

Therefore, we recommend that the Respondent, Jesse Raymond Gilsdorf be suspended from the practice of law for a period of five (5) months.

Respectfully Submitted,

John L. Gilbert
Ronald S. Motil
Ted L. Eilerman

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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 Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on June 4, 2013.

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