Filed February 8, 2018
In re John Paul Carroll
Commission No. 2015PR00132
Synopsis of Review Board Report and Recommendation
The Administrator filed a single disciplinary complaint against Respondent and another attorney, charging both with dishonestly taking all of a bond refund in a criminal case where they jointly represented the defendant. The complaint also alleged that, in an unrelated matter, Respondent communicated with a represented person without the consent of that person's attorney.
After a joint hearing at which Respondent and the other attorney represented themselves, the Hearing Board found that the Administrator had not proved the charges related to the bond refund, but had proved the other misconduct. A majority of the Hearing Panel recommended that Respondent be suspended for 90 days. A dissenting member recommended a six-month suspension.
On appeal, Respondent challenged the Hearing Panel Chair's decision denying his discovery request and the Hearing Board's finding that he violated Rule 4.2 of the 2010 Illinois Rules of Professional Conduct by communicating with a represented person without the consent of that person's lawyer. On cross-appeal, the Administrator challenged the Hearing Board's finding of no misconduct in connection with the bond refund. Both parties challenged the Hearing Board's sanction recommendation.
The Review Board found that the Hearing Panel Chair's decision denying Respondent's discovery request was not an abuse of discretion and therefore affirmed it. The Review Board also affirmed the Hearing Board's findings of misconduct, concluding that, as a matter of law, Respondent's meeting with his client's represented co-defendant was a clear violation of Rule 4.2, and that the Hearing Board's finding that the Administrator had not proved misconduct in connection with the bond refund was not against the manifest weight of the evidence.
The Review Board agreed with the Hearing Board's recommendation that, for his misconduct, Respondent be suspended for 90 days.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
JOHN PAUL CARROLL,
Commission No. 2015PR00132
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator filed a single disciplinary complaint against Respondent and another attorney, Michelle Gonzalez, charging both with dishonestly taking all of a bond refund in a criminal case where they jointly represented the defendant. The complaint also alleged that, in an unrelated matter, Respondent communicated with a represented person without the consent of that person's attorney.
After a joint hearing at which Respondent and Gonzalez represented themselves, the Hearing Board found that the Administrator had not proved the charges related to the bond refund, but that he had proved the other misconduct. A majority of the Hearing Panel recommended that Respondent be suspended for 90 days. A dissenting member recommended a six-month suspension.1
On appeal, Respondent challenges the Hearing Board's finding that he violated Rule 4.2 of the 2010 Illinois Rules of Professional Conduct by communicating with a represented person without the consent of that person's lawyer. He also challenges the Hearing Panel Chair's decision denying his request that the Administrator produce files from two other
investigations of him for similar conduct, neither of which resulted in charges being filed against him.
On cross-appeal, the Administrator challenges the Hearing Board's finding of no misconduct in connection with the bond refund. Both parties challenge the Hearing Board's sanction recommendation.
For the reasons that follow, we affirm the Hearing Board's findings of misconduct and agree with its recommendation that, for his misconduct, Respondent be suspended for 90 days.
Respondent was admitted to practice in Illinois in 1976. He and Gonzalez, who was admitted in 2007, have separate firms but they often work together on criminal cases. Respondent has been disciplined twice before, in 1994 and 2013. His prior discipline is discussed below in the context of our recommendation.
During the pre-hearing proceedings before the Hearing Board, Respondent sought from the Administrator unprivileged copies of files in two prior investigations of him that purportedly involved alleged Rule 4.2 violations with facts similar to those in this matter and which were ultimately dismissed. He argued that he should be able to obtain this material as evidence of a stare decisis or res judicata type of affirmative defense.
The Administrator denied the discovery request, so Respondent filed a motion to compel with the Hearing Board. The Hearing Panel Chair denied the motion to compel, so Respondent filed a motion to reconsider, which the Hearing Panel Chair also denied. Respondent
petitioned the Illinois Supreme Court for a supervisory order to compel the discovery, but the Court declined to enter the order.
