February 8, 2010

In re Kevin Carroll Kakac,
Respondent-Appellee

Commission No. 07 SH 86

Synopsis of Review Board Report and Recommendation
(February 2010)

Kakac, the State's Attorney of Wayne County, was charged with misconduct arising out of his prosecution of criminal charges against Curtis Sutton. The complaint charged Kakac with making a statement of material fact to a tribunal that he knew or reasonably should have known was false, in representing a client failing to disclose that which he was required by law to reveal, suppressing evidence that he had a legal obligation to reveal or produce, in criminal litigation failing to make timely disclosure to defense counsel of the existence of evidence known to Kakac that tended to negate Sutton's guilt or mitigate the degree of the offense, and engaging in conduct involving fraud, dishonesty, deceit or misrepresentation, conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. Kakac admitted most of the facts alleged in the complaint, but denied misconduct.

The Hearing Board found that Kakac engaged in some, but not all, of the misconduct charged. The Hearing Board found that Kakac engaged in misconduct by: a) failing to disclose to Sutton's attorney that a key prosecution witness, Brian Asher, had entered into a plea agreement with Kakac's office and the terms of that plea agreement, b) failing to correct Asher's testimony at Sutton's trial that he had not been offered anything in exchange for his testimony, and c) falsely stating in closing argument that Asher had not been promised or offered anything in exchange for his testimony. Given its findings as to Kakac's intent and the mitigating evidence presented, the Hearing Board majority recommended that Kakac be suspended for thirty days. The third panel member recommended a censure.

The case was before the Review Board on the Administrator's exceptions, challenging some of the Hearing Board's findings in relation to the misconduct charged and its sanction recommendation. Kakac did not challenge the Hearing Board's findings of misconduct, but sought a censure.

The Review Board affirmed most of the Hearing Board's findings as to the charges of misconduct. The Review Board, however, reversed the Hearing Board's finding that the Administrator had not proven that Kakac engaged in misconduct by misstating, albeit unintentionally, the nature of a prior conviction of Asher's during a hearing on the admissibility of prior convictions for impeachment purposes. Given all the circumstances, the Review Board agreed with the Hearing Board majority's recommendation of a thirty-day suspension.

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

In the Matter of:

KEVIN CAROLL KAKAC,

Respondent-Appellee,

No. 6211262.

Commission No. 07 SH 86

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

Respondent-Appellee, Kevin Carroll Kakac, is the State's Attorney of Wayne County, Illinois. The Administrator-Appellant's one-count complaint charged that Kakac engaged in misconduct based on certain statements and omissions while prosecuting Curtis D. Sutton in a criminal case. Specifically, the complaint charged that Kakac:

a) made a statement of material fact to a tribunal which he knew or reasonably should have known was false, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 3.3(a)(1));

b) in representing a client, failed to disclose that which he was required by law to reveal, in violation of Rule 1.2(f) (134 Ill. 2d R. 1.2(f));

c) suppressed evidence that he had a legal obligation to reveal or produce, in violation of Rule 3.3(a)(13) (134 Ill. 2d R. 3.3(a)(13));

d) in criminal litigation, failed to make timely disclosure to counsel for the defendant of the existence of evidence, known to the prosecutor, that tends to negate the guilt of the accused or mitigate the degree of the offense, in violation of Rule 3.8(c) (188 Ill. 2d R. 3.8(c)); and

e) engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)), conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)), and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770).

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Kakac's answer admitted most of the facts alleged in the complaint, but denied misconduct.

The Hearing Board found that the Administrator proved some, but not all, of the charges of misconduct. As relevant to proceedings before the Review Board, the Hearing Board's findings are as follows:

a) The Administrator proved that, by failing to disclose to Sutton's attorney that a key prosecution witness, Brian Asher, had entered into a plea agreement with Kakac's office and the terms of that agreement, Kakac violated Rules 1.2(f)(3) and 3.8(c), but did not violate Rule 3.3(a)(13).

b) During a hearing on the admissibility of prior convictions for impeachment, Kakac misstated the nature of one of Asher's prior convictions before the court. The Hearing Board found that Kakac's misidentification of the crime for which Asher had been convicted was an unintentional error and, consequently, that the Administrator had not proven that Kakac violated Rule 3.3(a)(1).1 The Hearing Board did not consider the misstatement material, reasoning that both the offense for which Asher had been convicted and the offense Kakac mistakenly identified could have also been used to impeach Asher's testimony.

c) During Sutton's trial, Asher testified that he had not been offered anything in exchange for his testimony. In fact, Asher had been promised a maximum three-year sentence recommendation and the dismissal of one of the original charges in return for his cooperation with law enforcement officials. The Hearing Board found that Kakac knew or should have known that Asher's testimony was false. The Hearing Board concluded that, by failing to correct Asher's false testimony that he had not been offered anything in exchange for his testimony, Kakac violated Rule 1.2(f)(3). The Hearing Board found, however, that the Administrator had not proven that Kakac thereby suppressed evidence, in violation of Rule 3.3(a)(13). Given its conclusion that the Administrator had not presented clear and convincing evidence that Kakac acted with an intent to deceive, the Hearing Board also found that the Administrator had not proven that Kakac's failure to correct Asher's false testimony violated Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)).

d) The complaint charged that Kakac engaged in misconduct by falsely stating, during closing argument, that Asher had not been promised or offered anything in return for his testimony. The Hearing Board found that those statements were false, that Kakac knew they were false when he made them, and that, by those statements, Kakac violated Rules 3.3(a)(1) and 8.4(a)(4).

e) The Hearing Board concluded that Kakac's proven misconduct also violated Rule 8.4(a)(5) and Supreme Court Rule 770.

