Filed August 5, 2008
In re Kimberly A. Norton
Commission No. 07 SH 37
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) communicating with a party that the lawyer knew to be represented by another lawyer in the matter without obtaining the consent of the lawyer representing the other party; 2) suppressing evidence the lawyer or client has a legal obligation to reveal or produce; 3) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; 4) withdrawing from employment without delivering all papers and property to which the client is entitled; 5) engaging in conduct that is prejudicial to the administration of justice; and 6) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: Rules 1.16(d), 3.3(a)(13), 4.2, and 8.4(a) (4) & (5) of the Illinois Rules of Professional Conduct; and Supreme Court Rule 770.
RECOMMENDATION: Suspension from the practice of law for forty-five (45) days.
DATE OF OPINION: August 5, 2008.
HEARING PANEL: Leo H. Konzen, Claire A. Manning, and Richard Matzdorff.
RESPONDENT'S COUNSEL: William F. Moran, III.
ADMINISTRATOR'S COUNSEL: Denise Church.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
KIMBERLY A. NORTON,
Commission No. 07 SH 37
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on March 28, 2008 at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois, before a Panel of the Hearing Board consisting of Leo H. Konzen, Chair, Claire A. Manning, lawyer member, and Richard Matzdorff, public member. The Administrator was represented by Denise Church. The Respondent appeared and was represented by William F. Moran, III.
The Administrator filed an initial Complaint against the Respondent on May 9, 2007. An Amended Complaint was filed, and finally a Second Amended Complaint was filed on August 9, 2007. The Second Amended Complaint alleged the following facts:
On April 24, 2006, Anthony Bell shot and killed Patrick Thomas-Lynch with a handgun. On the same date, Bell made a videotaped statement to the police. In his statement, Bell said that Christopher Mixon handed him the gun that Bell used to shoot Thomas-Lynch.
On April 25, 2006, Bell and Mixon were charged with First Degree Murder arising from the shooting of Thomas-Lynch. Mixon was charged under the theory of accountability. (People v. Bell, Knox County, No. 06 CF 241; People v. Mixon, Knox County, No. 06 CF 242). Knox
County Public Defender James Harrell was appointed to represent Bell. An alternate or conflict Public Defender, Geoffrey Campbell, was appointed to represent Mixon. However, when Campbell went on medical leave, the Respondent was appointed to represent Mixon on May 8, 2006.
On May 10, 2006, Bell sent a letter to the Respondent stating "I will testify to the fact that Christopher Mixon did not hand me no gun. I also wanted to know if you would pick up my case because Mr. Harrell isn't doing anything I ask of him." The Respondent asked Mack Glass, an investigator employed by Johnson Investigations, to go see Bell at the county jail. The Respondent did not inform Mr. Harrell of, or obtain his consent for, investigator Glass to talk with Bell. On May 17, 2006, Glass interviewed Bell at the jail.
On May 23, 2006, the Respondent, Glass, and a court reporter went to see Bell at the county jail. When the Respondent arrived at the jail she wrote on the visitor record that she was there to see Mixon, who was her client. She knew or should have known her representation on the visitor record was false because she did not speak to Mixon on this occasion, but spoke only with Bell. She did not inform Bell's attorney of, or obtain his consent for, this interview of Bell.
During the Respondent's visit with Bell at the jail on May 23, 2006, a sworn statement was obtained from Bell. The Respondent did not ask Bell if he wished to consult with his attorney. In his sworn statement, Bell said that Mixon did not hand him the gun with which Bell shot Thomas-Lynch. This contradicted what Bell had said in his earlier statement to the police. The Respondent did not inform Bell's attorney that she had taken a statement from Bell.
On June 7, 2006, the court re-appointed Geoffrey Campbell to represent Mixon. On June 15, 2006, Campbell sent a letter to the Respondent requesting the following:
Any copies of reports, videos or photographs provided to you by the State's Attorney's Office including but not limited to crime scene photographs; autopsy
reports; video statements of co-defendants, witnesses and police units; police reports; copies of documents. During a conference with Mark Glass, Johnson Investigations, he informed me that he had done some preliminary interviews and taken some photographs of the alleged crime scene which he gave to you and kept no copies. I would like to request copies of any and all information provided to you as a product of that investigation.
The Respondent replied on June 15, 2006, by asking Campbell for a subpoena. On June 27, 2006, a subpoena was served on the Respondent for the above information. In response to the subpoena, the Respondent tendered various documents, but did not provide a copy of the transcript of Bells' statement. On July 11, 2006, the Respondent wrote to Mixon and stated: "I am not holding on to any of the evidence in your case that Geoff Campbell can't get by just asking the State's Attorney's Office to make him a copy." The Respondent knew the foregoing statement was false because she had a copy of Bell's statement of May 23, 2006, which had not been provided to the State's Attorney.
At no time prior to the start of Mixon's trial, on August 21, 2006, did the Respondent inform Mixon's attorney that she had obtained a sworn statement in which Bell said that Mixon had not handed Bell the gun used to shot Thomas-Lynch.
Bell refused to testify at Mixon's trial on Fifth Amendment grounds. The prosecutor was allowed to play the videotape of Bell's statement to the police, in which Bell said Mixon gave him the gun Bell used to shoot Thomas-Lynch. Mixon was convicted of First Degree Murder on August 24, 2006.
On November 2, 2006, the trial judge granted Mixon a new trial, stating that Mixon's attorney, Geoffrey Campbell, rendered ineffective assistance of counsel by not reviewing the transcript of the Respondent's interview with Bell on May 23, 2006.
Based upon the above, the Administrator charged that the Respondent engaged in the following misconduct: (a) communicated with a party she knew to be represented by another
lawyer in the matter without obtaining the consent of the lawyer representing such other party, in violation of Rule 4.2 of the Illinois Rules of Professional Conduct; (b) suppressed any evidence that the lawyer or client has a legal obligation to reveal or produce, in violation of Rule 3.3(a)(13); (c) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4); (d) withdrew from employment without delivering all papers and property to which the client is entitled, in violation of Rule 1.16(d); (e) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and (f) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.
The Respondent filed an Answer to the Second Amended Complaint, in which she admitted many of the factual allegations, denied others, and denied all of the charges of misconduct.
The Administrator presented the testimony of James H. Harrell, Mac Glass, Stephen Johnson, Craig Carpenter, and Geoffrey Campbell. The Administrator's Exhibits 1 through 24 and 26 were admitted into evidence. (Tr. 8) The Respondent testified on her own behalf. She also presented the testimony of Judith Johnson, Paul Mangieri, Anthony Vaupel, Judy Guenseth, Bobbi Altiere, Mark Woodring, Christopher Kanthak, and the deposition testimony of Dwayne I. Morrison. The Respondent's Exhibits 1 through 15 were admitted into evidence. (Tr. 9)
James H. Harrell
Mr. Harrell testified that he has been the Knox County Public Defender since 1991. The Respondent was an assistant public defender for a "couple of years" in the "early ‘90s." She is currently in private practice. Previously in the public defender office, there was one public
defender and two assistants. However, by 2006 the office had been modified so that the two assistant positions were turned into conflict or alternate public defender positions. The conflict or alternate public defenders were employed by Knox County and had separate offices. Mr. Harrell explained that the purpose of this change "was to save on costs that were used for conflict attorneys that would be used outside of the public defender's office." (Tr. 26-28)
Mr. Harrell was appointed to represent Anthony Bell, who was charged with First Degree Murder and Aggravated Discharge of a Firearm, on April 26, 2006. (Adm. Ex. 3) Alternate public defender Geoffrey Campbell was appointed to represent Christopher Mixon on April 28, 2006 (Adm. Ex. 1). The charges against Bell and Mixon arose out of the same incident, and Harrell described them as "co-defendants." He said that during his 18 years as public defender he has "referred to two people charged with the same crime, the same transaction, the same place as co-defendants," regardless of whether they were charged in the same case number. He acknowledged that he is not aware of any rule, statute or precedent that defines co-defendants to include the situation of Bell and Mixon. (Tr. 28-29, 32, 44-47, 56)
After the Respondent replaced Campbell as Mixon's appointed attorney, she interviewed Harrell's client, Bell, at the county jail. She did not inform Harrell that she was going to do so. Harrell said that usually counsel for an individual involved in the same crime as Harrell's client would ask permission to talk with his client. Harrell subsequently found out that the Respondent had obtained a transcribed statement from Bell. In this statement (Adm. Ex. 8), Bell said that Mixon "did not hand him the gun that was used to shoot the victim." (Tr. 31, 36-37, 60-61)
When Harrell found out about the statement Bell made to the Respondent (Adm. Ex. 8), he filed a motion to suppress it. (Adm. Ex. 15) The trial judge found that no state action by jail employees was involved in obtaining the statement, and denied the motion to suppress. Harrell
said he considered that statement when he and Bell discussed whether Bell should testify at his trial. Bell did not testify and the foregoing statement was not introduced. The prosecutor was allowed to introduce Bell's statement to the police on April 25, 2006 (Adm. Ex. 4). (Tr. 37-43, 49-52)
Mr. Harrell further testified that, when another attorney takes over the representation of a client, he turns over all documents and other information, except for work product to the new attorney. He explained that if "I had evidence that would help my client, that information would be something that would be needed by the new attorney that comes on to the case." He also stated that he would turn over information about whether he or his investigator had interviewed witnesses. (Tr. 44, 52-58)
Finally, Mr. Harrell said that the Respondent has not apologized to him for interviewing his client or acknowledged that she should not have done so. (Tr. 43)
