Filed February 3, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ALLEN W. JAMES,
Commission No. 08 SH 105
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on September 6, 2011, 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, Randall B. Rosenbaum and Richard Corkery. The Administrator was represented by Denise Church. The Respondent was present at the hearing and was represented by John Womick.
The Administrator filed a one-count Complaint against the Respondent on September 9, 2008. On August 26, 2011, paragraphs 18, 19, 21, 22, 23(b) and 23(c) of the Complaint were stricken on motion of the Administrator.
The Complaint alleged that the Respondent, while serving as the State's Attorney of Union County, committed the criminal offense of Aggravated Assault, in violation of 720 ILCS 5/12-2(a)(1) (2008). The Aggravated Assault was committed against Christopher Dees, a licensed private detective. Between 7:30 and 8:00 a.m., on March 19, 2008, Dees approached the Respondent in the parking lot of the Union County Courthouse in an attempt to serve a summons and copy of a complaint upon him, in regard to the case of Billie Henderson v Allen
James, et al., No. 3:07-cv-00618 (S.D. Ill.). Dees identified himself, displayed a badge, stated that he was a process server, and called the Respondent by name. The Respondent pulled a loaded .380 semi-automatic handgun from his pocket and pointed it at Dees. Dees identified himself again, and the Respondent continued to point the gun at Dees. Dees then threw the summons and complaint at Respondent's feet and left.
The Complaint charged that the Respondent engaged in the following misconduct: committed a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct (1990); engaged in dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4); 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 Respondent filed an Answer on October 20, 2008, in which he admitted some factual allegations in the Complaint, denied others, and denied all of the charges of misconduct.
The Administrator called the Respondent as an adverse witness, and the Administrator's Exhibits 1 through 8 were received into evidence. (Tr. 11-12, 155-58). The Administrator also called Ben Parks, Byron Farthing, and Christopher Dees as rebuttal witnesses. The Respondent testified in his own behalf, and presented the testimony of nine other witnesses. The Respondent's Exhibits 1, 2, 3 and 6 were received into evidence. (Tr. 174-75, 196-97, 213, 220).
The Respondent testified that he is 49 years of age. He was born in New York, but grew up in Anna, Illinois. He has attended the same church in Anna since he was a child, and
previously served as an elder. He was involved in the various activities of his children when they were younger. (Tr. 103-106, 139-40).
He received a bachelor's degree in geological engineering from the University of Missouri at Rolla. He is a licensed engineer, and worked at the Illinois Department of Transportation for 10 years. He then went to law school at Southern Illinois University and graduated in 1997. He became a licensed attorney in the same year. (Tr. 104-105). He is a member of the Illinois State Bar Association, the Jackson County Bar Association, and the Illinois Society of Professional Engineers. (Tr. 151). He was elected and served one term on the Anna City Council. (Tr. 106-107). Since 2008, the Respondent has assisted his brother-in-law in getting pickers from Mexico to work in Illinois. The Respondent handles the legal aspects to make sure the pickers have visas and are in this country legally. He also represents the pickers in various legal matters without charge. (Tr. 140-43).
The Respondent was elected State's Attorney of Union County in November 2004. He was defeated in his reelection bid in 2008. (Tr. 108-10, 141). Within a few weeks after taking office, two former state's attorneys in adjacent counties told the Respondent about the dangers they had faced and advised him to carry a gun. (Tr. 109). Law enforcement officials in Union County began a strong push to prosecute and obtain forfeitures in drug cases. By the fall of 2007, drug convictions and forfeitures had increased, and the Respondent heard about threats being made against him and others. Near the end of 2007, a deputy sheriff, Asa Busby, told the Respondent about a specific threat to kill the Respondent and Busby. A vehicle owned by a man named Robby Gunther had been forfeited, and an informant then told Busby that Gunther had made the foregoing threat. Busby and a captain in the sheriff's office, Scott Harvel, told the Respondent that he needed to carry a gun. Harvel suggested that the Respondent purchase a Kel-
Tec handgun. The Respondent said he was finally convinced that he needed a gun. In January 2008, Harvel told the Respondent that a Kel-Tec was available in Pinckneyville, and the Respondent then purchased that gun. (Tr. 113-17).