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The Hearing Board majority recommended that Kakac be suspended for thirty (30) days. The third hearing panel member recommended that Kakac be censured.

The case is before the Review Board on the Administrator's exceptions. The Administrator contends that the Hearing Board erred in finding that Kakac did not make a false statement of material fact when he misstated the nature of Asher's prior conviction, that Kakac did not suppress evidence by failing to inform Sutton's attorney of the terms of Asher's plea agreement, and that Kakac did not suppress evidence or engage in dishonesty when he failed to correct Asher's testimony that he had not been offered anything in return for his testimony. Neither party objects to the Hearing Board's other findings as to the charges of misconduct. The Administrator seeks to have the Review Board recommend a one year suspension. Kakac argues that the Review Board should recommend a censure.

STATEMENT OF FACTS

Kakac was licensed to practice law in Illinois in 1992. After four years in private practice, Kakac was elected State's Attorney of Wayne County, Illinois. He has held that position ever since. Kakac had one part-time assistant State's attorney; thus, Kakac was responsible for most of the criminal cases prosecuted in Wayne County.

Kakac has no prior discipline. Evidence was presented of his exemplary military service, professional activities, and extensive community service. Character witnesses provided very favorable testimony. This evidence is detailed in the Hearing Board report. Further, the testimony indicated that Kakac had a very open policy toward disclosure to the defense and recognized his obligations to make disclosure to the defense.

In 2004, the volume of criminal cases in Wayne County increased significantly. Most of the increase was due to prosecution of cases involving distribution of methamphetamine.

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The volume decreased in 2005 and 2006.

In February 2004, police found methamphetamine in a house. The occupants of the house included Curtis Sutton and Brian Asher. Police arrested Sutton and Asher. Asher and Sutton were indicted on charges of unlawful possession with intent to deliver a controlled substance and unlawful possession of a controlled substance.

Asher was represented by Attorney David Williams. Williams and Kakac discussed a possible plea agreement. Kakac was aware of the plea agreement that ultimately resulted from these negotiations.

On June 3, 2004, Asher pled guilty to the charge of unlawful possession of a controlled substance. This was the less serious of the offenses charged; the potential sentence was one to six years imprisonment. Because of his criminal record, Asher was eligible for enhanced sentencing. As part of the plea agreement, all other pending charges were to be dismissed. In addition, the State agreed to recommend a maximum sentence of three years imprisonment, provided that Asher cooperated with law enforcement authorities. This was a recommendation; the ultimate sentence was up to the sentencing judge.

The cooperation expected of Asher included, but was not limited to, testifying against Sutton. However, on the jacket of his office's file in Asher's case, Kakac noted that Asher's sentencing should be continued until after his co-defendants entered a plea or were tried. Asher was also expected to provide information about methamphetamine production in Wayne County in general. Under the terms of the agreement, if Asher failed to cooperate, he would plead guilty without any recommendation as to the sentencing cap.

Attorney Christopher Elliott represented Sutton. Before Sutton's trial, Kakac informed Elliott that Asher would testify for the State. Kakac testified that he thought Elliott

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knew of Asher's plea agreement, which was a matter of public record. Elliott did not know of the terms of the agreement. Kakac also thought he had disclosed Asher's plea agreement to Elliott, but he had not done so. In particular, Kakac had not informed Elliott of the agreement to recommend a cap on sentencing in return for Asher's cooperation with law enforcement officials. Elliott considered this error by Kakac to be unintentional.

During a conference in court in Sutton's case, Kakac disclosed to Elliott that Asher had prior convictions that could be used for impeachment. In one of his prior cases, Asher had been charged with unlawful manufacture of a controlled substance and unlawful breakdown of a controlled substance. Asher pled guilty to unlawful manufacture, the more serious charge. Asher had been convicted based on that guilty plea and sentenced to six years imprisonment. The charge of unlawful breakdown was dismissed. While Kakac had accurate information before him as to the nature of this conviction, at the conference Kakac stated that the conviction was for "chemical breakdown." The judge declined to allow Sutton to use that offense to impeach Asher's testimony.

Kakac testified that he did not intentionally misrepresent Asher's conviction, but misread the presentence report and, therefore, inadvertently misidentified the charge. Kakac testified that he did not realize that he had made a mistake until after the trial and, therefore, did not disclose the error. Elliott did not think that Kakac intentionally misstated the nature of Asher's prior conviction.