Respondent's conduct during his joint representation with Gonzalez of Joseph Lazar
In 2010, Joseph Lazar was arrested and charged with attempted murder. His bond was set at $35,000, and his family eventually raised enough money to pay the bond. In 2012, while Joseph was still in jail, Gonzalez met Joseph's mother, who asked Gonzalez to see Joseph about representing him. Gonzalez and Respondent, who frequently work together on felony cases, visited Joseph in jail in September 2012. Gonzalez testified at their joint disciplinary hearing (at which Respondent did not testify) that she and Respondent told Joseph that they were two different firms and that, if he wanted to hire both of them, the fee would be $25,000 each.
However, Joseph's brother, Jesse, testified that he met Respondent and Gonzalez at a downtown Chicago Italian restaurant to discuss their representation of Joseph and their fee for doing so. He testified that both attorneys agreed to represent Joseph for a flat fee of $20,000 and that he gave them $2,500 in cash toward their fee, but did not receive a receipt. He testified that, when Joseph's bond was refunded at the end of the case, Respondent and Gonzalez were supposed to pay the family $14,000, based on the following: The bond refund would be $31,500 after the county withheld 10 percent; the attorneys had already received $2,500 in cash, leaving $17,500 that they were owed for the remainder of their fee, which would leave $14,000 left for the family members who had raised the bond money.
Gonzalez contradicted Jesse's version of events, and testified that she and Respondent agreed to a flat fee of $50,000 but later reduced the fee to $35,000 after a discussion
with Joseph. She also denied meeting Jesse at an Italian restaurant, and denied receiving $2,500 from him.
And Joseph contradicted Gonzalez's version of events, testifying that he never agreed to pay Respondent and Gonzalez $50,000, and that they agreed to represent him for a total of $20,000 when they met with him at the jail.
After a four-day trial in March 2014, Joseph was convicted of attempted murder, aggravated battery with a firearm, and aggravated discharge of a firearm. In May 2014, Joseph was sentenced to 33 years in prison. At the end of his sentencing hearing, the judge authorized the bond money to be refunded to Respondent and Gonzalez.
In early June 2014, the court clerk sent the balance of the bond refund, $31,500, to Gonzalez's client trust account. Gonzalez then transferred half of that amount from her client trust account to another account at her bank, and between July and November 2014, gave Respondent five checks that together totaled half of the bond refund proceeds (plus $50 for an unrelated matter).
In May and June 2014, Jesse repeatedly called and texted Respondent and Gonzalez, seeking what he believed was his family's portion of the bond refund, $14,000. He eventually began threatening to report Gonzalez to the ARDC.2
Gonzalez testified that she did not recall receiving text messages from Jesse about a refund of the bond money. She testified that she and Respondent received a total of $31,500 as their fee for representing Joseph, and that she did not owe Joseph or his family any money.
Respondent's conduct while representing James Murray
In January 2013, James Murray and Travon McDonald were indicted for the murder of Murray's wife. They were named as co-defendants in a single indictment. Respondent represented Murray, and Assistant Public Defender David McMahon represented McDonald.
In December 2014, while McMahon was meeting with McDonald at the jail, Respondent and Gonzalez showed up to talk with McDonald. McMahon told Respondent that he represented McDonald and that Respondent could not speak with McDonald. McMahon gave Respondent his name and phone number so that Respondent could contact McMahon if he wanted to discuss the case. Respondent left without speaking to McDonald, and McMahon thought his position - that Respondent was not permitted to speak with McDonald - was clear.
Respondent returned to the jail two days later and met with McDonald. Respondent spoke with McDonald about Respondent's strategy in defending Murray, and McDonald told Respondent that his attorney wanted him to plead guilty and testify against McDonald.
Hearing Board's Findings and Recommendation
Regarding the charges in connection with their representation of Joseph Lazar, the Hearing Board reasoned that the Administrator's case depended upon proof that Respondent and Gonzalez had agreed to represent Joseph for a total fee of $20,000, but that it did not find clear and convincing evidence of that fact. It further reasoned that proof of the Administrator's case rested primarily on the testimony of Joseph and Jesse, but that it did not find either to be a credible witness because of inconsistencies in and conflicts between their testimony.
The Hearing Board also found the text messages between Jesse and the attorneys not to be reliable evidence, noting that gaps in time between some messages and discussion of matters other than fees created ambiguity as to the intended meaning of some of the responses. It found that Jesse's messages suggested efforts to get money back after an unsatisfactory result rather than confirmation of the terms of a prior agreement.
