Filed June 8, 2009
In re Kimberly A. Norton
Commission No. 07 SH 37
Synopsis of Review Board Report and Recommendation
The Administrator charged Norton with misconduct in connection with her representation of a defendant in a first degree murder case. The Administrator alleged that Norton communicated with another defendant in the case who was represented by a lawyer without obtaining the other lawyer's consent; suppressed evidence that she had a legal obligation to reveal or produce; engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; withdrew from employment without delivering all papers and property to which her client was entitled; engaged in conduct that is prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. Norton admitted some of the allegations, denied others, and denied all allegations of misconduct.
The Hearing Board found that the Administrator proved that Norton spoke with and took a sworn statement from another defendant in the murder case without obtaining his lawyer's consent; failed to turn over the sworn statement to her client after Norton's representation of him ended; acted dishonestly when she told her client that she had no evidence in the case that he could not get from the State's Attorney; and engaged in conduct that tended to bring the legal profession into disrepute.
The Hearing Board found that the Administrator did not prove that Norton acted dishonestly by writing on the jail visitor's record that she was visiting her client when she actually was visiting another defendant for the purpose of taking his statement; suppressed evidence from opposing counsel or the court; and engaged in conduct that prejudiced the administration of justice. The Hearing Board recommended that Norton's license be suspended for forty-five days.
On review, the Administrator argued that he proved that Norton acted dishonestly by writing the wrong name on the jail visitor's record and that her conduct prejudiced the administration of justice. The Administrator further asserted that Norton's license should be suspended for six months.
The Review Board reversed the challenged findings of no misconduct. It determined that the Administrator proved that Norton acted dishonestly when she wrote the wrong name on the jail visitor's record and that her conduct prejudiced the administration of justice. The Review Board affirmed the Hearing Board's remaining findings of fact and misconduct. It concluded that a ninety-day suspension was warranted.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
KIMBERLY A. NORTON,
Commission No. 07 SH 37
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellant charged the Respondent-Appellee, Kimberly A. Norton, with misconduct in connection with her representation of Christopher Mixon, a defendant in a first-degree murder case. The Administrator's one-count Second Amended Complaint alleged that the Respondent communicated with another defendant in the case who was represented by a lawyer without obtaining the other lawyer's consent, in violation of Rule 4.2 of the Illinois Rules of Professional Conduct; suppressed evidence that she had a legal obligation to reveal or produce, in violation of Rule 3.3(a)(13); 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 her client was entitled, in violation of Rule 1.16(d); engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and 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 Hearing Board found that the Administrator proved that the Respondent spoke with and took a sworn statement from another defendant in the murder case without obtaining his lawyer's consent; failed to turn over the sworn statement to her client, Mixon, after
the Respondent's representation of him ended; acted dishonestly when she told Mixon that she had no evidence in the case that he could not get from the State's Attorney; and engaged in conduct that tended to bring the legal profession into disrepute.
The Hearing Board found that the Administrator did not prove that the Respondent acted dishonestly by writing on the jail visitor's record that she was visiting Mixon when she actually was visiting the other defendant, Anthony Bell, and also failed to prove that she suppressed evidence from opposing counsel or the court. The Hearing Board found that the Respondent's conduct did not prejudice the administration of justice. It recommended that the Respondent's license be suspended for forty-five (45) days.
This matter comes before us on the Administrator's exceptions. He asserts that he proved that the Respondent acted dishonestly when she wrote Mixon's name on the jail's visitor's record and that the Respondent's conduct was prejudicial to the administration of justice as a matter of law. The Administrator does not challenge the Hearing Board's finding that he did not prove a violation of Rule 3.3(a)(13). The Administrator contends that the Respondent should be suspended for at least six months. The Respondent asks the Review Board to affirm the Hearing Board's findings and recommended sanction.