Sutton's case was tried before a jury on December 20, 2004. Asher testified at Sutton's trial. Asher was very important to the prosecution's case against Sutton, as Asher's testimony connected Sutton to the methamphetamine.

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During his testimony, Asher stated that he had pleaded guilty, on June 3, 2004, to possession of a controlled substance. Asher testified that he was awaiting sentencing, the following month, on that charge. On cross-examination, Elliott asked Asher if Asher had originally been charged with anything else. Asher responded affirmatively, stating "obstruction, I believe."

Kakac did not correct this statement. Kakac testified that he did not do so because he did not believe that the statement was false. When Asher was arrested, obstruction of justice was a potential charge, although Kakac did not seek formal charges of obstruction of justice. In fact, of course, Asher had also been charged with possession with intent to deliver a controlled substance.

During cross-examination, Elliott also asked Asher if he had been offered anything in return for his testimony. Asher responded "no." In response to specific questions from Elliott, Asher acknowledged that he had been incarcerated when he entered his guilty plea and was released thereafter. However, Asher's testimony did not reveal the State's agreement to dismiss the other, more serious, charge and to recommend a sentence less than the maximum possible for the offense to which Asher pled guilty.

Kakac also did not correct Asher's testimony that he had not been offered anything in return for his testimony. Kakac testified that, at the time, he did not think that statement was false. Kakac explained that he did not consider the recommendation of a cap on Asher's sentence a quid pro quo for Asher's testimony against Sutton.

Elliott considered Asher's denial to be a lie. Elliott testified that, if he had known the details of Asher's plea agreement, he would have asked Asher more specific questions about it. At the time of Sutton's trial, Elliott knew that Asher had entered a guilty plea, but had not yet

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been sentenced. Elliott assumed this meant that Asher would probably get something for testifying. While Elliott and Kakac had discussed the fact that Asher had pleaded guilty, Elliott did not recall discussing the specifics of the plea agreement. Elliott did not have any indication that a specific promise had been made to Asher related to a specific case. Elliott also did not know that the charges against Asher had been reduced. While he did not think that Kakac was intentionally trying to hide anything, Elliott thought Kakac probably knew that Asher would get something for his testimony.

Asher's attorney, David Williams, did not view testimony in the Sutton case as a specific part of the cooperation expected of Asher, nor consider the situation as a "pure offer and acceptance." However, Williams knew that Asher would be testifying against Sutton. In Williams's opinion, Asher "knew what he was there for."

At the disciplinary hearing, Kakac acknowledged that, in retrospect, Asher's statement certainly appeared false and that he should have recognized Asher's answer as improperly narrow.

During his closing argument at Sutton's trial, Kakac argued that Asher was believable, despite Asher's illegal activities. In that context, Kakac noted that Asher was waiting to be sentenced.

Elliott began his closing argument by focusing on Asher's testimony. Elliott argued that Asher stated that he pled guilty in June and then denied that he was getting anything for his testimony. Elliott argued that, given the passage of time, it was obvious that Asher was getting something for his testimony or he would have already been sentenced. Elliott argued that the State was waiting to have Asher sentenced until after he testified at Sutton's trial. Elliott's theory was that the methamphetamine belonged to Asher and the other occupant of the house,

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not to Sutton. Elliott argued that Asher had no viable defense and pled guilty, with the goal of working out a deal with the State. Elliott contended that Asher had already received one benefit from his plea, even though he denied that he was hoping to receive any benefit from his testimony, in that he was in jail before he pled guilty, but was released thereafter. Elliott argued that Asher certainly had received something or he would not have testified.

In rebuttal, Kakac argued that Asher told the jury he had not gotten anything because of his testimony. After referencing Elliott's argument about the delay in sentencing Asher, Kakac argued "I told you he was promised nothing. He was offered nothing…He ‘fessed up to what he did … (and) is telling you what the rest of the story was."

Kakac testified that, in making this argument, Kakac was focused on the fact that no promises were in evidence, as well as the absence of a specific quid pro quo. Kakac acknowledged in retrospect that he should have acted differently and would now correct such a statement.

The jury convicted Sutton of unlawful possession with intent to deliver. Sutton was sentenced to four years imprisonment.

Asher was sentenced the following month. During Asher's sentencing hearing, Kakac referred to Asher's testimony during Sutton's trial and stated that the guilty verdict against Sutton was largely due to Asher's assistance.

Sutton appealed his conviction. The Appellate Court reversed the conviction based on prosecutorial misconduct by Kakac, reviewing the issues Sutton raised as plain error.