Accordingly, the Hearing Board found that the Administrator had not proved that Respondent and Gonzalez failed to promptly deliver over a bond refund in violation of Rule 1.15(d) or acted dishonestly in violation of Rule 8.4(c).3
Regarding Respondent's representation of Murray, the Hearing Board found that Respondent's conduct fell squarely within Rule 4.2, in that he communicated with McDonald about the criminal case in which Respondent represented Murray and McMahon represented McDonald; and not only did he not have McMahon's consent to do so, but McMahon had expressly prohibited him from doing so. It found, however, that Respondent had not engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).
Two members of the Hearing Panel recommended that Respondent be suspended for 90 days. The third member dissented and recommended a six-month suspension, based primarily on Respondent's prior discipline, which she found serious, and the deliberate nature of his misconduct.
On appeal, Respondent challenges the Hearing Panel Chair's refusal to compel the Administrator to produce files regarding the two prior investigations of Respondent purportedly involving similar violations of Rule 4.2. He also challenges the Hearing Board's finding that he violated Rule 4.2, contending it erred as a matter of law in interpreting Rule 4.2 to apply to his conduct. Last, he challenges the sanction recommendation, contending that, if this Board finds that some sanction is appropriate, it should not be a suspension.
The Administrator, in turn, challenges the Hearing Board's finding that he did not prove misconduct in connection with the Lazar matter. He also challenges the sanction
recommendation, contending that the Rule 4.2 violation alone warrants a six-month suspension, and that Respondent's misconduct, in its entirety, warrants a one-year suspension.
We reject both Respondent's and the Administrator's challenges to the Hearing Board's misconduct findings, which we affirm. We also reject their sanction arguments, and agree with the Hearing Board majority that Respondent should be suspended for 90 days for his misconduct.
1. The Hearing Panel Chair did not abuse his discretion in refusing to compel the Administrator to produce files on two prior ARDC investigations of Respondent purportedly involving Rule 4.2 violations
Respondent argues that the Hearing Panel Chair erred in denying Respondent's discovery request by refusing to grant his motion to compel and motion to reconsider. He claims that, if he were able to show the Hearing Board that the two previous dispositions involved similar factual situations as the current matter, it would indicate that he was acting in a manner that the ARDC had already allowed. We find no error in the Hearing Panel Chair's discovery ruling.
A decision on discovery issues will not be reversed absent a clear abuse of discretion, which occurs only when no reasonable person would take the position adopted by the Hearing Panel Chair. In re Blank, 145 Ill. 2d 534, 553-54, 585 N.E.2d 105 (1991); In re Chiang, 07 CH 67 (Review Bd., Jan. 30, 2009), at 10, recommendation adopted, M.R. 23022 (May 18, 2009). Moreover, "in the absence of a showing that prejudice resulted from the rulings on evidentiary questions, such rulings will not affect the validity of a disciplinary hearing." In re Damisch, 38 Ill. 2d 195, 203, 230 N.E.2d 254 (1967).
That the Administrator closed two prior investigations purportedly involving allegations that Respondent had communicated with represented persons is not proof that Respondent acted appropriately when he spoke with McDonald after McMahon forbade such
communication. As the Court has noted, "an investigation may be closed for many reasons, only one of which is insufficient evidence of misconduct." In re Thomas, 2012 IL 113035, par. 100. Moreover, the fact that a particular case is treated differently from another "is simply not relevant here. Each case depends on its own facts . . . and identical treatment is not required, since the conditions and circumstances under which categorical misconduct may occur vary widely." Damisch, 38 Ill. 2d at 205.
Accordingly, we find no abuse of discretion, and therefore no reversible error, in the Hearing Panel Chair's discovery ruling.
2. The Hearing Board did not err in finding that Respondent violated Rule 4.2
Rule 4.2 provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order." Ill. R. Prof. Cond. 4.2 (2010) (emphasis added). Respondent argues that, based upon the language emphasized above, Rule 4.2 did not apply to his communication with McDonald.
Respondent's challenge raises a question of law about whether Rule 4.2 applies to his conduct. We review questions of law, such as whether circumstances shown by undisputed facts constitute misconduct and what interpretation is to be given to rules, under a de novo standard. In re Morelli, 01 CH 120 (Review Bd., March 2, 2005), at 10, approved and confirmed, M.R. 20136 (May 20, 2005); In re Edmonds, 2014 IL 117696, par. 36.