On April 25, 2006, Christopher Mixon and Anthony Bell were charged in Knox County with first-degree murder. Bell made a videotaped statement to the police on April 24, 2006, in which he said that Mixon handed him the gun that he used to shoot the victim. Public Defender James Harrell represented Bell and Public Defender Geoffrey Campbell represented Mixon. The Respondent was assigned to represent Mixon on May 8, 2006, after Campbell went on medical leave.
Bell sent the Respondent a letter on May 10, 2006, asking her to "pick up his case" because he wasn't happy with his attorney and indicating that he would testify that Mixon did not hand him the gun he used in the shooting.
The Respondent testified that, after she received Bell's letter, she talked with attorney Christopher Kanthak about whether she was allowed to speak with Bell. After consulting Hunter's evidence guide, some court opinions and pattern jury instructions, they concluded that Bell was an occurrence witness whom the Respondent had the right to interview. The Respondent testified that she was aware of Rule 4.2 but concluded that it did not apply in this situation because Bell was not a party to Mixon's case. She did not research any ethics opinions. The Respondent testified that she did not become aware of the prohibition against contacting an individual without his lawyer's consent until after the ARDC had initiated its investigation into this matter.
The Respondent sent investigator Mack Glass to interview Bell at the Knox County Jail (jail) on May 17, 2006. The Respondent did not inform attorney Harrell of the interview, nor did she obtain his permission for Glass to talk to Bell. Bell told Glass that he had lied to the police when he said that Mixon provided the gun that he used to shoot the victim. The Respondent then made arrangements to take a sworn statement from Bell. She called the jail to let the staff know that she would be coming to see Bell and to make sure she could bring a court reporter with her. The Respondent arranged for Glass and a court reporter to meet her at the jail.
The Respondent testified that, on May 23, 2006, after she and the court reporter arrived at the jail, she told the staff that she was there to see Bell. However, on the jail visitor's record, the Respondent wrote that she was visiting Mixon. The Respondent did not visit Mixon that day. The Respondent testified that she did not intend to deceive anyone regarding her visit
with Bell. She said that she had intended to visit Mixon that day but decided not to because she was in a hurry. On cross-examination, she acknowledged that in her sworn statement to the ARDC she said she wrote Mixon's name because she was there on his case.
Craig Carpenter, jail administrator for the Knox County Sheriff's Department, testified that the jail staff does not check the information that visitors write on the visitor's record, and that some visitors do not sign the visitor's record.
The Respondent, Glass, and the court reporter met with Bell in one of the jail's interview rooms. The court reporter transcribed Bell's sworn statement, in which he said that Mixon did not give him the gun. The Respondent did not tell attorney Harrell about or obtain his consent for the visit or the sworn statement.
The Respondent told Mixon that she had taken Bell's statement. She testified that, had she stayed in the case, she would have produced the statement during discovery.
The Respondent's representation of Mixon ended on June 7, 2006, when the court re-appointed Geoffrey Campbell as Mixon's attorney. Campbell sent the Respondent a letter on June 15, 2006, asking her to turn over any reports, videos, and photographs that the State's Attorney had produced. The letter further stated that Glass told Campbell that he had done some preliminary interviews and had taken some photographs of the crime scene. Campbell asked the Respondent for "copies of any and all information provided to you as a product of that investigation." The Respondent asked Campbell to issue a subpoena for the information, which Campbell did. The subpoena requested all information provided by the State's Attorney and "preliminary interviews, photographs, and reports provided by Mack Glass, Johnson Investigations." In response to the subpoena, the Respondent produced some documents, but not
Bell's sworn statement. The Respondent testified that she did not give Bell's statement to Campbell because he did not specifically ask for it.
Mixon subsequently sent the Respondent a letter asking her to represent him or to "please release the information you have." The Respondent sent Mixon a letter on July 11, 2006, telling him, "I am not holding on to 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."
Mr. Campbell testified that he was aware of Bell's statement by August 1, 2006, a few weeks before Mixon's trial. Campbell said that he did not try to get a copy of the statement because, according to Bell's attorney, Bell would not testify at Mixon's trial. Campbell believed that if Bell did not testify his statements about Mixon would be inadmissible. Campbell did not want to introduce the sworn statement and possibly open the door to Bell's videotaped statement implicating Mixon.