Mr. Glass testified that he is a private investigator employed by Steve Johnson. In 2006, he worked for the Respondent during her representation of Christopher Mixon. He interviewed Mixon at the Respondent's request. During this interview, Mixon said that Anthony Bell wanted to talk with Glass. Glass then spoke with the Respondent about talking with Bell. The Respondent told him to do so, but did not tell him "to do this secretly or to not let people know why [he was at the jail]." (Tr. 62-63, 71-72, 75)
Glass interviewed Bell at the county jail. Bell indicated that he was "very dissatisfied with his attorney," and "wanted to give us some information." Glass prepared notes of his interview with Bell. (Adm. Ex. 6) After the interview with Bell, Glass met with the Respondent at her office. He said he did not recall reading from his notes during his meeting with the
Respondent. Glass acknowledged he previously told an ARDC investigator that he did read from his notes while he was in the Respondent's office. (Tr. 65-66, 74)
Subsequently, on May 23, 2006, Glass accompanied the Respondent to the jail, and the Respondent took a statement from Bell before a court reporter. The jail visitor record for that date (Adm. Ex. 7) shows Glass did not sign in upon entering the jail. (Tr. 67-68, 70-71, 73)
When the Respondent was replaced by Geoffrey Campbell as Mixon's attorney, Steve Johnson told Glass that the Respondent "wanted me to turn over all my notes, photographs, reports and everything" to Johnson. Glass then gave everything he had, including the notes of his interview with Bell (Adm. Ex. 6), to Johnson. (Tr. 66-67, 73, 75-76)
Finally, Mr. Glass said that he told Geoffrey Campbell about the interview with Bell at the jail. He did not know when he told this to Campbell, but said he believed it was during his first meeting with Campbell after Campbell's reappointment in Mixon's case. (Tr. 68, 73)
Mr. Johnson testified that he is a private investigator and owns Johnson Investigations in Galesburg. He and his wife, Judy, are friends of the Respondent. (Tr. 78, 84)
In April 2006, the Respondent asked Johnson to investigate in a case pertaining to Christopher Mixon. Johnson assigned Mac Glass to the investigation. Johnson said that when he is hired by an attorney, he works for the attorney not for the attorney's client. (Tr.78-79, 85)
Johnson said that the Respondent did not ask him for any notes or other materials from the Mixon investigation, and the only things he turned over to her were photographs. She received no written report or interview notes. Johnson still has the original notes that Glass made of his interview with Anthony Bell. Johnson further testified that the Respondent told him "not to turn over anything to Mr. [Geoffrey] Campbell," who became Mixon's attorney after the
Respondent. She told Johnson that it "was considered her work product." Johnson acknowledged that there were "other witness interviews," and that the Respondent "instructed [him] to not give those to Geoff Campbell." However, Johnson inadvertently turned over to Campbell a copy of Glass' notes of his interview with Bell. (Tr. 80-82, 86-88)
In regard to the "sign-in sheet" at the Knox County Jail, Johnson said it is not enforced by the jailors and "sometimes you sign in and sometimes you don't." He acknowledged that when he did sign the sheet, he wrote the name of the inmate he was going to see and not the name of his client. (Tr. 83-85)
Craig Carpenter testified that he is the jail administrator for the Knox County Jail. He said that the jail visitor log (Adm. Ex. 7) is not filled out by every visitor to the jail. The information written on the log by visitors is not checked by jail staff. When the log is filled out correctly, it shows the inmate the visitor came to see. (Tr. 89-91)
Mr. Campbell testified that he has been an attorney since 1992 and is currently employed at a law firm in Rock Island. He previously was an alternate public defender in Knox County for about six years. (Tr. 96-97, 101)
In April 2006, in his capacity as alternate public defender, Campbell was appointed to represent Christopher Mixon in People v. Mixon, Knox County, No. 06 CF 242. When Campbell became ill, the Respondent, who was in private practice, was appointed to take over the representation of Mixon. The Respondent was appointed on May 8, 2006. (Adm. Ex. 1, p. 3) Subsequently, on June 7, 2006, Campbell was reappointed as the attorney for Mixon and handled the case at trial. (Tr. 97-98, 119; Adm. Ex. 1, p. 1-5)
Campbell said he was sure there were informal attempts to obtain information from the Respondent regarding what occurred during her representation of Mixon. On June 15, 2006, Campbell sent a letter to the Respondent asking for information about Mixon's case. (Adm. Ex. 12) The second paragraph of the letter mentioned a conference between Campbell and investigator Mac Glass, noted that Glass "informed me that he had done some preliminary interviews," and requested "copies of any and all information provided to you as a product of that investigation." Campbell acknowledged that he did not make a request for a transcript of a sworn statement in the letter. He never received the transcript of Bell's statement from the Respondent. (Tr. 98-100, 105-06, 122-24)
Campbell said he did not know when he first learned that Anthony Bell, who he described as Mixon's co-defendant, gave a statement to the Respondent, and did not recall if he had been aware of such a statement when he sent the letter to the Respondent on June 15, 2006. When asked whether investigator Glass told him about Bell's statement, Campbell responded that Glass "could have" mentioned it during their meeting on June 9, 2006, on June 27, 2006, or "somewhere in there." He also said he did not recall whether Mixon had mentioned the Respondent's interview with Bell when Campbell and Mixon met on June 14, 2006. (Tr. 99-100, 120-22, 128, 130-32)
In response to Campbell's June 15, 2006, request for information, the Respondent asked Campbell to subpoena the information. A subpoena was served on June 29, 2006. (Adm. Ex. 13) Campbell said that what he wanted from the Respondent was "any relevant information." He acknowledged that the language he used in the subpoena was not very clear and that "a literal reading" thereof did not cover the transcript of Bell's sworn statement. In response to the subpoena, Campbell received some photographs and statements, but did not receive a copy of the
transcribed interview the Respondent had with Bell. Campbell said it was on July 26, 2006, when the Respondent provided the materials in response to the subpoena. (Tr. 100-06, 108, 125, 126; Adm. Ex. 16)
On August 1, 2006, Campbell received a letter from Mixon, in which Mixon mentioned a statement by Bell to a court reporter. (Adm. Ex. 17, p. 2) Thus, as of August 1, 2006, which was about one week before the trial, Campbell was aware that Bell may have made a taped or transcribed statement. Campbell said he was still not sure whether there was a transcribed statement, because he only had Mixon's comments about it. Campbell then looked at the bill submitted by the Respondent in the court file. (Adm. Ex. 11) That public document in the court file showed that there had been a payment to a court reporter for a transcript of a statement by an eye-witness. (Adm. Ex. 1, p. 3, 4) Campbell said that after examining the foregoing document he "felt confident" for the "first time" but "there was actually a transcribed statement." (Tr. 108-09, 113-14, 132-33, 139)
On August 22, 2006, the second day of Mixon's jury trial, Campbell informed the State's Attorney, Paul Mangieri, of the transcript of Bell's statement to the Respondent. The State's Attorney brought the matter to the attention of the trial judge and moved to bar the introduction of Bell's statement because it was not disclosed in discovery. (Adm. Ex. 19, p.5-7) Campbell informed the judge that he had not seen the statement of Bell, that he had told Mixon that a copy of the statement could be obtained "but that would end up delaying the trial," and that Mixon "wanted to still go forward with the trial." There was no objection to the State's motion to exclude the statement, and the motion was granted (Adm. Ex. 17, p. 7-10). (Tr. 115)
At Mixon's trial, Bell did not testify. However, over objection, the State was allowed to present the videotaped statement Bell made to the police on April 25, 2006 (Resp. Ex. 8 and 9).
Bell's transcribed statement to the Respondent was not offered into evidence. Following the jury's verdict finding Mixon guilty of First Degree Murder (Adm. Ex. 1, p. 16), the trial judge granted Mixon a new trial on the "basis of ineffective assistance of counsel." (Adm. Ex. 20) The judge ruled that Campbell should have obtained and read the transcribed statement of Bell. (Tr. 116-18)
Campbell acknowledged that, prior to Mixon's trial, he was aware that Bell's statement to the Respondent on May 23, 2006, was exculpatory to Mixon, which meant it "probably is going to indicate that [Bell] made a statement that Chris Mixon did not give him the gun or Mixon was not present." However, he did not make further attempts to obtain the transcript of Bell's statement (Adm. Ex. 8) because he "didn't think it was important" and he had decided not to use it at Mixon's trial. Campbell noted that he learned from Bell's attorney that Bell was not going to testify at Mixon's trial. Campbell explained that if he had used the transcript of Bell's statement to the Respondent on May 23, 2006 (Adm. Ex. 8), it would have "opened the door" for the State's Attorney to then use Bell's videotape statement to the police on April 25, 2006 (Resp. Ex. 8 and 9). In other words, "I wasn't going to open the door to [the State's Attorney] being able to use the taped statement [of April 25, 2006] whereby the State gets to present the only evidence that—that my client handed the gun [to Bell]." Campbell said that, in his experience, the jury tends to believe what was said to the police, rather than a subsequent contrary statement. (Tr. 110-12, 128, 139-42)
Finally, Mr. Campbell said that he was reappointed to represent Mixon, to replace the Respondent, in order to save money for Knox County. He was paid a salary, regardless of the number of clients he represented while the Respondent, or other attorneys in private practice, would be paid hourly fees to represent indigent defendants. (Tr. 143-45)
Mrs. Johnson testified that she is a legal secretary for the alternate public defender in Knox County. In 2006, Geoffrey Campbell was an alternate public defender. Her husband, Steve Johnson, owns Johnson Investigations and employs investigator Mac Glass. (Tr. 148-49, 151)
In April 2006, Campbell was appointed to represent Chris Mixon. After Campbell got sick, the Respondent was appointed to represent Mixon. Then, on June 7, 2006, Campbell was reappointed. Mac Glass was the investigator working on the Mixon case. Mrs. Johnson said that "sometime" during the summer of 2006, she overheard parts of a conversation between Campbell and Glass. She said "I overheard Mr. Glass telling Mr. Campbell that he had done an interview of Mr. Bell, but there was no written report done that he could give to him. He didn't have it, because there was nothing to turn over to Mr. Campbell. Mr. Campbell said he wasn't concerned about it, he didn't need it."