After the Respondent became State's Attorney, he retained an employee named Billie Henderson as his secretary. However, she "had difficulties and [he] fired her." (Tr. 118). Henderson then filed three "labor actions" against the Respondent relating to her termination of employment. In January 2008, Henderson denied that any further litigation had been filed against the Respondent. Thus, as of March 2008, the Respondent was not aware of any new legal action having been filed against him by Henderson. (Tr. 20, 118-20).
On the morning of March 18, 2008, the Respondent became aware that a process server was trying to serve papers on him. His secretary, Julie Mawley, told him that a process server came to the state's attorney's office with papers for the Respondent. She brought those papers into the Respondent's personal office. However, the Respondent refused to take the papers from Ms. Mawley. He noted that he was very busy preparing for a murder trial that was to start the next week. He did not see the process server at that time. (Tr. 21-23, 122-23). Later on the same day, the Respondent telephoned his wife and told her that a process server may come to their home. He also told her "not to answer the door." The process server did show up at the Respondent's home, and his wife did not answer the door. (Tr. 23-25, 123-25).
After the Respondent arrived home from work on the evening of March 18, 2008, someone came to the front door, but the Respondent did not go to the door. (Tr. 25-26). The Respondent saw a dark green over gray van parked in his driveway, behind the Respondent's truck. (Tr. 123-24). He called the Anna Police Department and spoke with the dispatcher, Danny Holdman. The Respondent identified himself and stated that he knew the police were
busy because of heavy rain and flooding. He asked that, if "somebody has time," could an officer asked the driver to move the van in the driveway because the Respondent was going to be leaving. He also mentioned to the dispatcher that the person parked in his driveway was the process server who had gone to his office earlier. The Respondent acknowledged that he did not want to cooperate with the process server. The Respondent never saw the process server that evening. (Tr. 27, 124-25).
On the following day, March 19, 2008, the Respondent left for work at 7:25 a.m., and drove to the courthouse parking lot. (Tr. 28, 128). He parked at the "lower end" of the lot. It was raining "pretty good" and, when he got out of his truck, he opened a golf umbrella. He walked up the hill toward the side door of the courthouse, which was between 120 and 150 feet away. (Tr. 129-30, 254). While he was walking, he had his head down and was thinking about his upcoming murder trial. (Tr. 131). He heard a noise behind him, turned, and saw a van come into the parking lot. The van "came speeding up the parking lot," went past the Respondent, and pulled into a parking space ahead of him. (Tr. 132). He said this was not the same van that was parked in his driveway the night before. (Tr. 123-24). The Respondent saw a man get out of the van and "come running" or "trotting" toward the Respondent "fairly quickly." (Tr. 133, 254). At first, the Respondent thought the man was a "meth cook" named Rusty Smith. But, when the man got closer, Respondent knew it was not Smith. (Tr. 133, 136). The man had his left hand under a fleece he was wearing. (Tr. 133). The Respondent's hand was in a pocket where his gun was located. He pulled the gun out, and said "stay back, I don't know who are." (Tr. 134-35). The Respondent denied that he pointed his gun at the man, but said the gun was "pointed in his direction." (Tr. 137, 156-57). The man kept coming toward the Respondent, and pulled out something that looked like a wallet. He flung open the wallet, showed the Respondent a "white
card with red across the top," and said he was a process server. (Tr. 134-35, 137, 154). The Respondent did not see a badge. (Tr. 254). At that point, the Respondent thought the man was "probably the process server." (Tr. 154). The Respondent, while still holding his gun in his hand, again said "stay back, I don't know who you are." (Tr. 135, 154-55). The man came closer to the Respondent, said "I'm serving these papers" and tossed them down at the Respondent's feet. (Tr. 135, 255). The Respondent said "get back," and the man turned and went back to his vehicle. (Tr. 135). As the Respondent was walking up the steps to the side door of the courthouse the same man came near the handrail and said "I'm a process server, you can't pull a gun on me, I'm going to go to the sheriff's department." The Respondent replied "go ahead." (Tr. 135).
The Respondent testified that he believes he was justified in pulling the gun on the man in the parking lot, who he now knows is Christopher Dees (Tr. 146). He explained that he pulled the gun because he was in fear for his safety. (Tr. 136, 146, 255). He also said he was not trying to avoid service of process. (Tr. 138).