During jury selection for Mixon's trial, Campbell informed the prosecutor, Paul Mangieri, that Bell's sworn statement existed. They discussed the statement with the judge and informed the judge that neither of them had any knowledge of the substance of the statement. Mangieri made an oral motion in limine to exclude the sworn statement. The judge asked Mixon whether he wanted to continue the trial so that he could obtain the sworn statement, or to allow the trial to go forward. After consulting with Campbell, Mixon informed the judge that he wanted the trial to proceed. The judge then granted the motion in limine to exclude Bell's statement.
At Mixon's trial, Bell asserted his Fifth Amendment right against self-incrimination and did not testify. The judge allowed the State to play Bell's videotaped
statement for the jury. The jury found Mixon guilty of first-degree murder and aggravated discharge of a firearm.
Campbell filed a motion for a new trial. The court, sua sponte, also moved for a new trial on the ground that Campbell provided ineffective assistance of counsel to Mixon regarding Bell's sworn statement.
On October 20, 2006, the Respondent filed a motion to substitute as Mixon's counsel, asserting that Campbell provided ineffective assistance of counsel at trial. The State argued that the Respondent should be disqualified from representing Mixon because she acted unprofessionally in taking Bell's statement and could have a conflict of interest if the State called her as a witness at the hearing on the motion for a new trial.
The court granted its own motion for a new trial after finding that Campbell's failure to obtain and review Bell's sworn statement constituted ineffective assistance of counsel. It appointed attorney Anthony Vaupel to represent Mixon. Mixon accepted an offer from the State on the first day of his new trial.
Eight witnesses testified that the Respondent has an excellent reputation in the legal community for honesty and integrity. In addition, the Respondent testified that she is involved in several community organizations and handles between two and ten pro bono cases per year. She has no prior discipline.
The Administrator's first argument is that the Hearing Board erred when it found insufficient proof of dishonest conduct in connection with the Respondent writing Mixon's name on the jail visitor's record when she went to visit Bell. The Hearing Board found that the
Administrator did not present clear and convincing evidence that the Respondent acted with intent to deceive or defraud.
The Administrator must prove the charges against a respondent by clear and convincing evidence. In re Timpone, 208 Ill.2d 371, 380, 804 N.E.2d 560 (2004). We defer to the Hearing Board's factual findings and will not disturb them unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961 (2006). A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill.2d at 542, 848 N.E.2d 961. Our review of the Hearing Board's legal conclusions, including whether the facts found constitute the charged misconduct, is de novo. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E.2d 906 (1994).
Rule 8.4(a)(4) prohibits attorneys from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. In proving an 8.4(a)(4) violation, the Administrator is required to prove scienter. Mere negligence is not sufficient. See In re Jakubowski, No. 93 CH 455 (Review Board, May 10, 1996); approved and confirmed, No. M.R. 12728 (Sept. 24, 1996). The parties disagree, however, over what level of scienter is required. The Administrator asserts that there are different elements of proof for the different types of conduct listed in Rule 8.4(a)(4). He further asserts that he may establish dishonesty by showing that the Respondent made a false statement, knowing that it was false at the time she made it. The Respondent argues that the Administrator must prove that the Respondent had an intent to deceive or defraud and that we should defer to the Hearing Board's finding that there was no such intent in this case.
In interpreting Rule 8.4(a)(4), the Review Board has stated that its terms are not necessarily synonymous and has found dishonest conduct in the absence of fraudulent intent. In In re Meyer, No. 01 SH 81 (Review Board, April 15, 2004), petition for leave to file exceptions
denied, No. M.R. 19491 (Sept. 24, 2004), the Review Board distinquished dishonesty from fraud. It defined dishonesty as a "disposition to lie, cheat, or defraud; untrustworthiness; lack of integrity." Meyer, No. 01 SH 81, Review Board Report and Recommendation at 6. It noted that the Terminology section of the Rules of Professional Conduct defines fraud as "conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information." Meyer, No. 01 SH 81, Review Board Report and Recommendation at 6.