Mrs. Johnson was asked if she had seen Respondent's Exhibit 2 before, and she said "I can't tell you for sure." However, she said the date stamp used on the document (July 13, 2006) was "my date stamp." (Tr. 152-53)
Finally, Mrs. Johnson said that the Respondent has a "very high" reputation for honesty and integrity in the legal community. (Tr. 154)
Judge Mangieri testified that he was the Knox County State's Attorney from 1996 until January 2007, when he was appointed Circuit Court Judge. (Tr. 162)
He has known the Respondent since about 1990, and has had cases against her. He is aware that she is active in the Lions Club, and that she is looked up to as a leader in the women's
community in the Galesburg area. He said that the Respondent has an excellent reputation in the community for honesty and integrity. (Tr. 162-65)
Judge Mangieri was the prosecutor in the Mixon and Bell cases. (Adm. Ex. 1 and 3) He said he first learned that Bell had made a transcribed statement to the Respondent (Adm. Ex. 8) when Mr. Campbell mentioned it on the second day of Mixon's trial. When Campbell said "you don't have anybody that's going to be able to put Mr. Mixon handing the gun to Mr. Bell," Mangieri responded "Anthony Bell has already testified to that." Campbell then mentioned the statement by Bell that "he never got the gun from Tony Bell." Bell's videotaped statement to the police, which implicated Mixon, was used at Mixon's trial. Bell's subsequent statement to the Respondent was not used. After Mixon was convicted, the judge granted a new trial because Campbell had not reviewed the transcript of Bell's subsequent statement. (Tr. 166, 169-74)
Judge Mangieri said that, at some point during Mixon's trial, he had a subpoena issued for the Respondent to produce the transcript of Bell's statement. She complied with the subpoena. (Tr. 166-67)
When asked if the existence of the transcript of Bell's statement to the Respondent had a negative impact on Mixon's case, Judge Mangieri said that it did. He explained that the trial judge was concerned about the content of the statement, which was not known by either counsel or the judge, and had not been discovered by Campbell. The trial judge then granted a new trial. Ultimately, Mixon entered a plea of guilty. (Tr. 168-70)
Judge Mangieri referred to Mixon and Bell as co-defendants. He explained that "they were never joined for trial, so in the generic sense, I would say that they were co-defendants but not proper." He further stated that they were charged with crimes based upon the same transaction. (Tr. 175-76)
Anthony Vaupel testified that he is an attorney with a law firm in Galesburg, and is the current president of the Knox County Bar Association. He has known the Respondent for about nine years. He said she is active in the Lions Club, has served as a judge for the Knox County teen court, and assists CASA, an organization that provides representation for abused and neglected children. Mr. Vaupel stated that the Respondent's reputation for honesty and integrity in the legal community is very high. (Tr. 179-83)
Mr. Vaupel was appointed to represent Christopher Mixon after Geoffrey Campbell was found to have provided ineffective assistance of counsel. (Adm. Ex. 1, p. 24) Vaupel said that the transcript of Anthony Bell's statement to the Respondent (Adm. Ex. 8) was a "big help" following the granting of a new trial for Mixon. Bell had given statements implicating Mixon, and Bell's statement to the Respondent "allowed me to impeach him." In other words, the "transcript effectively negated Tony Bell." Mixon ultimately entered a guilty plea. (Tr. 184-90)
Mr. Kanthak testified that he has been an attorney since 1981, and about 30 percent of his practice involves the representation of criminal defendants. His office is located across the hall from the Respondent's office. He and the Respondent have had a dating relationship for seven years. (Tr. 205-06, 213)
In the summer of 2006, the Respondent represented Christopher Mixon. At some point, she received a letter from Anthony Bell, who was charged in relation to the same murder as Mixon. Bell's letter said he wanted to talk with the Respondent and discuss certain events about the case involving Mixon. Kanthak and the Respondent then discussed the question of whether there was anything wrong with the Respondent talking to Bell. They looked at Hunter's Trial
Handbook for Illinois Lawyers (Resp. Ex. 10), and cases cited therein (Resp. Ex. 11). They also looked at pattern jury instruction for criminal cases, number 3.10, which states that an attorney or investigator may properly interview a witness. (Resp. Ex. 12) Kanthak said that he and the Respondent concluded that she could properly speak with Bell. (Tr. 206-10, 212-13)
Mr. Kanthak voiced the opinion that Mixon and Bell were not co-defendants or parties in the same case because they were charged in cases with separate numbers and tried separately. (Tr. 212, 214-15)
Finally, Mr. Kanthak said he did not discuss with the Respondent the matter of contacting Bell's attorney, Mr. Harrell, before she spoke with Bell because Bell had "initiated the contact." (Tr. 210, 215-18)
The Respondent testified that she is 43 years of age, and practices law in Galesburg. She is single and has a dating relationship with Christopher Kanthak. She was licensed to practice law in 1991. She was an assistant public defender in Knox County from August 1991 to December 1992. She then worked at two different law firms until October 2003. At that time she opened her own practice. She currently employs one full-time secretary and one part-time secretary. She described her practice as "high volume," with 25 to 30 percent involving work in criminal cases. From 1992 to about 2004, she had a contract to serve as a conflict attorney for the Knox County Public Defender. The contract ended when the Public Defender Office was restructured so that full-time alternate public defenders would handle cases in which there was a conflict of interest. (Tr. 219-25)
She testified about her community activities, including her involvement with the Lions Club, teen court, CASA, and West Central Legal Aid. She also said that she handles about 2 to
10 pro bono cases each year, and is a member of the Knox County Bar Association. (Tr. 225-28)
The Respondent discussed the factual background of the criminal cases involving Christopher Mixon and Anthony Bell. On April 24, 2006, Bell shot and killed Patrick Lynch. Bell was arrested for the shooting, and then Mixon was arrested. Mixon's family contacted the Respondent, and she arranged for Mixon to turn himself in to the authorities. Bell gave a videotaped statement to the police in which he said that Mixon had handed him the gun right before Bell shot Lynch. Bell and Mixon were charged by way of separate informations, and their cases had different numbers. Bell was charged with First Degree Murder in People v. Bell, Knox County No. 06-CF-241 (Adm. Ex. 3) and Mixon was charged with First Degree Murder by accountability in People v. Mixon, Knox County No. 06-CF-242 (Adm. Ex. 1 and 2). (Tr. 228-34)
Public Defender James Harrell was appointed to represent Bell on April 26, 2006 (Adm. Ex. 3, p. 1). Alternate Public Defender Geoffrey Campbell was appointed to represent Mixon on April 28, 2006 (Adm. Ex. 1, p. 1). However, Campbell got sick and went into the hospital. On May 8, 2006, the court appointed the Respondent to replace Campbell as Mixon's attorney (Adm. Ex. 1, p. 2). After being appointed, the Respondent contacted Stephen Johnson Investigations and hired investigator Mac Glass to work for her in the Mixon case. (Tr. 230-31, 237-38, 240-41)
The Respondent described Bell as a "very important witness against Mixon" and the "State's chief witness against Mr. Mixon." She explained that Bell had given a videotape statement to the police (Adm. Ex. 4; Resp. Ex. 8 and 9), and "Bell's statement to the police was the only statement that I believed at the time put the gun in Chris' hand prior to Bell shooting Lynch" and "that's linking this accountability that Chris Mixon was somehow involved with the
shooting." The Respondent noted that Bell's statement to the police contained some inconsistencies and he "changed histories six different times during this statement." (Tr. 233-37, 255)
After being appointed to represent Mixon, the Respondent received a telephone call from Bell's sister, who said Bell was not happy with his attorney and inquired whether the Respondent could represent Bell. The Respondent then received a letter, dated May 10, 2006, from Bell (Adm. Ex. 5). In his letter, Bell said he would testify that Mixon did not hand him the gun, and ask if the Respondent could "pick up my case." (Adm. Ex. 5) The Respondent said she asked Glass to go see Bell at the jail and find out if he was willing to talk with her. Later, Glass informed her that Bell was willing to talk with the Respondent. (Tr. 240-42)
The Respondent testified that she and Christopher Kanthak discussed the matter of her going to see Bell. She said she was aware of Disciplinary Rule 4.2 at that time, but did not think it was applicable to this situation. She noted that Rule 4.2 refers to a "party," and prohibits communication with another party without the consent of the party's attorney. She said "I did not see Anthony Bell as a party to these proceedings," but rather "as an occurrence witness." She also said she did not think that Bell was a co-defendant of Mixon. The Respondent further testified that she and Kanthak reviewed Hunter's Trial Handbook, cases cited in Hunter's, and IPI 3.10 (Resp. Ex. 10, 11 and 12). After she and Kanthak discussed the matter, she said "I reached the conclusion that it was not necessary that I contact [Bell's attorney] to seek his permission to talk to Mr. Bell after Mr. Bell had sent me the letter." (Tr. 230, 242-44, 299)
The Respondent acknowledged that, in deciding whether she could properly speak with Bell, she did not research "ethical opinions," such as by "looking on the ARDC website." She said she was not aware, at that time, of the disciplinary cases of In re Silverman (04 SH 120) or
In re Morelli (01 CH 120). She further stated she is now aware that, on December 12, 2006, the Review Board in the Silverman case ruled that the word "party" in Rule 4.2 means "individual." However, she does not believe she had appropriate notice of that meaning when she talked with Bell in May 2006. (Tr. 243, 280-81, 285, 298-99)
The Respondent made arrangements to visit Bell at the jail. She called the jail to make sure there would be a room available for her interview. On the afternoon of May 23, 2006, she went to the jail to "take a statement" from Bell. She met a court reporter outside the jail, as previously arranged. When they entered, the Respondent told the sheriff's staff she was there to see Bell. When she signed the visitor logbook, she wrote the name "Mixon" as the inmate she was visiting. (Adm. Ex. 7) She explained that she also intended to talk with Mixon, she was "in a hurry" trying to get the court reporter organized, and failed to write Bell's name in the logbook. She said the jail staff knew she was there to see Bell, and she "didn't intend to deceive anyone" by not putting Bell's name on the logbook. The Respondent acknowledged on cross-examination that, in her sworn statement to the ARDC, she had stated as the reason for writing Mixon's name in the logbook was because she was there on Mixon's case. She also noted that the jail staff does not know what names are written in the logbook, and that visitors frequently do not even sign it. (Tr. 244-51, 255-56, 282, 285-87)
The Respondent and the court reporter met investigator Glass inside the jail. Bell was brought to an interview room where he "voluntarily" gave a statement that was transcribed by the court reporter. There was no video or audio tape made of the statement. The Respondent said she did not inform Bell that he had a right to speak to his own attorney before given the statement because "I didn't believe I had an obligation to." In his transcribed statement (Adm. Ex. 8), Bell said "Chris Mixon had not given him a gun just prior to the shooting, as he had said
on the tape [of his prior statement to the police]." The Respondent said that the foregoing information was "important" to Mixon's case because "the State's theory was that Chris had immediately prior to the shooting given Tony the gun, and in fact, that's not what Tony Bell then said." After taking Bell's statement, the Respondent was "in a hurry" and decided not to talk with Mixon at that time. She did not contact Bell's attorney and tell him about her interview of Bell. (Tr. 251-55, 257, 289)
The Respondent said she told Mixon that she had taken a statement from Bell. Specifically, she said she told Mixon that Bell "had given me a statement and that it confirmed what Chris had been telling me all along, that Chris did not hand [Bell] the gun prior to the shooting, immediately prior to the shooting." When asked if she explained to Mixon "that there was a court reporter and a transcript made," she replied "yes. I told him that there had been a statement taken." (Tr. 256-57, 272)
When the Respondent was removed as counsel for Mixon on June 7, 2006 (Adm. Ex. 1, p. 4), the defendant's discovery to the State's Attorney was not yet due. Thus, at the time of her removal, she had not turned over to the State's Attorney the transcript of Bell's statement. However, she stated that "had I stayed in the case, the State was going to know, it was going to be part of my discovery, would have been part of the reports that were turned over." She acknowledged that the defense "only [has] to turn over to the State evidence that you are going to use." (Tr. 257, 259, 261, 287-88)
Mr. Campbell returned from medical leave and was reappointed to represent Mixon on June 7, 2006. (Adm. Ex. 1, p. 4) When asked why she was removed and Mr. Campbell was reappointed, the Respondent replied "politics and money." She explained there were "budgetary constraints," that is the county would have to pay her by the hour to represent Mixon, while
Campbell, as the alternate public defender, was already receiving a set salary to represent defendants such as Mixon. (Tr. 259-61, 296)
Upon being removed from Mixon's case, the Respondent did not turn over her file on Mixon to Campbell. She noted that she never received any notes or written report from Glass or Johnson Investigations, and was not aware at the time that Glass had made notes of his interview with Bell on May 17, 2006. (Adm. Ex. 6) She denied telling Stephen Johnson not to turn over statements or notes to Campbell, as Johnson had testified. (Tr. 245-46, 267, 288-89, 294, 301-02)
The Respondent said she received a letter, dated June 15, 2006, from Campbell (Adm. Ex. 12) requesting "information which the State had already provided to me," and "copies of photographs" and "any type of report" Glass had given to her. In response to Campbell's request, the Respondent asked him to subpoena the documents. She explained she was "trying to be thorough" and "wanted a subpoena from [Campbell] to make sure that I knew what he wanted." (Tr. 261-63)
The Respondent received a subpoena from Campbell on June 29, 2006. (Adm. Ex. 13) The Respondent said that she turned over to Campbell all the information requested in the subpoena, including information she had received from the State's Attorney and the photographs she received from Glass. She did not turn over a copy of the transcript of Bell's statement of May 23, 2006, because she "didn't think that [Bell's] sworn statement, that transcript, was responsive to that request." When asked why she did not voluntarily turn over the transcript of Bell's statement to Campbell, the Respondent replied:
I read Mr. Campbell's subpoena ducas tecum as being very specific and asking for very specific items, and … those are the items that then I turned over to Mr. Campbell. I wasn't second guessing why he didn't ask for it.