Respondent first contends that McDonald's case was different and separate from Murray's case, in that Murray was not a party to McDonald's proceeding and McDonald was not a party to Murray's proceeding. He thus argues that, because McDonald and Murray were not
involved in the same matter, the "in the matter" language in Rule 4.2, and therefore the rule itself, did not apply to this situation.
We disagree with Respondent's interpretation of Rule 4.2, which was amended in 2010 to bar communication with represented persons, not just parties. The 2010 amendment brought Illinois Rule 4.2 in line with ABA Model Rule 4.2, which is designed to protect a represented person "'whose interests are potentially distinct from those of the client on whose behalf the communicating lawyer is acting.'" Annotated Model Rules of Professional Conduct, at 445 (quoting ABA Formal Ethics Op. 95-396 (1995)).
We believe there is no doubt that Respondent communicated with a person he knew to be represented by another lawyer "in the matter" within the meaning of Rule 4.2. Murray and McDonald were co-defendants in the same criminal case and charged under the same indictment with the murder of the same person during the same event. Moreover, the interests of Murray and McDonald were clearly distinct, as McDonald had purportedly made a statement implicating Murray in the murder. Thus, both the letter and the spirit of Rule 4.2 applied here.
Respondent next argues that the only conversation that Rule 4.2 prohibits is one that is about "the subject of the representation," and that the Administrator presented insufficient proof that, when he spoke to McDonald, they spoke about "the subject of the representation." He contends that the Administrator presented no evidence of what he and McDonald talked about, and that the Hearing Board committed error by assuming facts not in evidence.
Again, we disagree. Respondent stated in his answer to the complaint that, when he met with McDonald, he explained his strategy about how he was going to defend Murray, and McDonald told him that his attorney wanted him to plead guilty and testify against Murray. (See
Answer to Complaint, par. 33.) Therefore, Respondent admitted that his discussion with McDonald concerned the subject of the representation - the criminal case against McDonald and Murray.
Last, Respondent argues that he was authorized by law to talk with McDonald without McMahon's consent, and therefore fell within the exception to Rule 4.2. He contends that Illinois Pattern Jury Instruction 3.10 provides that it is proper for an attorney "to interview or attempt to interview a witness for the purpose of learning the testimony the witness will give." He contends that McDonald was potentially a witness in Murray's criminal case, and Respondent had the right to talk with him to ascertain if or how he would testify.
Respondent's exact contention was rejected in In re Norton, 07 SH 37 (Hearing Bd., Aug. 5, 2008), at 5-6, affirmed in part and reversed in part, (Review Bd., June 8, 2009), approved and confirmed, M.R. 23278 (Sept. 22, 2009), where the Hearing Board stated that IPI Criminal 3.10 is not directed at, and does not address, "communication with a criminal defendant who is represented by counsel."
Consequently, we find no error in the Hearing Board's findings that Rule 4.2 applied to Respondent under the circumstances involved here, and that Respondent violated that rule by speaking with McDonald, whom he knew to be represented by McMahon, who not only had not given consent for Respondent to speak with McDonald but had expressly instructed him not to.
3. The Hearing Board's finding of no dishonesty is not against the manifest weight of the evidence
On cross-appeal, the Administrator contends that the inconsistencies in Jesse's and Joseph's testimony about when and under what circumstances Respondent's and Gonzalez's fee was agreed upon are insignificant in light of the evidence as a whole, and that the evidence
shows that Respondent and Gonzalez owed the Lazar family $14,000 of the bond refund and dishonestly refused to pay it over.
The Administrator essentially challenges the Hearing Board's interpretation of the evidence, and particularly its view of the text messages between each attorney and Jesse. He argues that the text messages directly contradict Gonzalez's testimony that they had an agreement to be paid a flat fee of $50,000. Noting that the Hearing Board found that the entirety of the text messages could be seen as ambiguous and therefore that they were not reliable evidence of a $20,000 fee agreement, the Administrator urges this Board not to focus on the entirety of the texts but on two specific portions of them: Gonzalez's direct assent, "Fine," to Jesse's specific and unambiguous statement that they had agreed for the fee to be $17,500 from the bond money, and Respondent's direct answer, "Yes," to Jesse's specific and unambiguous question whether his family would get its portion of the bond back from Respondent if Joseph was not granted bond during appeal. (See Adm. Ex. 1 (Gonzalez); Adm. Ex. 1 (Carroll).)