LEGAL ANALYSIS

The Administrator must prove the misconduct charged and do so by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390, 237 Ill. Dec. 760

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(1999). While the clear and convincing evidence standard is less stringent than proof beyond a reasonable doubt, it requires more than a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 207 Ill. Dec. 311 (1995); People v. Williams, 143 Ill. 2d 477, 484, 577 N.E.2d 762, 160 Ill. Dec. 437 (1990). Clear and convincing evidence requires a high level of certainty. In re Stephenson, 67 Ill. 2d 544, 556, 367 N.E.2d 1273, 10 Ill. Dec. 507 (1977). It means a degree of proof that, considering all the evidence, produces a firm and abiding belief that it is highly probable that the proposition at issue is true. Cleary & Graham, Handbook of Illinois Evidence, sec.301.6 (8th ed. 2004).

Factual findings of the Hearing Board are not reversed unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). This is a highly deferential standard; a factual finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill. 2d at 542, 848 N.E.2d 961, 302 Ill. Dec. 397. This standard of review does not permit the Review Board to overturn factual findings of the Hearing Board merely because an opposite conclusion is reasonable or because the Review Board disagrees with the Hearing Board's factual conclusions. Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397.

The reviewing tribunal is responsible for correcting errors in the application of the law to the facts, Winthrop, 219 Ill. 2d at 543, 848 N.E.2d 961, 302 Ill. Dec. 397, and for determining whether or not a particular set of facts constitutes the misconduct charged. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E. 2d 906, 206 Ill. Dec. 654 (1994); In re Owens, 144 Ill. 2d 372, 377, 581 N.E.2d 633, 163 Ill. Dec. 479 (1991). Such issues are issues of law, In re Ushijima, 119 Ill. 2d 51, 57, 518 N.E.2d 79, 115 Ill. Dec. 548 (1987), to which a de novo standard of review applies. Discipio, 163 Ill. 2d at 527, 645 N.E. 2d 906, 206 Ill. Dec. 654; In re

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Brodsky, 01 CH 42 (Review Board Aug. 21, 2003), approved and confirmed, M.R. 19007 (Jan. 20, 2004).2

The Administrator objects that the Hearing Board erred by failing to find some of the misconduct charged.

First, the Administrator contends that, by falsely stating in court that Asher's 1999 conviction was for chemical breakdown, rather than unlawful manufacture of a controlled substance, Kakac violated Rule 3.3(a)(1).

Rule 3.3(a)(1) provides that a lawyer appearing in a professional capacity before a tribunal shall not make a statement of material fact or law to the tribunal which the lawyer knows or reasonably should know is false. While the term "knows" requires actual knowledge, "reasonably should know" does not, instead indicating that a lawyer of reasonable prudence and competence would ascertain the matter in question. Rules of Professional Conduct, Terminology. Thus, Rule 3.3(a)(1) does not require actual knowledge that the statement is false. See In re Montalvo, 98 SH 11 (Review Board May 12, 2000), petition for leave to file exceptions allowed, M.R. 16865 (Sept. 22, 2000); In re Ekechukwu, 05 CH 70 (Review Board May 14, 2008), petition for leave to file exceptions allowed, M.R. 22504 (Sept. 17, 2008).

In his answer, Kakac admitted that he should have known that his representation as to the nature of Asher's 1999 conviction was false. This is a judicial admission, which binds Kakac. See Renshaw v. Black, 299 Ill. App.3d 418, 701 N.E.2d 553, 233 Ill. Dec. 703 (5th Dist. 1998); Burns v. Michelotti, 237 Ill. App.3d 923, 932, 604 N.E.2d 1144, 178 Ill. Dec. 621 (2d Dist. 1992); Cleary & Graham, sec.802.11. Kakac's testimony that he acted in subjective good faith cannot be permitted to contradict his admission that he should have known that the statement was false. See In re Bulger, 02 CH 40 (Review Board May 3, 2004), approved and

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confirmed, M.R. 19550 (Sept. 27, 2004); In re Tankus, 96 CH 239 (Review Board Nov. 30, 1998), approved and confirmed, M.R. 15557 (March 23, 1999). While we accept the Hearing Board's factual finding that Kakac's misstatement was an unintentional error, see generally, Winthrop, 219 Ill. 2d at 542, 848 N.E.2d 961, 302 Ill. Dec. 397, Rule 3.3(a)(1) does not require actual knowledge. Consequently, the Hearing Board erred, as a matter of law, in finding that, given the lack of intent to deceive, Kakac did not violate Rule 3.3(a)(1). In re Ducey, 03 SH 123 (Review Board Jan. 21, 2009), approved and confirmed, M.R. 23053 (May 18, 2009).