The Respondent wrote a letter to the Illinois State Police about the above incident. (Adm. Ex. 7). The letter did not mention that he realized at some point during the incident that the other man was probably a process server. He explained that "lots of things" were not in the letter because the letter "was done in rush just to get them a statement." (Tr. 155-56). He said he also talked with the State Police, and did not tell them anything that was different from his testimony in this matter. (Tr. 137-38). When asked if Brian Trambley was present as his legal counsel when he spoke with the State Police, the Respondent replied that Trambley was present, but not as legal counsel. The Respondent acknowledged that in his deposition he had stated that Trambley was there as his legal counsel. (Tr. 151-52).
The Respondent was charged with two felony offenses arising out of the incident in the parking lot with Dees. He was charged with Unlawful Use of Weapons, a Class 3 felony, and Disorderly Conduct, a Class 4 felony. (Tr. 143-44). He said he was ready to go to trial, and felt he had a "good chance of success." The special prosecutor then offered to drop the felony charges if the Respondent agreed to a stipulated bench trial to the misdemeanor offense of Aggravated Assault and a disposition of supervision. This would mean that his record would be cleared upon his completion of the supervision term. He accepted the offer because he thought the risk of going to trial on the felony charges was "too great." (Tr. 144-45). At the stipulated bench trial on June 20, 2011 (Adm. Ex. 2), the special prosecutor recited a factual basis to which the Respondent stipulated. (Adm. Ex. 2 at 14-18). The Respondent explained that he stipulated that the factual basis "would be the testimony and evidence presented by the people in this case," but he "didn't stipulate to the veracity, the truthfulness or the accuracy of [the factual basis]." (Tr. 33). For example, the factual basis recited by the special prosecutor included the following:
Mr. Dees got out of his van with his identification badge and identification in one hand and the papers that were to be served in the other, and called out to Mr. James.
And that upon calling out his name, Mr. James said, stay away from me, I don't know who you are. (Adm. Ex. 2 at 15).
The Respondent acknowledged that he stipulated to the foregoing statements, but contended that they are not true. (Tr. 28-29, 32). The Respondent further stated he did not agree that he was found guilty of Aggravated Assault at the stipulated bench trial. (Tr. 34). He explained that, from a criminal law aspect, he was not found guilty because of the supervision imposed upon him. He further stated, however, that "for the purpose of the ruling of this [Hearing] Panel yes, I was found guilty." (Tr. 36).
Finally, the Respondent was asked about having remorse. He said "[t]his was a situation that I feel the process server, Mr. Dees, put me in" and "[a]s far as remorse over that incident, yeah, I'm sorry it happened, but again I didn't put us in that position and nothing happened there that in my scheme is remorse." (Tr. 147-48).
Asa Busby testified that he has been employed by the Union County Sheriff's office since 1994. He has been a drug agent since 1995 and is a member of the drug task force. (Tr. 38-40).
In 2007 and 2008, there was a serious problem with methamphetamine in Union County. Busby said people who were cooking and dealing in meth "would threaten you and try to harm you and your family." Sometime in 2007, a confidential source told Busby that a man named Robby Gunther was mad at Busby and the Respondent "for taking his vehicle away and [said] he was going to kill" Busby and the Respondent. Busby took the threat seriously. (Tr. 41-43).
Also in 2007, perhaps in the fall, Busby told the Respondent about Gunther's threat and suggested the Respondent "carry a weapon." (Tr. 44-46, 49). Sometime before March 2008, Union County Sheriff Livesay, Captain Harvel, and Busby met with the Respondent. They discussed various types of guns, and told the Respondent that he "needed to get [a gun] for his safety." The Respondent did purchase a gun. (Tr. 47-48).
Scott Harvel testified that he is a captain with the Union County Sheriff's Office. In 2007 and 2008, he was assigned to investigations and, on occasion, worked with Asa Busby on drug cases. (Tr. 51-52).
Harvel said that, in late May or early June 2007, he participated in a conversation about guns. Sheriff Livesay, the Respondent, Busby and Brian Trambley were present. Harvel told
them about a gun, a Kel-Tec .380, he had recently purchased. After discussing two homicide cases they were working on, it was mentioned that "it would probably be a good idea if" the Respondent had a gun "for his own protection." (Tr. 52-54).
Harvel told the Respondent that a store in Pinckneyville had one Kel-Tec for sale. A few days later, the Respondent mentioned that he had purchased the weapon. Harvel said he did not know if the Respondent had any firearm training. (Tr. 54-55).