She further explained that she did not call Campbell and tell him she had the transcript because he did not ask her to "provide me with a copy of everything in your file." Thus, she read the subpoena "very literally" and "figured he had a reason [for what he requested]." After she provided documents in response to the subpoena, Campbell did not contact her for further documents. (Tr. 263-67)
On cross-examination, the Respondent said she did not tell Campbell that she had interviewed Bell because "Mixon knew [and] I assumed Mixon told Campbell." She was also asked why she did not simply turn over the transcript to Campbell in light of the fact that Bell's statement was "helpful" and "exculpatory" to Mixon. She replied "because Chris' lawyer didn't ask for it." She also explained that she believed then, and now, that it was Campbell's trial strategy not to know about Bell's statement. When asked what Campbell's trial strategy could have been, she said that Campbell, as he testified in this disciplinary matter, did not want the statement, did not think it admissible and did not "want to open that door at the time of trial. She further stated: ‘if for some reason Geoff Campbell thought that that statement given by Bell was somehow damaging to Chris Mixon's case, I didn't believe that it was, but if Geoff Campbell believed that somehow that statement was damaging to Chris Mixon's case, I believe that that's why he didn't ask for it, and if he didn't ask for it for a reason, then that's why I didn't turn it over." (Tr. 281-82, 289-92, 299-302)
On July 3, 2006, the Respondent signed her Petition for Attorney's Fees in the Mixon case (Adm. Ex. 11), which was filed on July 11, 2006 (Adm. Ex. 1, p. 5). In her Petition, a public document in the court file, she mentioned an interview and statement from an eyewitness on May 23, 2006 (Adm. Ex. 11, p. 3); a court reporter charge for a transcript of an eyewitness (Adm. Ex.
11, p. 4); and a bill from Johnson Investigations for an interview with Bell on May 17, 2006 (Adm. Ex. 11, p. 6). (Tr. 268-70)
Shortly before July 11, 2006, the Respondent received a letter from Mixon (Adm. Ex. 14). In his letter, Mixon asked her if she could represent him again, and stated "if you are unwilling to take my case … please allow me to have the information that you have." On July 11, 2006, the Respondent wrote back to Mixon (Adm. Ex. 15), and stated:
I am not holding on to any of the evidence in your case that Geoff Campbell can't get by just asking the State's Attorney's Office to make him a copy. Much of the information which I learned about your case was from talking to witnesses and going to the scene. Geoff Campbell can do the same thing.
She also told Mixon in her letter that "you have to work with Geoff." The Respondent said her statement to Mixon, that she was "not holding on to any of the evidence in your case," was not false. She explained that she was encouraging Mixon to talk to Campbell. At the time of her letter, she believed Campbell had not asked for the transcript of Bell's statement for a reason, that Mixon should talk to Campbell about what is going on in the case, and that Campbell could request the transcript if he wanted it. She said she had previously told Mixon about Bell's statement and she thought Campbell knew about it. (Tr. 270-72, 292-94, 297, 302-03)
The Respondent testified that she was not aware of the letters exchanged between Campbell and Mixon in July and August 2006 (Adm. Ex. 16-18), until the time of this disciplinary investigation. (Tr. 273-74)
Mixon's jury trial began on August 21, 2006. The Respondent heard that the transcript of Bell's statement became an issue at the trial. Eventually, the Respondent received a subpoena from the State's Attorney requesting the transcript of Bell's statement, and she turned over the transcript in compliance with the subpoena. On October 17, 2006, the judge at Mixon's trial continued the date for the sentencing hearing, and set a date for arguments on Mixon's motion
for new trial and the court's own sua sponte motion. The court's own motion for new trial was "based upon ineffective assistance of trial counsel concerning the deposition of co-defendant Anthony Bell." (Resp. Ex. 6) On October 20, 2006, the Respondent filed a "Motion for Substitution of Counsel" (Adm. Ex. 21), seeking to substitute back into the case as Mixon's attorney. In her Motion she alleged that Campbell was ineffective and, in support thereof, said that "Campbell failed to introduce the testimony of Anthony Bell taken under oath on May 23, 2006." (Adm. Ex. 21, p. 2) On November 2, 2006, the judge granted Mixon a new trial "on the basis of ineffective assistance of counsel." (Adm. Ex. 20) Thereafter, the Respondent had no further involvement in the Mixon case. (Tr. 274-78)
Finally, the Respondent emphasized that at the time the events occurred she did not think she did anything wrong by taking the statement of Bell, and she did not intentionally withhold information from Mr. Campbell. She also said that, in hindsight, it was wrong for her to talk to Bell without telling his attorney. Further, she said she was "sorry" if she brought the legal profession or courts into disrepute. (Tr. 267-68, 282-83, 298-99)
Judy Guenseth testified that she is the executive director of CASA for Knox County. CASA is a non-profit organization that advocates for abused and neglected children. (Tr. 191-92) Ms. Guenseth has known the Respondent for about two and one half years, during which the Respondent has served as an attorney assigned to CASA "many times." Ms. Guenseth stated that the Respondent has an excellent reputation in the community for honesty and integrity. (Tr. 193-94)
Bobbi Altiere testified that she was a legal secretary for the Respondent from June 2000 to July 2007. She currently works for the United States Department of Agriculture. (Tr. 195-96)
Ms. Altiere said that the Respondent is involved with the Noon Lions Club, has been a volunteer for teen court, and has been a volunteer in other matters. The Respondent has done pro bono work in her practice a "couple of times a year." Ms. Altiere stated that Respondent has a reputation for being honest and upright. (Tr. 197-98)
Finally, Ms. Altiere said she was aware of the Respondent's file pertaining to Christopher Mixon, and that there were no notes from Mac Glass in the file. (Tr. 199)
Mark Woodring testified that he has worked for the Court Services Department in Knox County since 1979, and he is currently the supervisor. He supervises the adult and juvenile probation offices. (Tr. 200-01)
He has been acquainted with the Respondent since she was an assistant public defender. He stated that she has a reputation for having the highest integrity. (Tr. 202-03)
Dwayne T. Morrison
Judge Morrison testified by evidence deposition (Resp. Ex. 15) that he practiced law in Galesburg since 1973 and became a judge in March 2007. He has known the Respondent for about 10 years. She is very active in the Lions Club and formerly served as the Club's president. She also received an award as Business Woman of the Year several years ago. (Resp. Ex. 15, p. 5-8)
Judge Morrison said that the Respondent's reputation in the legal community for honesty and integrity is excellent. (Resp. Ex. 15, p. 8)
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. In re Timpone, 208 Ill. 2d 371, 380, 804 N.E.2d 560, 566 (2004). This standard requires a high level of certainty, greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 276 (1995).
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 the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126, 1133 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 N.E.2d 983, 987 (1991). The Hearing Panel is in a position to judge credibility and weigh conflicting testimony because it is able to "see the witnesses [and] observe their demeanor." In re Samuels, 126 Ill. 2d 509, 526, 535 N.E.2d 808, 814 (1989); In re Spak, 188 Ill. 2d 53, 66, 719 N.E.2d 747, 754 (1999). In assessing the testimony the Hearing Panel is not required to be "naïve or impractical" or to believe testimony that is "beyond human experience," "an unreasonable story," or "an inherent improbability." In re Discipio, 163 Ill. 2d 515, 523-24, 645 N.E.2d 906, 910 (1994); In re Holz, 125 Ill. 2d 546, 555, 533 N.E.2d 818, 821 (1989)
Additionally, 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 Carlson, 98 CH 880, M.R. 17398 (June 20, 2001) (Hearing Board Report at 11); In re Cagle, 05
SH 23, M.R. 21355 (March 19, 2007) (Hearing Board Report at 35); In re Petit, 06 SH 30, M.R. 21735 (September 18, 2007) (Hearing Board Report at 15)
With the above principles in mind, and after considering all of the evidence, we make the findings set out below.
The factual background of this matter is largely undisputed. What is in dispute is the Respondent's knowledge, intent and motives in regard to her conduct. (See Answer to Second Amended Complaint)
The undisputed facts are that in April 2006 Anthony Bell and Christopher Mixon were charged by separate informations in Knox County with First Degree Murder arising out of the same incident. Bell was charged in Case Number 06 CF 241, based upon the theory that Bell was the person who actually shot and killed Thomas Lynch. (Adm. Ex. 3; Resp. Ex. 9, p. 15-30; Resp. Ex. 14, p. 1; Tr. 231) Mixon was charged in Case Number 06 CF 242 on the basis of accountability. (Adm. Ex. 2; Resp. Ex. 14, p.1) The State's Attorney's theory for Mixon's accountability was that Mixon handed the gun to Bell immediately before Bell shot and killed Lynch. (Tr. 231-33; Resp. Ex. 14, p.1) The evidence to support the allegation that Mixon had handed the gun to Bell came from Bell's post-arrest statement to the police. (Tr. 130, 233-34, 236-37) Bell's statement was videotaped (Resp. Ex. 8) and transcribed (Resp. Ex. 9). In his statement, Bell claimed that Mixon handed him the gun immediately before Bell fatally shot Lynch, and that he (Bell) would not have taken any action against Lynch "[i]f Chris wouldn't have handed [Bell] the gun." (Resp. Ex. 9, p. 20, 27-28)
The public defender, James Harrell, was appointed to represent Bell, and the alternate, or conflict, public defender, Geoffrey Campbell, was appointed to represent Mixon. Campbell became ill, and the Respondent was appointed to replace Campbell as Mixon's attorney on May
8, 2006. (Tr. 238) Anthony Bell sent a letter to the Respondent on May 10, 2006, stating that he was not satisfied with Mr. Harrell's representation of him, and asked if the Respondent "would pick up my case." Bell also stated in his letter that he would testify that Mixon did not hand him the gun. (Adm. Ex. 5) After receiving Bell's letter, the Respondent asked her investigator, Mac Glass, to visit Bell at the jail and find out if Bell was willing to speak with the Respondent. (Tr. 242) Glass met with Bell, and reported to the Respondent that Bell would speak with her. (Tr. 242) On May 23, 2006, the Respondent went to the county jail, accompanied by a court reporter and Mr. Glass, and spoke with Bell. The Respondent did not contact Mr. Harrell about her interviewing Bell (Tr. 256, 298-99). Bell gave a statement to the Respondent at the jail and a transcript of the statement was prepared by the court reporter (Adm. Ex. 8). In the transcribed statement, Bell claimed that Mixon had not handed the gun to Bell. (Adm. Ex. 8, p. 6-7, 11, 16) The Respondent did not provide Mr. Harrell with the transcript of Bell's statement. (Tr. 257)
Based upon the above facts, the Administrator contended that the Respondent violated Rule 4.2, which states the following:
During the course of representing a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise be authorized by law.