The Hearing Board also viewed Kakac's misrepresentation as not material. However, materiality depends, at least in part, on the purpose of the proceeding in which the misrepresentation was made. See Winthrop, 219 Ill. 2d at 557, 848 N.E.2d 961, 302 Ill. Dec. 397. Kakac erroneously described the nature of Asher's prior conviction during a proceeding in which the court was determining whether or not the defense could use that conviction to impeach Asher. The nature and seriousness of the offense is one of the factors considered in making this determination, i.e., in deciding whether the probative value of the prior conviction outweighs the danger of unfair prejudice from it. See generally People v. Montgomery, 47 Ill. 2d 510, 516, 268 N.E.2d 695 (1971); Cleary & Graham, sec.609.4. Unlawful manufacture of a controlled substance is a more serious offense than unlawful chemical breakdown of a controlled substance. See 720 ILCS 570/401(c)(6.5); 720 ILCS 570/401.5. It is also the type of conduct that would normally be admissible as a basis for impeachment. People v. Walker, 157 Ill. App. 3d 133, 136-37, 510 N.E.2d 29, 109 Ill. Dec. 408 (1st Dist. 1987).3

The Administrator next contends that the Hearing Board erred in failing to find that Kakac suppressed evidence by failing to disclose the terms of Asher's plea agreement to Elliott. The Hearing Board found that this conduct violated Rules 1.2(f)(3) and 3.8(c), but not

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Rule 3.3(a)(13). The Administrator similarly argues that the Hearing Board erred in failing to find that Kakac suppressed evidence in violation of Rule 3.3(a)(13) by failing to correct Asher's testimony that he was offered nothing in return for his testimony against Sutton, conduct that the Hearing Board found violated Rule 1.2(f)(3).

Rule 1.2(f)(3) provides that, in representing a client, an attorney shall not fail to disclose that which the lawyer is required by law to reveal. Rule 3.8(c) provides, inter alia, that a prosecutor shall make timely disclosure to the defense of the existence of evidence known to the prosecutor that tends to negate the guilt of the accused. Under Rule 3.3(a)(13), an attorney appearing in a professional capacity before a tribunal shall not suppress any evidence that the lawyer or client has a legal obligation to reveal or produce.

In the context of this case and the conduct at issue here, different conclusions as to Rules 1.2(f)(3) and 3.3(a)(13) are inconsistent.

The Hearing Board's findings that Kakac violated Rule 1.2(f)(3) and 3.8(c) by failing to disclose Asher's plea agreement to Elliott encompass the same elements needed to find a violation of Rule 3.3(a)(13). The Hearing Board concluded that Kakac failed to disclose Asher's plea agreement and its terms to Elliott and that he was legally required to disclose this information. See generally Supreme Court Rule 412 (188 Ill. 2d R. 412(c); People v. Torres, 305 Ill. App. 3d 679, 712 N.E.2d 835, 238 Ill. Dec. 731 (2d Dist. 1999); People v. Sharrod, 271 Ill. App. 3d 684, 648 N.E.2d 1141, 208 Ill. Dec. 219 (1st Dist. 1995).

In relation to Kakac's failure to correct Asher's testimony that he had not been offered anything in return for his testimony, the Hearing Board's findings likewise cover the same elements necessary for a violation of Rule 3.3(a)(13). The Hearing Board found that Asher obviously received some offer and benefit in return for his testimony, that his contrary testimony

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was false, and that Kakac knew or should have known that Asher's testimony was false. The Hearing Board concluded that Kakac had a duty to correct such false testimony. Based on these findings, the Hearing Board determined that Kakac's failure to correct Asher's false testimony violated Rule 1.2(f)(3). The same findings also establish a violation of Rule 3.3(a)(13).

Conduct that violates Rule 1.2(f)(3) typically is also found to violate Rule 3.3(a)(13). E.g., In re Nalick, 02 SH 63 (Hearing Board Oct. 15, 2003), approved and confirmed, M.R. 19294 (May 17, 2004); In re Toohill, 99 SH 11 (Review Board June 29, 2000), petition for leave to file exceptions denied, M.R. 16952 (Nov. 22, 2000); see also In re Murphy and Campbell, 06 SH 74 & 75 (cons.), M.R. 21566 (May 18, 2007). The Hearing Board report does not explain its reasons for finding that Kakac's conduct did not violate Rule 3.3(a)(13). Therefore, it cannot be assumed that an element necessary to a violation of Rule 3.3(a)(13) was missing. Compare In re Norton, 07 SH 37 (Hearing Board Aug. 29, 2007), reversed on other grounds, 07 SH 37 (Review Board June 8, 2009).

Given these circumstances, the Hearing Board erred in finding that Kakac's failure to disclose the terms of Asher's plea agreement and failure to correct Asher's false testimony concerning that plea agreement did not violate Rule 3.3(a)(13).

The Administrator also contends that the Hearing Board erred in failing to find that Kakac's failure to correct Asher's false statement that he was offered nothing in exchange for his testimony violated Rule 8.4(a)(4).

Rule 8.4(a)(4) provides that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Under past precedent, proof that the respondent knew or should have known that something was false could suffice to show a violation of Rule 8.4(a)(4), even absent an actual intent to deceive, where the respondent acted with reckless

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disregard for truth or falsity. E.g., In re Montalvo, 98 SH 11 (Review Board May 12, 2000), petition for leave to file exceptions allowed, M.R. 16865 (Sept. 22, 2000). However, under past case law, it was also clear that the Hearing Board was not required to find a violation of Rule 8.4(a)(4) where it found that the respondent did not have an intent to deceive; this was particularly true where the issues involve a failure to disclose, rather than an affirmative false statement. E.g., In re Witt, 145 Ill. 2d 380, 397, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991).