The respondent in Meyer had endorsed and disbursed to his client a settlement check which stated that it was a full settlement of all of the client's claims. Meyer believed that his client was entitled to pursue additional recovery from another party, and therefore did not obtain his client's signature on a release of all claims. Meyer had previously advised the opposing party that his client would sign a release only as to certain claims. The Review Board concluded that Meyer acted dishonestly by endorsing and disbursing the settlement draft, thereby violating Rule 8.4(a)(4), but did not intend to perpetrate a fraud on the opposing party. Meyer, No. 01 SH 81, Review Board Report and Recommendation at 6-7. Accordingly, based on Meyer, we agree with the Administrator that proof of fraudulent intent is not necessarily required to establish a violation of Rule 8.4(a)(4). See also Panel Member Zimmerman's special concurrence in In re Wheaton, No. 02 CH 59 (Review Board, Nov. 3, 2005), petition for leave to file exceptions denied, No. M.R. 20663 (March 20, 2006) (asserting that each term in Rule 8.4(a)(4) should be read narrowly and treated as a distinct category of conduct. Dishonesty is the broadest of the terms and should require only a showing of a lack of integrity or straightforwardness.)1
The Hearing Board did not make a finding as to whether the Respondent knowingly made a false statement. Pursuant to Supreme Court Rule 753(d)(3), we may make
such additional findings as are established by clear and convincing evidence. The following undisputed evidence leads us to conclude that the Administrator clearly and convincingly established that the Respondent knowingly made a false statement when she wrote Mixon's name on the jail visitor's record.
The Respondent never sought or obtained the consent of Bell's attorney, Harrell, to speak with Bell or take his statement. The Respondent did, however, go to considerable effort prior to her meeting with Bell; researching whether she was allowed to speak with him, calling the jail staff to let them know that she would be coming to meet with Bell, and arranging for Glass and a court report to go with her. Upon arriving at the jail, the Respondent told the jail staff that she was there to see Bell. Despite all of her advance preparation and her verbal statements that she came to visit Bell, the Respondent wrote on the visitor's record that she came to see Mixon. Although the Respondent testified that she had intended to meet with Mixon as well, she did not tell the staff that she wanted to see Mixon. The Hearing Board found that the Respondent's explanations as to why she wrote Mixon's name on the visitor's record were inconsistent.
Additionally, we consider the evidence of the Respondent's conduct after she took Bell's statement. After Campbell was reinstated as Mixon's attorney, the Respondent told Mack Glass's supervisor, Stephen Johnson, that she wanted Glass to turn over to Johnson everything he had pertaining to the Mixon case. The Respondent also told Johnson not to turn over anything pertaining to Mixon's case to Campbell. Despite the fact that the Respondent recognized the importance of Bell's statement, she did not advise Campbell of the statement nor did she give Mixon the statement after her representation of him ended. Based on this evidence, we can only conclude that the Respondent knowingly wrote the wrong name on the jail visitor's record and
later attempted to cover up the fact that she took Bell's statement. There is no other reasonable explanation for her actions. Thus, the evidence of the Respondent's entire course of conduct goes beyond suspicious circumstances and compels us to find that the Respondent knew that her statement that she was visiting Mixon at the jail was false and dishonest when she made it.
Contrary to the Hearing Board, we do not believe that the importance, or lack thereof, that the jail staff placed the visitors' record is determinative of this issue. As we have noted, the Respondent was concerned with keeping her visit from the other attorneys in the murder case, not from the jail personnel.
Accordingly, for all of the foregoing reasons, we reverse the Hearing Board's finding that the Administrator did not prove a violation of Rule 8.4(a)(4) with respect to the jail visitor's record and now find that the Respondent did violate Rule 8.4(a)(4).
Next, we address the Administrator's argument that the Respondent's conduct prejudiced the administration of justice as a matter of law. Specifically, the Administrator argues that the Hearing Board improperly considered only whether the Respondent's misconduct affected the outcome of Mixon's motion for a new trial and not the proceedings that preceded the order granting a new trial.