The Respondent testified that she was aware of Rule 4.2 at the time, but did not believe it was applicable to her talking to Anthony Bell. (Tr. 242-43) She said she did not believe that Bell was a "party" or "co-defendant" in regard to her client, Christopher Mixon. (Tr. 243, 298-99) The Respondent also asserted that prior to the date of the Review Board Report in In re Silverman (04 SH 120), the meaning of the term "party" in Rule 4.2 was not clear. The Review Board in Silverman ruled, for the first time in Illinois, that "the term ‘party' as used in the Rule [4.2] is synonymous with the word ‘person'." (Silverman, 04 SH 120, Review Board Report at
8, 12 (leave to file exceptions to the Review Board Report was denied in M.R. 21413, March 19, 2007). Because the Review Board Report in Silverman was not filed until December 12, 2006, which was after the Respondent's alleged misconduct, she said she did not receive adequate notice that her conduct in talking to Bell without informing Bell's attorney was a violation of Rule 4.2. (Tr. 280-81, 321-22)
In closing argument, the Respondent asserted that if she had read the Hearing Board Report in Silverman, which was filed prior to the Respondent's conduct in this matter, "she would have said, yeah, great, there we go, I'm doing what's right. This Hearing Panel agrees with me." (Tr. 322)
The Respondent and attorney Christopher Kanthak, with whom the Respondent has had a dating relationship for several years (Tr. 205-06, 213, 219), testified that they discussed the issue of whether the Respondent could properly talk with Bell, reviewed court decisions cited in Hunter's Trial Handbook, and looked at IPI criminal 3.10. After such review and discussion, they said they concluded that the Respondent could properly talk with Bell, without contacting Bell's attorney. (Tr. 207-10, 243-44; Resp. Ex. 10, 11, 12)
The Hearing Panel finds the Respondent's contention that she had inadequate notice of the meaning of Rule 4.2 to be unpersuasive, and reject such a defense in this case. We first point out that, while the Respondent claimed to have considered certain matters (Resp. Ex. 10, 11, 12) in determining whether it was proper for her to talk with Bell, she admitted that she did not research "ethical opinions" in this matter, such as by "looking on the ARDC website." (Tr. 285) If the Respondent, an experienced attorney, had engaged in any meaningful research, she would have found ample authority to show that her conduct violated Rule 4.2.
Contrary to the contention in the Respondent's closing argument (Tr. 322), the Hearing Board Report in the Silverman matter did not decide or indicate that the Respondent could interview Bell without violating Rule 4.2. The Hearing Board stated "[W]e note that Rule 4.2 has been applied to situations in which two or more persons are defendants in companion criminal cases that arise from the ‘same set of circumstances' and involve ‘essentially the same charges'." Five disciplinary cases were cited. The Hearing Board then stated:
[C]onsistent with the above cases, Rule 4.2 was clearly applicable at the time that both Johnson's criminal case (No. 02 CF 523) and Meyers' criminal case (No. 02 CF 535) were pending. Both cases arose out of the same incident, conduct, and circumstances. If an attorney representing Meyers at that time had communicated with Johnson, while knowing she was represented by counsel and without that counsel's permission, Rule 4.2 would have been violated.
Silverman, 04 SH 120, Hearing Board Report at 26.
Thus, about four months before the Respondent spoke with Bell, there was a very clear statement by the Hearing Board that her conduct would violate Rule 4.2.
The Hearing Board's reason for finding that Silverman did not violate Rule 4.2 was based upon facts that are not present in the case before us. Silverman represented Meyers in a criminal case (No. 02 CF 535). Johnson was charged in a separate case (No. 02 CF 523) and was represented by separate counsel. The charges against both Meyers and Johnson arose from the same incident. The reason for the Hearing Board finding that a violation of Rule 4.2 was not proved was because of the following facts. When Silverman "first communicated with Johnson, her criminal proceeding had been completed, she was no longer a party in any criminal proceeding, and she was not represented by counsel in such [criminal] matter." Johnson had previously entered a plea of guilty and was sentenced to probation in Case No. 00 CF 523. Thus, Johnson's criminal case, which arose from the same incident as Silverman's client, was concluded before Silverman communicated with Johnson. Further, when Silverman
communicated with Johnson, Johnson was not being represented in any criminal matter, "but only in regard to Johnson's possible testimony as a witness at Meyers' criminal trial." (Silverman, 04 SH 120, Hearing Board Report at 26) The Review Board, in December 2006, ruled that Rule 4.2 was violated by Silverman. (Silverman, 04 SH 120, Review Board Report at 7-10 (Leave to file exceptions to Review Board Report denied in M.R. 21413, March 19, 2007)). Thus, the Hearing Board's finding of no violation of Rule 4.2 in Silverman was based upon facts critically different than those in this case.
In addition to the above, other previous disciplinary decisions provided notice that the Respondent's communication with Bell, in the absence of consent by his attorney, was a violation of Rule 4.2.
In In re Morelli, 01 CH 120, the respondent represented Lechunga on a criminal charge, and Lechunga's "co-defendant" Parras was represented by separate counsel. Parras' initial counsel allowed the respondent to talk with Parras. However, Parras second counsel, a public defender, denied the respondent's request to talk with Parras. Nevertheless, after receiving a note from Parras asking to see him, the respondent visited Parras and obtained a transcribed statement. The respondent did provide the transcript to Parras' attorney. On a second occasion, the respondent received another note from Parras, requesting to see the respondent, and the respondent then talked with Parras without any notification to Parras' attorney. (Hearing Board Report at 10-11) In finding a violation of Rule 4.2, the Hearing Board stated:
It is undisputed that on two occasions the Respondent communicated with Javier Parras, knowing that he was represented by counsel and knowing that his counsel expressly directed the Respondent not to communicate with her client. Each contact may have been initiated by Parras directly to the Respondent. However, the rule can only be waived by counsel, not the client …. The Respondent's motive as a zealous advocate for his client and the fact that prior counsel had permitted the Respondent to communicate with Parras are not defenses nor are
they mitigation here. We find that the Respondent's conduct constituted a violation of Rule 4.2.
(Hearing Board Report at 21-22)
The respondent in Morelli did not challenge the finding that Rule 4.2 was violated, and the finding was affirmed by the Review Board. See Morrelli, 01 CH 120, Review Board Report at 2, 6-8, 14-15 (Review Board Report approved in M.R. 20136, May 20, 2005).
We note that the refusal of a co-defendant's counsel to allow a respondent to speak with the co-defendant is not a necessary requirement for a violation of Rule 4.2. A violation occurs when a respondent does not "obtain the prior consent" of the co-defendant's counsel. (Rule 4.2) However, communicating with a co-defendant after his or her attorney has refused consent to do so, is a "blatant disregard of his co-counsel's wishes" and more aggravating. Morelli, 01 CH 120, Review Board Report at 15.
We also note that we reject the Respondent's testimony that she did not think Mixon and Bell were "co-defendants." (Tr. 23, 243, 324) The Respondent was the only one involved in the Mixon/Bell matter who indicated that Mixon and Bell were not co-defendants. Public Defender Harrell believed Mixon and Bell were co-defendants (Tr. 29-32). Alternate Public Defender Campbell believed they were co-defendants (Tr. 130-31). State's Attorney and now Circuit Court Judge Mangieri referred to Mixon and Bell as co-defendants (Adm. Ex. 19, p. 4; Adm. Ex. 22, p.2; Tr. 175-76). Finally, the judge presiding at Mixon's trial described Mixon and Bell as co-defendants. (Resp. Ex. 6; Adm. Ex. 20) Thus, the decision in Morelli, as well as the decisions set out below, provided notice that the Respondent's conduct violated Rule 4.2.
In In re Hildebrand, 04 SH 52, a man named Justin Counts was charged with criminal offenses in Case No. 04 CF 832 in Madison County. A woman named Anne McFarlane was also charged with criminal offenses, arising from the same incident, in Case No. 04 CF 856. The
respondent represented Counts, and a separate attorney, Hale, represented McFarlane. The respondent spoke with McFarlane at the jail and then in a hallway near a courtroom, without informing Hale or obtaining Hale's consent. (Hearing Board Report at 1-4) The Hearing Board found that the respondent violated Rule 4.2:
We find that the Respondent violated ethical Rule 4.2 by communicating with Anne McFarlane at the time he knew she was represented by another attorney, in a matter which involved his own client (Counts), and without talking with McFarlane's attorney or obtaining permission from the attorney to talk with McFarlane. The evidence showed that McFarlane was arrested at the same time and location as Counts; that McFarlane was charged with the offense of aiding a fugitive, in which Counts was specifically named as a fugitive; that McFarlane was a prospective witness against Counts; and that the Assistant State's Attorneys viewed McFarlane and Counts as ‘co-defendants.' [Further], the Respondent knew Hale had been appointed; and that the Respondent met and talked with McFarlane about her criminal case on April 11 and 12, 2004, without contact with Hale.
(Hearing Board Report at 22)
The Respondent challenged the above on review, and the Review Board affirmed the finding of misconduct. (Hildebrand, 04 SH 52, Review Board Report at 12) The Supreme Court upheld the findings of misconduct, and imposed a suspension of one year and until further order of the Court as recommended by the Hearing Board. In re Hildebrand, M.R. 20754 (March 20, 2006).
In In re Baril, 00 SH 14, the police arrested Linda Laird and Kenneth Scronce after finding a controlled substance in their motel room. Both were charged with unlawful possession of a controlled substance and other offenses. Scronce was charged in Case. No. 99 CF 48, and Laird was charged in Case. No. 99 CF 49. Laird made a statement to the police suggesting that Scronce had a "greater level of culpability." The public defender was initially appointed to represent Scronce, and the "conflicts public defender," Mr. Maclin, was appointed to represent Laird. Scronce's brother then retained the respondent to represent both Scronce and Laird.
However, the court disqualified the respondent from representing Laird, and Mr. Maclin continued to represent Laird. Thereafter, the respondent had two telephone conversations with Laird without the knowledge or permission of her attorney. (Hearing Board Report at 4-5, 35-36; Review Board Report at 2, 4-7) The Hearing Board found a violation of 4.2 and the Review Board affirmed. It is noted that both the Hearing Board (at 33) and the Review Board (at 2) referred to Laird and Scronce as co-defendants. The Supreme Court approved the findings of misconduct in In re Baril, M.R. 18162 (September 19, 2002).