After this case was briefed, the Court issued its opinion in In re Cutright, 233 Ill. 2d 474, 910 N.E.2d 581, 331 Ill. Dec. 172 (2009). Under Cutright, purposeful misconduct, and an intent to deceive, are required to prove a violation of Rule 8.4(a)(4), particularly in situations such as this one, where the charges are based on the respondent's silence. Absent proof of an intent to deceive, Rule 8.4(a)(4) is not violated. Cutright, 233 Ill. 2d at 489, 910 N.E.2d 581, 331 Ill. Dec. 172; In re Murray, 07 CH 63 (Review Board Dec. 31, 2009); In re Klytta and Klytta, 06 CH 60 & 61 (cons.) (Review Board Dec. 30, 2009).

The nature of the respondent's knowledge or intent is a factual issue. In re Ingersoll, 186 Ill. 2d 163, 168-69, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999). In other words, this is an issue within the province of the Hearing Board, as trier of fact. Ingersoll, 186 Ill. 2d at 168-69, 710 N.E.2d 390, 237 Ill. Dec. 760. The Hearing Board's report does state that Kakac knew or should have known that Asher's testimony that he had not been offered anything in return for his testimony was false. However, the Hearing Board expressly concluded that there was not clear and convincing evidence that, in failing to correct this false testimony, Kakac acted with an intent to deceive. That conclusion was the basis for the Hearing Board's finding that the Administrator had not proven a violation of Rule 8.4(a)(4). We defer to the Hearing Board on this factual issue and affirm its conclusion that the Administrator did not prove a violation of

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Rule 8.4(a)(4) based on Kakac's failure to correct Asher's false testimony that he had not been offered anything in exchange for his testimony. See Cutright, 233 Ill. 2d at 489, 910 N.E.2d 581, 331 Ill. Dec. 172.

The remaining issue concerns the sanction. The Hearing Board majority recommended a thirty-day suspension. The third panel member recommended censure. We agree with the Hearing Board majority's recommendation of a thirty-day suspension.

The Hearing Board's recommendation as to discipline is advisory. Ingersoll, 186 Ill. 2d at 178, 710 N.E.2d 390, 237 Ill. Dec. 760. Determining the proper sanction in any given case depends on the unique facts and circumstances of the case, but with recognition of the system's goal of having some consistency in the sanctions imposed in similar cases. Ingersoll, 186 Ill. 2d at 177-78, 710 N.E.2d 390, 237 Ill. Dec. 760; In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). The purpose of discipline is not punishment, but to protect the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Spak, 188 Ill. 2d 53, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999); Timpone, 157 Ill. 2d at 197, 623 N.E.2d 300, 191 Ill. Dec. 55. Aggravating and mitigating factors are considered. Witt, 145 Ill. 2d at 398, 583 N.E.2d 526, 164 Ill. Dec. 610. The harm caused by the attorney's misconduct is relevant to the sanction. In re Gorecki, 208 Ill. 2d 350, 364, 802 N.E.2d 1194, 280 Ill. Dec. 673 (2003). Similarly, the potential for harm is relevant to the sanction. Discipio, 163 Ill. 2d at 530, 645 N.E.2d 906, 206 Ill. Dec. 654.

The deterrent value of a sanction may also be considered in determining discipline. Discipio, 163 Ill. 2d at 528, 645 N.E.2d 906, 206 Ill. Dec. 654. Deterrence is an especially important consideration in this case.

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The prosecutor in a criminal case does not represent an ordinary party, but the government. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.2d 1314, 1321 (1935). In a criminal proceeding, the government's interest is not merely to obtain a conviction, but rather to have justice be done. Berger, 295 U.S. at88, 55 S.Ct. at 633, 79 L.Ed.2d at 1321. Consequently, the prosecutor has as much of a duty to refrain from improper methods that might produce a wrongful conviction as to use every legitimate means to bring about a just conviction. Berger, 295 U.S. at 88, 55 S.Ct. at 633, 79 L.Ed.2d at 1321. As the representative of all the people, including the defendant, the prosecutor is obligated to safeguard the constitutional rights of the defendant, in the same manner as those of any other citizen. Committee Comments following Rule 3.8, Special Supreme Court Committee on Capital Cases (Mar. 1, 2001).

Despite these principles, prosecutorial misconduct occurs with alarming frequency. People v. Johnson, 208 Ill. 2d 53, 803 N.E.2d 405, 425, 281 Ill. Dec. 1 (2003). In recent years, the Supreme Court has expressed particular concern with this problem. E.g., People v. Wheeler, 226 Ill. 2d 92, 871 N.E.2d 728 (2007); Johnson, 208 Ill. 2d 53, 803 N.E.2d 405, 281 Ill. Dec. 1. Prosecutorial misconduct undermines the integrity of the criminal justice system and seriously decreases the public perception of the fairness and reliability of criminal trials. See Johnson, 208 Ill. 2d 53, 803 N.E.2d at 425, 281 Ill. Dec. 1. This fact, in and of itself, warrants serious treatment of prosecutorial misconduct by the disciplinary system, which exists to, inter alia, uphold the integrity of the legal profession and protect the administration of justice from reproach. See In re Goodman, 93 CH 492 (Review Board May 18, 1995), approved and confirmed, M.R. 11497 (Sept. 29, 1995).