The Administrator argues that Jesse's and Joseph's testimony about the fee agreement is supported by the text messages; that, in contrast, Gonzalez's testimony of a $50,000 fee, later reduced to $35,000, is not supported by any writing or communication; and therefore that the Hearing Board's finding of no violation of Rule 1.15(d) or of 8.4(c) is against the manifest weight of the evidence.
On review, we defer to the factual findings of the Hearing Board, and will not disturb them unless they are against the manifest weight of the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993). A factual finding is against the manifest weight of the evidence where the opposite conclusion is clearly evident or the finding appears unreasonable, arbitrary, or not based on the evidence. Leonardi v. Loyola University, 168 Ill. 2d 83, 106, 658
N.E.2d 450 (1995); Bazydlo v. Volant, 164 Ill. 2d 207, 215, 647 N.E.2d 273 (1995). That the opposite conclusion is reasonable is not sufficient. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E. 2d 961 (2006).
Moreover, while we give deference to all of the Hearing Board's factual determinations, we do so particularly to those concerning the credibility of witnesses, because the Hearing Board is able to observe the testimony of witnesses - which we are not - and therefore is in a superior position to assess their demeanor, judge their credibility, and evaluate conflicts in their testimony. In re Kleczek, 05 SH 24 (Review Bd., June 1, 2007), at 8, petitions for leave to file exceptions denied, M.R. 21745 (Sept. 18, 2007) (citing In re Spak, 188 Ill.2d 53, 66, 719 N.E.2d 747 (1999); In re Wigoda, 77 Ill.2d 154, 158, 395 N.E.2d 571 (1979)).
Given this deferential standard of review, we cannot say that the Hearing Board's finding of no dishonesty was against the manifest weight of the evidence. It is apparent to us that, in reaching its finding of no dishonesty, the Hearing Board carefully considered, weighed, and evaluated all of the evidence, including the text messages that the Administrator believes prove his case
The Hearing Board concluded that proof of the Administrator's case rested primarily on the testimony of the Lazar brothers, and it did not find them credible. It found inconsistencies in Joseph's testimony concerning the fee agreement, and found he was evasive during his cross-examination. Similarly, it found inconsistencies in Jesse's testimony, both internally and as compared with other evidence. It found the text messages not to be reliable evidence of the terms of the agreement, and explained in detail why it reached that finding.
In short, the Hearing Board believed Gonzalez and did not believe the Lazar brothers, and did not find the text messages sufficiently unambiguous to override its credibility
findings. As a reviewing body and under the evidence adduced, we are not in a position to reverse that finding or say that it was wrong. While we might have reached a different conclusion than the Hearing Board did, our standard of review does not allow us to substitute our judgment for that of the Hearing Board simply because we might have held differently were we the trier of fact. Rather, we must "affirm the factual findings of the Hearing Board unless a contrary conclusion is clearly evident." In re Tuchow, 90 CH 305 (Review Bd., Oct. 12, 1994), at 11, approved and confirmed, M.R. 6757 (Jan. 25, 1995) (citing In re J.H., 153 Ill. App. 3d 616, 630, 505 N.E. 2d 1360 (1987)). See also In re Milks, 99 CH 20 (Review Bd., July 2, 2003), at 3-4, petitions for leave to file exceptions denied, M.R. 18895 (Nov. 14, 2003) ("Although an opposite inference may be supportable from the circumstantial evidence, the Hearing Board's finding is not against the manifest weight of the evidence, and we will not substitute our judgment for that of the Hearing Board") (citing In re Krasner, 32 Ill. 2d 120, 204 N.E.2d 10 (1965)).
We cannot say that an opposite conclusion is clearly evident on this record, or that the Hearing Board's finding of no dishonesty is arbitrary, unreasonable, or not based in evidence. We therefore affirm it.