In In re Galic, 02 CH 104, the Hearing Board, in a report filed on August 18, 2004, found that the respondent violated Rule 4.2. The respondent represented a man named Suvad, and another attorney, Mr. Wolf, represented a man named Harris. "Suvad and Harris were defendants in companion criminal cases that involved the same charges, the same victim, and arose from the same set of circumstances." Without asking Wolf for permission, the respondent spoke with and accepted a written statement from Harris. The Hearing Board found that the respondent violated Rule 4.2. The Hearing Board rejected the respondent's contention that he did not violate Rule 4.2 because Harris had "initiated all of the communication." The Hearing Board said that "Respondent's understanding of his duty under Rule 4.2 is incorrect" and that it is "the attorney's duty, not the client's, to insure that Rule 4.2 is complied with." Thus, the "respondent had a duty to tell Harris that he could not speak to him, listen to him, or take his statement because Harris was represented by Mr. Wolf and the respondent was representing Suvad in a companion criminal case. The fact that Harris was willing to speak to him or volunteered the information that he gave Respondent is irrelevant." (Galic, 02 CH 104, Hearing Board Report at 16-17) There was no appeal from the Hearing Board's issuance of a reprimand in Galic.
The decisions in the above disciplinary cases, including the Hearing Board Report in Silverman, all of which were issued prior to the Respondent's conduct in this case, provided clear guidance and notice to the Respondent, or any other attorney acting in similar circumstances, that the conduct in this case was a violation of Rule 4.2.
In addition to the above, the Hearing Panel concludes that any experienced attorney in the circumstances of this case should have recognized the impropriety of speaking with Anthony Bell without the knowledge or consent of his attorney. The Respondent was experienced in criminal cases, having served as an assistant public defender and then as a "conflict" public defender on a contractual basis in Knox County. (Tr. 223, 225) She certainly knew that the appointment of Public Defender Harrell to represent Bell and Alternate Public Defender Campbell to represent Mixon was necessary to prevent a single attorney from representing defendants with conflicting interests. When the Respondent was appointed to replace Campbell as Mixon's attorney, she knew she was appointed because of the same conflict of interest. The Respondent had an attorney-client relationship with Mixon and had the duty to protect his interests. Likewise, Mr. Harrell had the duty to protect Bell's interest in their attorney-client relationship. When the Respondent received Bell's letter, dated May 10, 2006 (Adm. Ex. 5), asking if she "would pick up my case" (and stating he would testify that Mixon "did not hand me no gun"), she knew she could not represent Bell because of her representation of someone with a conflicting interest. However, the Respondent determined that she would meet and talk with Bell, in the absence of any communication to Bell's attorney. She then took a court reporter with her to the jail, and obtained a transcribed statement from Bell that was favorable to her client. By her actions, the Respondent deliberately intruded upon the attorney-client relationship of Harrell
and Bell, and put Bell at great potential risk by taking a transcribed, sworn statement from him, for the purpose of benefiting her client who had interests adverse to Bell.
An attorney, particularly one with the experience of the Respondent, had to have understood the basic ethical principle that an attorney does not interview another attorney's client without consent of the other attorney when the other attorney's client may have an adverse interest in the matter.
Furthermore, as mentioned by the Administrator (Tr. 306), ignorance of the rules of professional conduct is not a defense, and "[i]t is a paramount obligation of each member of the bar to study the Code of Professional Responsibility and abide by its terms and principles." In re Gerard, 132 Ill.2d 507, 538, 548 N.E.2d 1051, 1063 (1989); In re Cheronis, 114 Ill.2d 527, 535, 502 N.E.2d 722, 726 (1986). In this case, the cases and principles discussed above would have provided clear guidance to the Respondent if she had pursued any reasonable and meaningful research regarding ethical rules.
Finally, in regard to Rule 4.2, the Respondent and attorney Christopher Kanthak testified that they discussed the issue of the Respondent meeting with Bell, considered certain materials, and concluded that the Respondent could properly do so without informing Bell's attorney. (Tr. 206-13, 242-44, 299) The materials they said they considered were a section entitled "right to interview witness" in Hunter's Trial Handbook for criminal cases (Resp. Ex. 10); three Appellate Court opinions cited in Hunters' (People v. Smith, 90 Ill.App. 2d 310, 234 N.E.2d 31 (1967); People v. Clark, 9 Ill.App. 3d 998, 293 N.E.2d 666 (1973); People v. Sassu, 151 Ill.App. 2d 199, 502 N.E.2d 1047 (1986)) (Resp. Ex. 11); and Illinois Pattern Jury Instruction 3.10 for criminal cases (Resp. Ex. 12). The foregoing materials do not pertain to ethical Rule 4.2, and do not address the subject of communicating with a criminal defendant, concerning the criminal matter,
while the defendant is represented by counsel to protect his or her interests in that criminal matter.
The materials presented by the Respondent (Resp. Ex. 10, 11, 12) pertained to and/or addressed particular issues that arose previously in criminal cases. There was a practice by some prosecutors and police officers of advising potential witnesses not to talk with defense counsel. (See People v. Sassu, 151 Ill.App. 3d at 203, 502 N.E.2d at 1050 (Resp. Ex. 11)) In response to that practice, the Supreme Court adopted Rule 415(a) which prohibits a prosecutor, defense counsel, and "other prosecution or defense personnel" from advising potential witnesses not to talk with opposing counsel. (See People v. Peters, 55 Ill. 2d 443, 450-51, 303 N.E.2d 398, 403-04 (1973)) In response to the practice by some prosecutors of suggesting, during examination of witnesses or in closing argument, that defense counsel acted improperly by talking with a prosecution witness without the permission of the prosecutor (See People v. Smith, 90 Ill.App. 2d at 313, 321, 234 N.E.2d at 33, 37 (Resp. Ex. 11)), Pattern Jury Instruction 3.10 (Resp. Ex. 12) was approved for criminal cases. Neither the court decisions set out in Hunter's trial Handbook (Resp. Ex. 10, 11) nor IPI Criminal 3.10 was directed at or addressed communication with a criminal defendant who is represented by counsel. It is perplexing why the Respondent would rely on the above materials without researching "ethical opinions" (Tr. 285) to determine if her communication with Bell, in the absence of the consent of Bell's attorney, would violate an ethical rule.
Thus, we conclude that any attorney should have know, in the circumstances which the Respondent acted, that it was a violation of Rule 4.2 for the Respondent to communicate with Bell as she did.
The Hearing Panel also finds that the evidence and the Respondent's judicial admissions clearly and convincingly established that the Respondent violated Rule 1.16(d) when, upon her discharge as Christopher Mixon's attorney, she deliberately failed to turn over the transcript of Anthony Bell's sworn statement of May 23, 2006, to Mixon or to Mr. Campbell, who succeeded her in representing Mixon. In the circumstances of Mixon's case, Bell's transcribed statement was clearly exculpatory to Mixon, and could have been used at Mixon's trial to impeach the credibility of Anthony Bell who implicated Mixon in the crime charged. (Tr. 130, 174-75) The transcript of Bell's statement was of critical importance to Mixon's defense, and we find no justification for the Respondent's failure to turn over the transcript of Bell's statement.
We repeat some of the facts to illustrate the importance of Bell's transcribed statement. Mixon and Bell were both charged with First Degree Murder arising out of the same shooting. The charge against Mixon was based upon accountability, that is, based upon Mixon's alleged conduct of handing the gun to Bell immediately before Bell used the gun to shoot and kill Patrick Lynch. (Tr. 232-33; Adm. Ex. 2, Resp. Ex. 14) The Respondent knew that Bell was a "very important" witness for the State against Mixon because Bell was the only potential witness who would claim that Mixon had handed the murder weapon to Bell. (Tr. 130, 233-36, 171; Resp. Ex. 8, 9, 14) As stated by the Respondent, "Bell's statement to the police was the only statement that I believed at the time put the gun in Chris' hand prior to Bell shooting Lynch." (Tr. 234) On May 23, 2006, the Respondent went to the county jail accompanied by a court reporter and obtained a sworn statement from Bell, in which Bell claimed that Mixon did not hand him (Bell) the gun before the fatal shooting. The Respondent received the transcript of Bell's statement. (Adm. Ex. 8)
Because Bell was the only potential state witness who would link Mixon to the murder weapon, based upon his earlier statement to the police (Resp. Ex. 9), the transcript of Bell's contrary subsequent statement was crucial impeachment evidence. (Tr. 255, 187-88; Adm. Ex. 19, p. 6-7) Furthermore, the Respondent was fully aware of the importance of Bell's statement to her on May 23, 2006. At the time, the Respondent was removed from Mixon's case, on June 7, 206, the time period for the defense to turn over documents to the State had not yet expired. Thus, the Respondent had not turned over the transcript of Bell's statement to the State's Attorney. (Tr. 259) However, she testified that she would have turned over the transcript if she had remained in the case. (Tr. 257) She acknowledged that she was required to turn over to the State only "evidence that you are going to use." (Tr. 287-88) Thus, the Respondent recognized the importance of Bell's statement and intended to use it at Mixon's trial.
We think it clear that, based upon the Respondent's attorney-client relationship with Mixon and her fiduciary duty to him, the Respondent was required to deliver to Mixon or to her successor attorney, the transcript of Bell's statement of May 23, 2006. It was a critical document needed to avoid foreseeable prejudice to Mixon, and the Respondent's knowing failure to turn over the transcript was contrary to the interests of her client.
While the Respondent offered explanations for her conduct, we find no reasonable justification or excuse. The Respondent said she had informed Mixon that she had taken a sworn statement from Bell under oath and the substance of the statement. (Answer to Second Amended Complaint, para. 24; Tr. 256-57) We find it insufficient to merely provide a client with a summary of sworn statements when, in fact, the attorney had the transcript of the statement and could have provided the transcript to the client or the successor attorney. Also, the Respondent did not make it clear to Mixon that she had a transcript of Bell's statement. In fact, when Mixon
specifically asked in a letter for the Respondent to provide him with "the information you have" (Adm. Ex. 14), she replied, on July 11, 2006, that "I am not holding onto any evidence in your case that Geoff Campbell can't get by just asking the State's Attorney's Office to make him a copy." (Adm. Ex. 15) Thus, the Respondent did not tell Mixon she had a transcript of Bell's statement, but rather she misled Mixon by indicating to him that all relevant information had been turned over to the State's Attorney.
The Respondent testified that she did not intentionally withhold the transcript of Bell's statement or other information from Mr. Campbell. (Tr. 267, 299-300, 302) However, Stephen Johnson, owner of Johnson Investigations, testified that the Respondent gave him instructions "not to turn over any of our notes," including notes of "witness interviews," to Mr. Campbell because they were "work product." (Tr. 81-82, 86-87) The Respondent denied given the foregoing instructions. (Tr. 267, 301-02) We found Mr. Johnson to be a credible and believable witness. He is a friend of the Respondent (Tr. 78), with no apparent reason to fabricate testimony, and he appeared to be certain about what had occurred. We also note that defense investigator notes of witness statements are not work product under the Illinois discovery rules. See People v. Sutherland, 223 Ill. 2d 187, 276-78, 860 N.E.2d 178, 235-36 (2006); People v. Boclair, 119 Ill. 2d 368, 375-76, 519 N.E.2d 437, 440 (1987).