Furthermore, prosecutorial misconduct also threatens the trustworthiness of individual trials. Johnson, 208 Ill. 2d 53, 803 N.E.2d at 425, 281 Ill. Dec. 1. This is particularly

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true where multiple instances of misconduct occur in a single trial. Johnson, 208 Ill. 2d 53, 803 N.E.2d at 425, 281 Ill. Dec. 1. Obviously, a situation in which an innocent person was convicted because of prosecutorial misconduct represents graver misconduct. However, harm results from prosecutorial misconduct even in less egregious circumstances. Where the prosecutor's misconduct deprives a defendant, guilty or innocent, of a fair trial, the defendant's conviction may be reversed, causing a need for further legal proceedings. Sutton's case exemplifies such a situation.

We intend, by the discipline recommended here, to send a very clear message that misconduct by attorneys prosecuting criminal cases will not be tolerated. The risk that a prosecutor's misconduct may cause reversal of the underlying criminal conviction has not served to meet the goal of deterring prosecutors from engaging in misconduct. Wheeler, 226 Ill. 2d 92, 871 N.E.2d at 744. Public prosecutors must be at least as amenable to professional discipline as other attorneys. In re Chancey, 91 CH 348 (Review Board Apr. 21, 1994), approved and confirmed, M.R. 10266 (Sept. 23, 1994). This is particularly true of the person who is the State's Attorney, such as Kakac. Cf., In re Armentrout, 99 Ill. 2d 242, 255-56, 457 N.E.2d 1262, 75 Ill. Dec. 703 (1983). Where, as here, the Administrator proves by clear and convincing evidence that an individual prosecutor has violated ethical standards and engaged in professional misconduct, that attorney is subject to discipline.

In addition to these general overriding principles, the specific misconduct at issue must be considered. Significantly, the Appellate Court concluded that Kakac's misconduct, as a whole, operated to deprive Sutton of a fair trial.

Kakac misstated the nature of Asher's prior conviction. This was information that could have been used to impeach Asher, an important prosecution witness, but was excluded by

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the court. Kakac failed to fulfill his obligation to disclose potentially exculpatory evidence to the defense. Given this omission, Sutton's attorney did not know that Asher had entered into a plea agreement with Kakac's office or the specifics of that agreement. This information also could have been used to impeach Asher. Kakac did not correct Asher's false testimony that he had not been offered anything in exchange for his testimony.

The Hearing Board found that Kakac acted unintentionally or without any intent to deceive in relation to the foregoing conduct. The Hearing Board's findings as to the prosecutor's intent is a vital consideration in determining the discipline to recommend. Inadvertent mistakes, unaccompanied by any improper intent, should not, at a minimum, lead to harsh discipline. Depending on the circumstances, inadvertent errors or misstatements without any intent to deceive may not even constitute misconduct. The principle that not all attorney errors constitute ethical violations, In re Mason, 122 Ill. 2d 163, 522 N.E.2d 1233, 119 Ill. Dec. 374 (1988), applies equally to prosecutors.

However, Kakac knowingly made affirmative false representations during his argument to the jury. This is the most serious misconduct here and is highly significant in our decision to recommend a suspension.

Even though he knew that Asher had received consideration in return for his cooperation with law enforcement officials, Kakac stated during his rebuttal argument that Asher had not received anything, and he did so by giving the jury his personal assurance, as State's Attorney, that Asher "was promised nothing." This would have been an improper argument even if true. But it was not true, nor was it an omission or inadvertent error. Instead, it was an actual, knowing false statement. The jury would be especially inclined to rely on such representations

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by the State's Attorney, whom the jurors would expect to know of, and be truthful concerning, any leniency afforded to a prosecution witness.

Further, Kakac made this false statement during his rebuttal argument, i.e., at a time when Sutton's attorney would not have had any opportunity to respond. In contrast to its findings as to Kakac's other errors, the Hearing Board found that Kakac acted knowingly in relation to his false argument. This makes this case much more serious than it would have been if only unintentional discovery violations were present.

The need for deterrence and the seriousness of Kakac's misconduct warrant a suspension. The cases on which Kakac relies, in which the respondents were censured or reprimanded, are distinguishable.

Despite the seriousness of their misconduct, the respondents in In re Murphy and Campbell, 06 SH 74 & 75 (cons.), M.R. 21566 (May 18, 2007) did not make affirmative false statements to the jury. Further, the exculpatory evidence that Murphy and Campbell failed to disclose came to light before the conclusion of the trial and was addressed during trial, such that there was no reversible error. See United States v. Childs, 447 F.3d 541, 545-46 (7th Cir. 2006).