It is well-settled that in order to prove a violation of Rule 8.4(a)(5) the Administrator must provide clear and convincing proof of actual prejudice to the administration of justice. In re Vrdolyak, 137 Ill.2d 407, 425, 560 N.E.2d 840, 148 Ill.Dec. 243 (1990). The Supreme Court has held that a lawyer's obligations under Rule 8.4(a)(5) include "a duty to assist the court in administering justice and in arriving at correct conclusions." In re Smith, 168 Ill.2d 269, 287, 659 N.E.2d 896, 213 Ill.Dec. 550 (1995). "One aspect of the duty to assist the administration of justice requires lawyers engaged in litigation to aid the court in ‘the expeditious
consideration and disposal of cases.'" Smith, Ill.2d at 287, quoting People v. Buckley, 164 Ill.App.3d 407, 413, 115 Ill.Dec. 428, 517 N.E.2d 1114 (1987).
Both the Administrator and the Hearing Board focus only on the Respondent's failure to provide the transcript of Bell's statement when addressing whether she violated Rule 8.4(a)(5). We see no basis in the Second Amended Complaint, however, for this limitation. Accordingly, we look at all of the Respondent's misconduct when evaluating whether she engaged in conduct that was prejudicial to the administration of justice. We determine that the Respondent's conduct that gave rise to violations of Rules 4.2 and 1.16(d) also prejudiced the administration of justice.
The Hearing Board held that the Respondent's failure to turn over Bell's statement to Mixon, in violation of Rule 1.16(d), did not prejudice the administration of justice because Mixon's attorney, Campbell, was aware of the statement prior to trial and chose not to obtain a copy of it. We disagree. While Campbell's actions may have had an effect on the proceedings, the facts as found by the Hearing Board clearly and convincingly establish that the Respondent's misconduct detrimentally affected both the fairness and the efficacy of Mixon's trial. Because of the Respondent's failure to produce Bell's statement, Mixon elected to proceed with a jury trial for first-degree murder without knowing the details of a statement that exonerated him. The trial court granted Mixon a new trial in part because his waiver of his right to discover the contents of Bell's statement was not voluntary or intelligent due to Mixon's and Campbell's lack of knowledge of the statement's contents.
The blame for Mixon's lack of knowledge must lie with the Respondent. The Respondent admitted that, had she remained in the case, she would have produced Bell's statement. However, when Mixon asked her to "please release the information that you have,"
she not only failed to produce Bell's statement but misrepresented to Mixon that she was not holding any evidence that Campbell could not get from the State's Attorney. By withholding Bell's statement, the Respondent negatively affected Mixon's ability to make informed decisions about his trial, including his attorney's strategy. This, in turn, led to the court's sua sponte motion for a new trial and its ultimate decision to grant Mixon a new trial. These additional proceedings are attributable to the Respondent, at least in part. Therefore, we reverse the Hearing Board's finding and find that the Respondent's violation of Rule 1.16(d) did prejudice the administration of justice.
We make the additional finding that the Respondent's improper communication with Bell, in violation of Rule 4.2, also served to prejudice the administration of justice. In In re Peters, No. 04 CH 127 (Review Board Sept. 22, 2006), petition for leave to file exceptions denied, No. M.R. 21252 (Jan. 12, 2007), the respondent was found to have violated Rule 4.2 when, in a dissolution matter, she revised a settlement agreement and had her client, the husband, deliver the revised agreement to his wife and obtain her signature. Neither Peters nor the husband provided the revised agreement to the wife's attorney before the parties signed it. Peters challenged the finding that her conduct prejudiced the administration of justice, because the court approved the settlement agreement.