The Respondent also explained that she did not tell Mr. Campbell, who replaced her as Mixon's attorney, about Bell's statement of May 23, 2006, or provide him with the transcript thereof because Campbell did not specifically request her to do so. (Tr. 265-66, 289) She further explained that she assumed Mixon had told Campbell about Bell's sworn statement and that Campbell may have had some "strategy" for not requesting the transcript. (Tr. 289-90, 292, 300-01) We find it inconceivable that an attorney would simply assume that a client had
adequately informed successor counsel of critical evidence, instead of personally discussing the evidence with the successor counsel or simply turning over the document itself. Even if we were to read the written requests from Attorney Campbell for information (Adm. Ex. 12 and 13; Tr. 135-36) in a very narrow sense, as the Respondent did, so as not to have specifically requested the transcript of Bell's statement, we cannot even imagine what possible trial strategy any competent attorney could have had for not wanting to obtain the transcript of Bell's statement. The Respondent, an attorney experienced in the practice of criminal law, was unable to articulate any reasonable strategy in this regard. (Tr. 290-92, 300-01) While she was representing Mixon, the Respondent was fully aware of the importance of Bell's statement of May 23, 2006. For example, she knew Bell's statement was "exculpatory" to Mixon (Tr. 289); she knew it would impeach the only witness who could establish Mixon's accountability (Tr. 234); and she intended to use it at Mixon's trial (Tr. 257, 287-88). Furthermore, after Mixon was found guilty, the Respondent filed a "Motion for Substitution of Counsel," asserting that Campbell provided ineffective assistance of counsel because he "failed to introduce the testimony of Anthony Bell taken under oath on May 23, 2006." (Adm. Ex. 21, par. 12) Also, Mr. Vaupel, who represented Mixon after Campbell, recognized and explained the importance of Bell's statement. (Tr. 187-90)
We note that we found Campbell's explanation for his alleged belief that the transcript of Bell's statement of May 23, 2006, was not important at Mixon's trial to be unsound and unpersuasive. Campbell did not attempt to obtain the transcript of Bell's statement, even after Campbell became aware of its existence on about August 1, 2006. (Tr. 99-100, 109-11; 139-40; Adm. Ex. 19, p. 7-8) At Mixon's trial, the State's Attorney was allowed to introduce Bell's April 2006 videotaped statement to the police (Resp. Ex. 8 and 9) into evidence. Although
Campbell acknowledged that Bell was "the only one that would say anything to that effect [Mixon having handed the gun to Bell]" (Tr. 130), Campbell had not read Bell's transcribed statement and did not introduce it to impeach Bell's credibility with his inconsistent statement. (Tr. 116-17, 143-43, 174-75) After the jury found Mixon guilty, the trial judge ordered a new trial because Campbell provided "ineffective assistance of counsel." The judge stated that Campbell's decision not to require production of the transcript of Bell's statement "did not rise to the level of trial strategy." (Adm. Ex. 20) Campbell explained during his testimony in this case that the transcript of Bell's statement was not important and that he was not going to use it at Mixon's trial because he did not want to "open the door" for the State's Attorney to use Bell's videotaped statement to the police. (Tr. 111, 128, 142-43) Campbell's explanation was illogical and unsound because Bell's videotaped statement was introduced into evidence during the State's presentation of evidence, which was before Campbell would have introduced Bell's subsequent statement during cross-examination of Bell or during the defense's case. However, because Campbell did not obtain the transcript of Bell's statement of May 23, 2006, and produce it to the State's Attorney in discovery, the transcript was not used to impeach Bell's credibility at Mixon's trial. Although Campbell did not specifically request the Respondent to turn over the transcript of Bell's statement, the Respondent knew the transcript was important, exculpatory evidence and she had the duty to turn it over to assure that her client was not prejudiced.
We next consider the charge that the Respondent engaged in dishonesty and deceit for placing the name of her client Mixon on the Knox County Jail Visitor Record on May 23, 2006 (Adm. Ex. 7), when in fact she only visited Anthony Bell at the jail on that date. (Second Amended Complaint, par. 15-18, 39(c)). Although the placing of only Mixon's name in the Visitor Record is suspicious, particularly in light of the Respondent's differing explanations for
doing so (Tr. 250, 285-87), we do not believe this charge was proved. The unrebutted evidence showed that the Visitor Record is not monitored by jail personnel and, in fact, visitors do not always sign the Visitor Record. (Tr. 71, 91-92, 251) Also, jail personnel do not require accuracy in signing the Visitor Record (Tr. 48, 91), as illustrated by the fact that jail personnel brought Bell to a room for a visit with the Respondent even though she had not put Bell's name on the Visitor Record. (Tr. 73, 250-51) Additionally, the Jail Administrator testified and indicated that the information in the Visitor Record was not used for any jail purpose. (Tr. 92-94) In the circumstances shown by the evidence, we do not believe there is clear and convincing evidence that the Respondent intended to deceive or defraud.
The Respondent was also charged with dishonesty and deceit for writing a letter to Christopher Mixon on July 11, 2006, that contained false information. (Second Amended Complaint, para. 29-31, 39(c)). Shortly before July 11, 2006, Mixon sent the Respondent a letter in which Mixon stated: "please release the information that you have" and "please allow me [to] have the information you have." (Adm. Ex. 14, The Respondent sent a written reply to Mixon on July 11, 2006, and stated the following:
Additionally, I am not holding on to any of the evidence in your case that Geoff Campbell can't get by just asking the State's Attorney's Office to make him a copy.
(Adm. Ex. 15)
Deception and fraud include "any conduct, statement, or omission that is calculated to deceive," including the "suppression of truth and the suggestion of what is false." In re Gerard, 132 Ill.2d 516, 529, 552 N.E. 703, 709 (1989); In re Yamaguchi, 118 Ill.2d 417, 426, 515 N.E.2d 1235, 1238 (1987). The Supreme Court has made it clear that an attorney engages in dishonesty and deceit by knowingly making false or misleading statements to a client. See In re Ring, 141
Ill.2d 128, 143, 565 N.E.2d 983, 988-89 (1990); In re Levin, 101 Ill.2d 535, 539-40, 463 N.E.2d 715, 717 (1984).
At the time the Respondent sent the above letter to Mixon, she knew that she possessed the transcript of Bell's statement of May 23, 2006, which was exculpatory to Mixon, and also knew that she had not disclosed or delivered the transcript to the State's Attorney, Mixon, or Campbell. Thus, she deliberately misadvised Mixon that his attorney could get all matters pertaining to his defense from the State's Attorney's Office. She also told Mixon she was "not holding on to any of the evidence in your case" when she knew she was holding the transcript that tended to exonerate Mixon. Thus, we find that it was clearly and convincingly established that the Respondent engaged in dishonesty, fraud, deceit or misrepresentation in regard to her letter to Mixon on July 11, 2006. (Adm. Ex. 15)
The Respondent contended that her statements to Mixon in the above letter (Adm. Ex. 15) were not false, and that she was merely "encouraging Chris [Mixon] to talk to his lawyer [Campbell]," and that if Campbell "is seeking that statement," Campbell "needs to" request it. (Tr. 272, 293) It is obvious that the Respondent could have encouraged Mixon to contact and work with Mr. Campbell without telling Mixon, falsely, that she was "not holding on to any of the evidence in your case that Geoff Campbell can't get by just asking the State's Attorney's Office to make him a copy." Consequently, her contention does not reasonably explain or justify the foregoing statements.
Furthermore, an attorney who acts in a dishonest or deceitful manner, particularly toward a client, tends to bring the legal profession into disrepute. See In re Stern, 128 Ill. 2d 310, 314, 315, 529 N.E.2d 562, 564 (1988); In re Petit, 06 SH 30, Hearing Board Report at 17 (Hearing Board Report approved in M.R. 21735, September 18, 2007).
The Respondent was additionally charged with violating Rule 3.3(a)(13). (Second Amended Complaint, para. 39(b)) The factual basis for this charge was the Respondent's failure to disclose to Mr. Campbell the transcript of Bell's May 23, 2006, statement, which was exculpatory to Mixon. (Tr. 311) We do not believe this charge was sufficiently proved.
We are not convinced that Rule 3.3(a)(13) is applicable to the facts of this case. The Rule provides that "in appearing in a professional capacity before a tribunal, a lawyer shall not … suppress any evidence that the lawyer or client has a legal obligation to reveal or produce." The language of the Rule indicates that it is directed at the suppressing or hiding of evidence from the court or opposing party, rather than being directed at conduct between an attorney and client. Nevertheless, the Respondent appeared in a professional capacity before a tribunal during her representation of Mixon from May 8 to June 7, 2006. (Adm. Ex. 1, p. 3-4) There was no evidence or allegation that, during the foregoing time period, she failed to reveal or produce any evidence. It was undisputed that at the time she was removed from Mixon's case she was not yet required to turn over documents or information in discovery to the State's Attorney. (Tr. 259) We agree with the Respondent that once she was removed as Mixon's counsel, on June 7, 2006, she was no longer appearing in a professional capacity before a tribunal in that case. (Tr. 326) Thus, by subsequently failing to turn over exculpatory evidence to Mixon's successor counsel, the Respondent did violate Rule 3.3(a)(13).
Finally, we are unable to find that the Respondent engaged in conduct prejudicial to the administration of justice. (Second Amended Complaint, para. 39(f)) An attorney's misconduct is prejudicial to the administration of justice if it has an adverse impact on a judicial proceeding, such as by causing needless delay, wasting a court's time or resources, or causing additional inconvenience or work for other parties or counsel. See In re Stormant, 203 Ill. 2d 378, 399, 786
N.E.2d 963, 974 (2002); In re Gerstein, 99 SH 1, M.R. 18377 (November 26, 2002) (Review Board Report at 23); In re McAvoy, 03 CH 8, M.R. 20463 (January 13, 2006) (Review Board Report at 15); In re Moll, 01 CH 46, M.R. 20918 (September 20, 2006) (Review Board Report at 10-11)
In this case, Mixon's criminal case was delayed, and the State's Attorney and the court were required to perform additional work. However, the guilty verdict at Mixon's first trial was vacated, and a new trial was ordered because Mr. Campbell provided ineffective assistance of counsel by not, at least, obtaining and reviewing the transcript of Bell's May 23, 2006, statement. (Adm. Ex. 20) The evidence showed that Campbell was aware of the transcript on or about August 1, 2006 (Tr. 109, 114), which was about twenty days before the commencement of Mixon's trial (Tr. 11, 170-71; Adm. Ex. 19), yet he deliberately did not seek to obtain that transcript (T. 110-12; Adm. Ex. 19, p. 7-8) Although the Respondent should have provided the transcript to Campbell, the evidence showed it was Campbell's inaction or ineffectiveness that caused the new trial and additional delay in Mixon's criminal case. Thus, the evidence did not prove that the Respondent's misconduct in regard to the transcript was prejudicial to the administration of justice.