The Hearing Board majority recommended that Respondent be suspended for 90 days. Its sanction recommendation is advisory. In re Ingersoll, 186 Ill. 2d 163, 178, 710 N.E.2d 390 (1999). In making our own recommendation, we consider 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), while keeping in mind that the purpose of discipline is not to punish the attorney but rather to protect the public,
maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). We also consider the deterrent value of attorney discipline and "the need to impress upon others the significant repercussions of errors such as those committed by" Respondent. In re Discipio, 163 Ill.2d 515, 528, 645 N.E.2d 906 (1994) (citing In re Imming, 131 Ill.2d 239, 261, 545 N.E.2d 715 (1989)). Finally, we seek to recommend a sanction that is consistent with sanctions imposed in similar cases. Timpone, 157 Ill. 2d at 197, while also considering the unique circumstances of each case. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991).
Respondent argues that no sanction is necessary because he engaged in no misconduct, but that, if this Board deems a sanction appropriate, he should not be suspended. The Administrator, in turn, seeks a suspension of one year. He contends that, even if Respondent is found only to have violated Rule 4.2, the six-month suspension recommended by the dissent would be warranted, given that his violation of Rule 4.2 was deliberate, he has expressed no recognition that his conduct was unethical, and he has been disciplined twice before.
Both the Hearing Board and the Administrator rely upon In re Morelli, 01 CH 120 (Review Bd., March 2, 2005), approved and confirmed, M.R. 20136 (May 20, 2005) (30-day suspension for violating Rule 4.2 when attorney acceded to represented criminal defendant's requests to talk with him, and engaged in a conflict of interest in another matter, where there was substantial mitigation, including a 36-year career with no prior discipline), and In re Norton, 07 SH 37 (Review Bd., June 8, 2009), approved and confirmed, M.R. 23278 (Sept. 22, 2009) (90-day suspension for violating Rule 4.2 by taking statement from her client's represented co-defendant, failing to turn statement over to her client when her representation ended, lying to her client about the statement, and signing a false name on a jail's visitor log, where there was
significant mitigation, including no prior discipline), as authority for an appropriate sanction in this case. We agree that those cases provide guidance for our recommendation in this matter.
In addition to Morelli and Norton, we take note of the following cases, which indicate that attorneys who engage in a single instance of improper communication with a represented person are frequently reprimanded or censured. See, e.g., In re Gonnella, 00 CH 43, M.R. 17337 (March 22, 2001) (attorney censured for meeting in person with represented minor); In re O'Neal, 96 CH 710, M.R. 15319 (Feb. 1, 1999) (attorney censured for communicating directly, by telephone, with medical provider who was represented by counsel and forging the endorsement of the medical provider); In re Varlas, 99 RC 1508, M.R. 15932 (Sept. 29, 1999) (attorney reprimanded for initiating direct communication with adverse party, neglecting a matter, and acquiring a proprietary interest in the client's cause of action); In re Kyles, 97 CH 43 (December 11, 1997) (attorney reprimanded for assisting client in writing letter to represented party and threatening to present criminal charges to gain an advantage in civil matter); In re Ditkowsky, 89 CH 389 (attorney reprimanded for writing letter to employee of corporation that he knew to be represented); In re Konrardy, 03 RC 1511, M.R. 18950 (November 17, 2003) (attorney reprimanded for participating in conference with client and opposing party without opposing counsel present, and engaging in conflict of interest); In re Galic, 02 CH 104 (August 18, 2004) (attorney reprimanded for allowing client's co-defendant to interrupt and participate in attorney's conversations with client, and for accepting written statement from co-defendant).
We believe that Respondent's misconduct is marginally more serious than that involved in the censure or reprimand cases, in that he spoke with his client's co-defendant after being expressly told not to by the co-defendant's counsel. In this respect, Respondent's conduct
is closer to that of the respondent in Morelli. The respondent in Morelli, however, met with a represented person on two separate occasions, both after he was repeatedly told by the person's attorney that he could not speak with the person. In addition, the respondent's conduct actually affected the criminal proceeding, in that, during the improper and unauthorized meetings, the co-defendant incriminated himself and recanted previous statements to the police, to the benefit of the respondent's client. This, in turn, factored into the co-defendant's decision to plead guilty rather than go to trial.