The Review Board rejected Peters' argument and held that Peters' interference with the relationship between the wife and her attorney deprived the wife of the benefit of her attorney's advice before signing the settlement agreement and thereby prejudiced the administration of justice. Peters, No. 04 CH 127, Review Board Report and Recommendation at 8-9. See also In re Morelli, No. 01 CH 120 (Review Board, March 2, 2005), approved and confirmed, No. M.R. 20136 (May 20, 2005), in which the Hearing Board, without discussion,
found that the respondent's interview of his client's co-defendant without his attorney's consent violated Rule 8.4(a)(5). Similar to Peters, the Respondent in the case at bar deprived Bell of the opportunity to consult with his attorney about whether giving a statement to the Respondent would harm his interests, particularly given that his statement to the Respondent contradicted his earlier statement to the police. The Respondent's Rule 4.2 violation therefore serves as an additional basis for our determination that her conduct prejudiced the administration of justice in violation of Rule 8.4(a)(5).
We turn next to the sanction. The Hearing Board recommended that the Respondent receive a 45-day suspension. The Administrator contends that she should be suspended for at least six months.
The Hearing Board's sanction recommendation is advisory. In re Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900 (1981). When considering the sanction, we bear in mind that the purpose of the disciplinary system is not to punish attorneys, but to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re LaPinska, 72 Ill.2d 461, 473, 381 N.E.2d 700 (1978). We consider all of the pertinent circumstances, including the nature of the misconduct and the mitigating and aggravating factors. Our goal is to recommend a sanction that is consistent with sanctions imposed in cases involving similar misconduct, but we must also evaluate each case on its own particular circumstances. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993)
The Respondent's misconduct was serious, and included meeting with and taking a sworn statement from defendant Bell without his attorney's knowledge or consent, failing to provide her former client Mixon with a copy of Bell's statement after the Respondent's representation ended, and acting dishonestly on two occasions. Her conduct was self-serving
and contrary to the interests of Mixon, who faced the possibility of conviction for first-degree murder.
As the Hearing Board noted, there is no other disciplinary case with facts that resemble the case before us. The following cases, however, are sufficiently similar to the instant case to guide us in making our recommendation.
With respect to the Rule 4.2 violation, we find In re Morelli, No. 01 CH 120 (Review Board, March 2, 2005), approved and confirmed, No. M.R. 20136 (May 20, 2005), to be instructive. Morelli represented a criminal defendant, Lechuga, who was charged with attempted murder of a police officer. Initially, Lechuga's co-defendant, Parras, had a private attorney who allowed Parras to speak with Morelli. Later, the Public Defender began representing Parras. Morelli asked Brenda Covey, Parras's new attorney, if he could speak with Parras. Morelli told Covey that he wanted to tape record Parras's statements to him. Covey refused to allow Morelli to speak with Parras, even though Parras also requested that he be allowed to speak to Morelli. Morelli forwarded to Covey a note written by Parras stating that he wanted to see Morelli. Morelli wrote on the note that he was going to see Parras the following Sunday morning. At Covey's request, her supervisor, Kane County Public Defender David Kliment, sent Morelli a letter forbidding him from speaking to Parras. Nevertheless, Morelli visited Parras twice in jail and recorded statements in which Parras admitted that he, not Morelli's client, was the shooter and also recanted statements he had made to the police. Unlike Respondent, Morelli did not engage in any dishonest conduct. He was found to have violated Rule 4.2 and also to have engaged in a conflict of interest in a separate matter. The Supreme Court suspended him for thirty (30) days.
With respect to the Respondent's violation of Rule 1.16(d), there are numerous cases in which attorneys have failed to return papers or property to a client after the representation has ended. However, our research has not revealed any such Illinois case involving a criminal matter. The instant case is similar, though, to a Louisiana case, In re Jordan, 913 So. 2d 775 (La. 2005). Jordan, a prosecutor in a capital case, failed to disclose a statement by a key witness that cast doubt on the witness's previous statements identifying the defendant. The Louisiana Supreme Court suspended Jordan for three months, with the suspension deferred by probation due to positive character evidence and the absence of a dishonest motive.