Therefore, the Hearing Panel finds that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in paragraph 39(a), (c), (d) and (e) of the Second Amended Complaint: communicated with a party she knew to be represented by another lawyer in that matter without obtaining prior consent of the lawyer representing such other party, in violation of Rule 4.2 of the Illinois Rules of Professional Conduct; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4); withdrew from employment without delivering all papers and
property to which the client is entitled, in violation of Rule 1.16(d); and engaged in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.
The Hearing Panel also finds that the Administrator did not prove that the Respondent committed the following misconduct charged in paragraph 39(b) and (f): in appearing in a professional capacity before a tribunal, suppressed any evidence the lawyer or client has a legal obligation to reveal or produce (Rule 3.3(a)(13)); and engaging in conduct that is prejudicial to the administration of justice (Rule 8.4(a)(5)).
The purpose of the attorney disciplinary system is not to punish an attorney for misconduct, but rather "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, 981 (2006). In determining the appropriate sanction, we are to consider the nature of the misconduct as well as the aggravating and mitigating factors. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1199-1200 (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 legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000); In re Gorecki, 208 Ill. 2d at 361, 802 N.E.2d at 1200.
Although a sanction should be "consistent with those imposed in other cases involving comparable misconduct," it is also recognized that each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 1135 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473, 479 (1994).
The Administrator requested the sanction of suspension for a period of at least six months. (Tr. 316) The Respondent argued that, if there is a finding of misconduct, a censure or reprimand would be is the appropriate sanction. (Tr. 330)
The Respondent's misconduct in this case consisted of communicating with and obtaining a transcribed statement from her client's co-defendant without the consent of the co-defendant's attorney; failing, upon her discharge as appointed counsel, to turn over to her former client or to her successor counsel the transcript of the foregoing statement of the co-defendant, which was exculpatory to her former client; and falsely telling her former client that she was not holding any evidence in his case when, in fact, she was holding the foregoing transcript.
There is no doubt that the Respondent engaged in serious misconduct. By communicating with Mr. Bell without the knowledge and consent of Bell's attorney, the Respondent demonstrated a disregard for the attorney-client relationship. While that misconduct may be explained by an overzealous, but misguided, effort to help her client, her other misconduct consisted of intentional conduct that was directly contrary to the interests of her own client. The Supreme Court has stated that "[u]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 ethic." In re Gerard, 132 Ill. 2d 507, 541, 548 N.E.2d 1051, 1065 (1989). See also In re Twohey, 191 Ill. 2d 75, 89, 727 N.E.2d 1028, 1036 (2000) ("Respondent's failure to recognize such a clear conflict of interest in his representation of both a lender and a borrower reveals a lack of understanding of his ethical obligations as an attorney").
After listening to the Respondent's testimony and observing her demeanor, we do not believe that she intended to harm her client, Christopher Mixon. (Tr. 300) The Hearing Panel finds that the Respondent's testimony was candid, even though we find it difficult to accept her explanation for her failure to turn over evidence exculpatory to Mixon upon his request for information. However, the Respondent testified she was yielding to, and following the lead of, the defense strategy of Campbell, who clearly knew of Bell's exonerating statement. The testimony of the Respondent, in its most favorable light, is consistent with the Administrator's own witness, Campbell, an experienced court appointed alternate public defender, who testified he had decided to defend Mixon by not disclosing the transcript of Bell's statement.
It is perplexing to the Hearing Panel as to Campbell's judgment, as trial counsel, not to read nor use Bell's exonerating statement at Mixon's trial. It is equally perplexing why the Respondent made the decisions she did after Campbell was re-appointed as defense counsel. The Hearing Panel might conclude the Respondent was personally reluctant to surrender Bell's transcript, yet it was the Respondent herself who filed the post-verdict motion asking the trial court to set aside the guilty verdict against Mixon on the very basis that Campbell failed to use Bell's recanting statement that the Respondent had secured.
The Respondent's motives at the time she acted, or failed to act, is not clear from the evidence. Nevertheless, her conduct was contrary to the interests of Mixon and contrary to her fiduciary duties to Mixon, and the Respondent should have recognized this before she acted.
There is substantial mitigation in this case, directing the Hearing Panel to consider clemency. The Respondent has been a licensed attorney since 1991and has had no prior discipline. (Tr. 316) As noted by the Administrator, the Respondent did show "some remorse" in regard to her violation of Rule 4.2 (Tr. 316), and recognized that her communication with Bell
was "wrong " (Tr. 299). There was evidence that the Respondent is well respected in, and has provided considerable volunteer services to, her community. (Tr. 154, 162-65, 193-94, 197-98, 202-03; Resp. Ex. 15, p. 7-8)) Character witnesses, including two judges, testified as to the Respondent's good reputation for honesty and integrity. (Tr. 154, 165, 183, 194, 198, 203; Resp. Ex. 15, p. 8) Further, the Respondent did not engage in a pattern of misconduct. Her misconduct occurred in only one matter and during a short period of time. The nature of the misconduct, coupled with the undisputed testimony in regard to her community activities and reputation, shows that the Respondent's misconduct was a departure from her normal practice during an otherwise lengthy and unblemished legal career. See In re Myers, 98 SH 88, Review Board Report at 19 (attorney made a "serious mistake in an isolated incident" and "his misconduct was a aberration and departure from his otherwise distinguished career and good character") (Review Board Report approved in M.R. 17766, January 28, 2002).
If the Respondent's misconduct had only involved a lapse of good judgement due to her overzealous representation of her client, a censure or reprimand may have been the appropriate sanction. (See In re Toohill, 99 SH 11, Review Board Report at 8 (Petition to file exceptions to Review Board Report denied in M.R. 16952, November 21, 2002); In re Galic, 02 CH 104 (August 18, 2004) (Hearing Board Report at 16-17, 2021)). However, in light of her deliberate actions that were directly contrary to the interests of her client, we believe a suspension is necessary in this case.
We have not found, and were not cited to, any disciplinary case that contained facts substantially similar to those in this case. However, we believe the following cases involved misconduct of similar seriousness as that in this case, and are instructive in regard to the appropriate sanction in this case.
In In re Rosenfeld, 02 CH 57, M.R. 18855 (September 22, 2003), the attorney's client owned property that was sold at a tax sale for past due real estate taxes. In order to prevent the client from losing the property, Rosenfeld suggested, and the client agreed, that Rosenfeld would petition for a tax deed, would pay the necessary amount with funds provided by the client, and then Rosenfeld would subsequently return the property to the client. After the tax deed was issued to the attorney, he refused to return the property to the client. Rosenfeld contended that he was holding the property until the client paid fees that were owed. Rosenfeld had no prior misconduct and he recognized that his failure to return the property to his client was improper. The Supreme Court allowed the Petition for Discipline on Consent and imposed a suspension of 90 days.
In In re Carmick, 03 RC 1502, M.R. 18694 (May 22, 2003), a case of reciprocal discipline, Carmick, an experienced attorney, contacted his opposing party, his ex-wife, in a support matter without the consent of the ex-wife's attorney. After Carmick and his wife reached a settlement agreement, Carmick presented the settlement in an ex parte order to the court without notice to opposing counsel. Carmick misrepresented to the court that opposing counsel had approved the settlement. Carmack had been previously disciplined two years earlier for different misconduct. The Supreme Court allowed the Petition for Reciprocal Discipline and imposed a suspension of 60 days.
In In re Kuhn, 01 CH 102, M.R. 18176 (September 19, 2002), the attorney neglected a dissolution of marriage case, improperly settled the client's malpractice claim against him (Kuhn), and, as part of the settlement, improperly required the client to withdraw the request for investigation filed against Kuhn with the ARDC. Kuhn had been reprimanded several years
earlier. The Supreme Court allowed the Petition for Discipline on Consent and imposed a suspension of 60 days.
In In re Magafas, 99 CH 47, M.R 16911 (September 25, 2000), the attorney neglected a client's appeal in a dissolution of marriage case, and made false representations to opposing counsel and to the court. His false representations were that he had received from his client, and was holding, funds in the amount of the child support arrearage and attorney fees ordered by the court. Magafas had no prior discipline, admitted his misconduct, had performed pro bono work, and several character witnesses were willing to testify in his favor. The Supreme Court allowed the Petition for Discipline on Consent and imposed a suspension of 30 days.
In In re Bertuca, 98 CH 120, M.R. 17200 (January 19, 2001), the attorney neglected the cases of two clients and misrepresented to them the status of their cases. He had no prior misconduct and was cooperative in his disciplinary proceedings. The Supreme Court imposed a suspension of 90 days as recommended in the Review Board Report.
In In re Zussman, 97 CH 105, M.R 15035 (September 25, 1998), the attorney neglected a personal injury case and then misrepresented the status of the case to his client. He had no prior discipline and recognized the nature and seriousness of his misconduct. The Supreme Court allowed the Petition for Discipline on Consent and imposed a suspension of 30 days.
In In re Grosky, 96 CH 624, M.R. 15043 (September 28, 1998), the attorney fabricated a letter to opposing counsel in order to avoid paying sanctions and place his job in jeopardy. In addition, he initially made a false statement to the ARDC about the matter. He had no prior misconduct, acknowledged his misconduct, and presented favorable character witnesses. The Supreme Court imposed a suspension of 3 months as recommended in the Review Board Report.
In In re Papesh, 97 CH 12, M.R. 14254 (January 29, 1998), the attorney dismissed a personal injury lawsuit without the knowledge or consent of her client, took no action to reinstate it, and then falsely told her client that the case had settled. She then borrowed funds, paid the client with those funds, and falsely claimed that the funds were the settlement proceeds. Papesh had no prior discipline, had performed pro bono and other charity work, and recognized the nature and seriousness of her misconduct. The Supreme Court allowed the Petition for Discipline on Consent and imposed a suspension of 30 days.
Finally, in In re Carey and Danis, 99 SH 67 & 68, M.R. 18575 (May 22, 2003), the two attorneys had a conflict of interest when they represented current clients against a former client in a matter that was substantially related to matters in which they represented the former client. In a related federal lawsuit, the attorneys gave false answers in an interrogatory and in response to two production requests. The mitigation included the relatively young ages of the attorneys, their good reputations for honesty, their community and pro bono work, and no prior discipline. Also there was no evidence in aggravation. The Supreme Court imposed a suspension of 6 months as recommended in the Review Board Report.
After considering the nature and circumstances of the Respondent's misconduct, the mitigating factors present, the cases discussed above, and the purpose of the disciplinary system, we conclude that a short period of suspension is appropriate to protect the public, maintain the integrity of the legal profession, safeguard the administration of justice, and serve as a sufficient deterrent.
Therefore, we recommend that the Respondent be suspended from the practice of law for a period of forty-five (45) days.
Date Entered: August 5, 2008
|Leo H. Konzen, Chair, with Panel Members Claire A. Manning and Richard Matzdorff, concurring.|