The conduct of the respondent in Norton also was significantly more egregious than Respondent's misconduct. That respondent not only spoke with and took a sworn statement from her client's co-defendant without obtaining his lawyer's consent, but then, after her representation ended, failed to turn over the sworn statement to her former client or his new attorney. She also engaged in dishonesty on two occasions, and prejudiced the administration of justice in that her former client, after being found guilty of first-degree murder, was granted a new trial when the court learned of his co-defendant's sworn statement.
In this matter, in contrast, Respondent's conduct, while unacceptable, was limited to one instance of improper communication with a represented person, caused no harm to his client or his client's co-defendant, and did not affect the criminal case against them. But, in both Morelli and Norton, there was significant mitigation and little, if any, aggravation. Notably, neither of those respondents had previously been disciplined. In this matter, in contrast, there is little, if any, mitigation, and significant aggravation.
Respondent has been disciplined twice before, in 1994 and in 2013. See In re Carroll, 90 CH 248 (Review Bd., April 11, 1994), approved and confirmed, M.R. 10272 (Sept. 23, 1994); In re Carroll, 09 CH 78 (Review Bd., Jan. 3, 2013), approved and confirmed, M.R.
25952 (May 22, 2013). In the first matter, the Court suspended Respondent for 18 months, with the suspension deemed served, after Respondent was convicted of filing false income tax returns and received a three-year probation during which he was barred from practicing law. In that matter, Respondent was also found to have engaged in additional, unrelated misconduct. In the second matter, Respondent failed to inform his criminal-defendant clients about a plea offer from the State and then falsely told prosecutors that he had conveyed the offer to his clients; and paid a client's bond and then falsely told the court that the money had come from the client's wife. The Court suspended him for 90 days. We agree with the Hearing Board that Respondent's prior discipline is significantly aggravating.
The Hearing Board also found it aggravating that Respondent did not acknowledge his misconduct or express remorse for it. We decline to consider in aggravation that Respondent failed to show remorse. The Hearing Board's finding of lack of remorse is based solely on the fact that Respondent defended himself in his disciplinary proceeding by maintaining that he did not engage in wrongdoing. We believe this is a valid defense that should not be held against him or deemed to aggravate his misconduct. See In re Galic, 02 CH 104 (Hearing Bd., Aug. 18, 2004), at 20 (respondent's failure to show remorse is due to fact that his defense is that he did not do anything wrong, which is a valid defense that does not aggravate his misconduct).
In mitigation, the Hearing Board found that Respondent sometimes represents criminal defendants for no fee. While we take note of its finding, we do not regard it as significantly mitigating because Respondent presented no evidence regarding the extent or nature of pro bono work in which he engages.
We also have considered that Respondent appears to have had a sincere, though patently wrong, belief that he could talk to McDonald. We hope that this disciplinary matter will disabuse him of that incorrect belief, but we feel that imposing a lengthy suspension based on the circumstances here would be akin to punishment.
Taking into account the circumstances involved in this matter, and based upon the authority cited above, we conclude that a suspension of 90 days is commensurate with Respondent's misconduct, is consistent with discipline that has been imposed for comparable misconduct, and is sufficient to serve the goals of attorney discipline.
For the foregoing reasons, we affirm the Hearing Board's findings of misconduct as well as its finding of no dishonesty. We recommend that Respondent be suspended for 90 days for his misconduct.
Richard A. Green4
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 February 8, 2018.
Kenneth G. Jablonski, Clerk of the
1The Administrator also charged Gonzalez with additional misconduct in an unrelated matter, which the Hearing Board found she committed and for which it recommended she be censured and required to pay restitution. Gonzalez has appealed. While Respondent's and Gonzalez's initial hearing was a joint one, their appeals are being heard separately, but our report in this matter necessarily refers to Gonzalez's conduct as it relates to the charges against Respondent.
2 At hearing, the Administrator introduced the text messages - one series between Jesse and Gonzalez, which occurred prior to trial, and one series between Jesse and Respondent, which occurred after trial but before sentencing - into evidence. (See Report of Proceedings at 53, 65-66; Adm. Ex. 1 (Gonzalez); Adm. Ex. 1 (Carroll).) As discussed below, the Administrator contends that these text messages support the Lazar brothers' testimony regarding the fee agreement.
3 All of the misconduct at issue in this matter arose under the 2010 Rules.
4 Panel Member Richard A. Green participated in the deliberation and decision in this case prior to his resignation from the Review Board on December 1, 2017.