The misconduct in In re Chancey, 91 CH 348 (Review Board April 21, 1994), approved and confirmed, M.R. 10266 (Sept. 23, 1994), did not occur in the context of a criminal trial. Chancey engaged in very serious misconduct, including falsifying a court order. However, in Chancey, there were extreme mitigating circumstances. These mitigating circumstances included the fact that Chancey acted as he did in an effort to insure the safety of a young child who had been abducted and that he was motivated solely by the need to protect the child.

Kakac also relies on In re Garza, 86 CH 21 (Hearing Board Dec. 18, 1986), approved and confirmed, M.R. 4206 (Apr. 3, 1987). Garza, however, significantly predates the

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Court's recent expressions of concern with prosecutorial misconduct and does not indicate that a less severe sanction should be imposed here.

Given all the circumstances, however, a lengthy suspension such as the one-year suspension sought by the Administrator is not warranted.

A short suspension should suffice to serve the important goal of deterrence. This is particularly true given the fact that, in Illinois, disciplinary cases against prosecutors for misconduct during criminal trials have been very rare. This case will put Illinois prosecutors on notice that such misconduct will not be tolerated.

The Administrator relies on cases from other jurisdictions in which longer suspensions were imposed. E.g., Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001); Committee on Professional Ethics v. Ramey, 512 N.W.2d 569 (Iowa 1994). However, those cases involved less significant mitigation than is present here. Cox also involved aggravating factors not present here, including the fact that Cox's misconduct resulted in the dismissal of serious criminal charges, with prejudice.

Kakac presented extensive mitigating evidence. This is highly significant. E.g., Gorecki, 208 Ill. 2d 350, 802 N.E. 2d 1194, 280 Ill. Dec. 673. This evidence persuades us, as it did the Hearing Board, that Kakac does not deserve a harsh sanction, despite the seriousness of his misconduct.

The evidence does not reveal any pattern of misconduct by this prosecutor. Testimony from Kakac, his character witnesses, and two attorneys who regularly opposed Kakac demonstrate that Kakac's misconduct in Sutton's case was not consistent with Kakac's usual prosecutorial behavior. This situation appears to have been a single incident in an unblemished career otherwise characterized by integrity.

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While finding that Kakac knowingly made false statements in his rebuttal argument, the Hearing Board was convinced that otherwise Kakac had not acted with an improper motive or intent to deceive. Even opposing counsel believed that Kakac had not acted with an improper intent. The lack of an improper motive is a significant mitigating factor. See Spak, 188 Ill. 2d at 69, 719 N.E.2d 747, 241 Ill. Dec. 618.

The Hearing Board also considered Kakac to be a generally credible person. He was candid and cooperated in the disciplinary proceedings. He has no prior discipline, has engaged in professional activities and community service, and has served with distinction in the military. The mitigating evidence is further detailed in the Hearing Board report. Given all the circumstances, there is no legitimate purpose to be served by a longer suspension.

For these reasons, we affirm the Hearing Board's findings as to the misconduct charged, except we conclude that, by misstating the nature of Asher's prior conviction and failing to disclose Asher's plea agreement or correct Asher's false testimony that he had received nothing, Kakac violated Rule 3.3(a)(13). We recommend that Respondent-Appellant, Kevin Carroll Kakac, be suspended for thirty (30) days.

Date Entered: 8 February 2010

Respectfully Submitted,

Stuart R. Lefstein
Bruce J. Meachum
John W. Rapp, Jr.

_______________________
1
The Hearing Board also found that the Administrator had not proven that this conduct violated Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)).  The Administrator's arguments focus on the Hearing Board's failure to find a violation of Rule 3.3(a)(1) and do not appear to challenge the finding that this conduct did not violate Rule 8.4(a)(4).  We analyze the issues accordingly.  However, the Hearing Board's conclusion that the Administrator did not violate Rule 8.4(a)(4) would be upheld, given the Hearing Board's express finding that Kakac did not act with an intent to deceive in misstating the nature of Asher's prior conviction.  In re Cutright, 233 Ill. 2d 474, 910 N.E.2d 581, 331 Ill. Dec. 172 (2009).

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2
The Administrator seeks to have the issues reviewed under a clearly erroneous standard.  While used in In re Pierce, 02 CH 88 (Review Board July 29, 2005), petitions for leave to file exceptions denied, M.R. 20397 (Nov. 22, 2005), the Review Board has rejected this standard in subsequent cases.  E.g. In re Wiggins, 04 CH 33 (Review Board Sept. 8, 2007), petition for leave to file exceptions denied, M.R. 22015 (Mar. 17, 2008); In re Feeley, 03 CH 78 (Review Board), petition for leave to file exceptions allowed, discipline modified, M.R. 20740 (March 21, 2006).  The Supreme Court applied the traditional standard of review applicable to Hearing Board factual findings in its recent decision in Cutright, 233 Ill. 2d 474, 910 N.E.2d 581, 331 Ill. Dec. 172, which was issued after briefing in this case.

3 In fact, in Sutton's appeal from his conviction, the State confessed error as to this issue.