Suspension may also be warranted in cases involving dishonest conduct. In In re Bradley Verett, No. 07 SH 105 (Hearing Board, June 17, 2008), approved and confirmed, No.M.R.22567 (September 17, 2008), the respondent represented Christopher Nolan, who had an ongoing dispute with his former wife, Tanna Nolan, about their son Cooper's medical treatment. Tanna, who had temporary custody of Cooper and sole authority for making decisions about his medical treatment, scheduled a tonsillectomy for Cooper. Christopher was enjoined from contacting Cooper's medical providers except in case of emergency. The respondent, on Christopher's behalf, filed a motion in Madison County to enjoin Cooper's tonsillectomy. After the Madison County court denied Christopher's motion, the respondent presented an ex parte emergency motion in a Missouri court, seeking the same relief. The Missouri judge asked the respondent if she had taken any steps in Illinois to stop the surgery, and the respondent replied that she had not. She also failed to inform the Missouri court that the Madison County court had given Tanna custody of Cooper and had permanently enjoined Christopher from interfering with Cooper's medical treatment.
The Supreme Court suspended Bradley Verett for ninety (90) days and ordered her to complete the Illinois Professional Responsibility Institute's professionalism seminar. The level of dishonesty in Bradley Verett was greater than the Respondent's, but the Respondent engaged in additional serious misconduct including taking Bell's statement without his attorney's consent and refusing Mixon's request to provide him with a copy of Bell's statement exonerating him.
The foregoing cases support a short period of suspension for the Respondent. Her dishonest conduct and disregard for her former client's interests make her misconduct more egregious than Morelli's and Jordan's. However, we do not believe that the six-month suspension urged by the Administrator is warranted.
The cases cited by the Administrator in support of a six-month suspension involve more serious misconduct than the Respondent's and are not applicable here. The attorney in In re Holman, No. 96 CH 679, petition to impose discipline on consent allowed, No. M.R. 12939 (Nov. 26, 1996) deliberately concealed from opposing counsel information that was harmful to his client and knowingly filed a frivolous action on his client's behalf. The Respondent did not do so here. In In re Humphries, 354 S.C. 567, 582 S.E.2d 728 (2003), a South Carolina prosecutor knew that the Sheriff's Department had improperly videotaped a privileged conversation between a murder suspect and his attorney. The prosecutor did not disclose this information to opposing counsel for over one year despite his obligation to respond to a discovery request that specifically asked for all statements made by the defendant. Such a lengthy period of ongoing misconduct is not present here.
We conclude that a six-month suspension would be punitive and is not warranted under the circumstances of this case. This is especially true in light of the Respondent's
substantial mitigating evidence. Numerous character witnesses, including attorneys who were involved in the Mixon case as well as a circuit court judge, testified that the Respondent has an excellent reputation for honesty and integrity. In addition, she performs a significant amount of pro bono work each year and is active in her community.
The Respondent also recognized that it was wrong for her to talk to Bell without his attorney's consent, and she testified that she was sorry if her conduct prejudiced the administration of justice or brought the legal profession into disrepute. The Respondent has no prior discipline in over fifteen years of practice. The evidence presented to the Hearing Board suggests that the Respondent's misconduct resulted from an isolated error in judgment in an otherwise capable legal career. Accordingly, after considering all of the relevant circumstances and case law, we recommend that the Respondent's license to practice law be suspended for ninety (90) days.
We affirm the Hearing Board's findings of fact and misconduct except that we reverse the findings that: (1) the Administrator did not prove a violation of Rule 8.4(a)(4) with respect to the Respondent writing Mixon's name on the jail visitor's record; and (2) the Administrator did not prove that the Respondent's conduct prejudiced the administration of justice in violation of Rule 8.4(a)(5). We recommend that the Respondent's license be suspended for ninety (90) days.
Date Entered: 8 June 2009
Terence V. O'Leary
1 See also Comments to ABA Model Rule 8.4(c) and cases cited therein, stating that a respondent's intent or purpose to deceive is generally irrelevant when determining whether a Rule 8.4(c) violation was proved, but that a showing of knowledge or reckless disregard is required.