Mr. Duffy testified that he is 59 years of age and was licensed to practice law in 1987. He served two terms as State's Attorney of Pulaski County, from 1992 to 2000. He then went into private practice, and is a felony public defender in Union County. (Tr. 57-58).
Duffy said he had a conversation with the Respondent about the risk in being a state's attorney and the need to carry a gun. Duffy was not certain if this conversation took place before or after March 18, 2008. Duffy also told the Respondent that he (Duffy) believed state's attorneys have statutory authority to carry a gun. (Tr. 61-67).
Donald Brian Trambley
Mr. Trambley testified that he is 44 years of age and has a private law practice in Vienna. He was the State's Attorney in Johnson County for eight years, beginning in 1996. He was an Assistant State's Attorney in Union County when the Respondent was the State's Attorney. He is also a pastor of a church in Carbondale. (Tr. 68-69).
When the Respondent was State's Attorney in Union County, he and Trambley took strong action against meth offenders. This hit the offenders financially, by seizing their vehicles and other property. He said "people were going to prison and they were losing their property." At first there was "grumbling among the criminals," but later there were threats made against the
Respondent and Trambley. The information regarding the threats came from other law enforcement officers. (Tr. 69-70).
Prior to March 2008, Trambley and the Respondent discussed the need to protect themselves. Trambley was present when the sheriff and some deputies talked with the Respondent about getting a weapon for protection. The Respondent then purchased a handgun. (Tr. 70-75).
Shortly after 8 a.m. on March 19, 2008, Trambley had a conversation with the Respondent about an incident that took place in the courthouse parking lot a few minutes earlier. During that conversation, the Respondent said "some guy had come up . . . with his hand inside his jacket and that he had come at him and at that point in time [Respondent] told him to stop. The Respondent further stated that the man "wouldn't stop," the Respondent did not know who the man was, and the Respondent had not previously seen the van the man drove into the parking lot. Trambley acknowledged that the Respondent did not mention that, at some point during the incident, he knew the man was a process server. (Tr. 80-82, 84).
Trambley was present when the Respondent was interviewed by the State Police about the above incident. Trambley said he was not there as Respondent's counsel, but to "assist him and advise him." (Tr. 78-80).
Trambley has known the Respondent since they were children. He said the Respondent is a "pillar of the community," active in his church, and a volunteer announcer at football games in Vienna. Trambley also said that he has never heard anyone question the Respondent's honesty. (Tr. 76-78). Trambley said there was "quite a bit" of media coverage of the arrest of the Respondent and the charges against him. Trambley voiced the opinion that "it cost him the election [in 2008]." (Tr. 83).
In rebuttal, Mr. Trambley said he did not recall the Respondent making any comment about "just being a dick" during his interview by the State Police. He also said that, during his own interview with the State Police, Officer Farthing asked if Trambley had heard the Respondent make the comment about "being a dick," and that Trambley "told him that that was wrong, that he never said that." (Tr. 243-44, 250-51).
Ms. Aldridge-Cyphers testified that she is the Chief Deputy Clerk in the Union County Circuit Clerk's Office. She has held that position for five years. Before that she was employed by the Respondent in the State's Attorney's Office. Earlier, she worked as a paralegal in the Respondent's law office. (Tr. 99-101).
Ms. Aldridge-Cyphers described the Respondent as a "very honest person" who cares about people and their problems. She also said that he has an "upstanding reputation" in the community for honesty. Further, she has never seen "any outrageous act based on anger" by the Respondent. (Tr. 101-103).
Ms. Noble-Allgire testified that she has been a professor at Southern Illinois University Law School for about 16 years. She knew the Respondent as a student at the law school, and has kept in touch with him since then. (Tr. 160).
She voiced the opinion that the Respondent has "high integrity." She also mentioned that he was a member of the Southern Illinois American Inn of Court Chapter, an organization that promotes professionalism within the legal profession and teaches civility and integrity. (Tr. 160-61).
Ms. Noble-Allgire acknowledged that she is not familiar with the specific facts of the disciplinary charges against the Respondent. (Tr. 162-63).
Ms. McMahan testified that she is the Executive Director of Union County Counseling Services, which is a community mental health agency. She has known the Respondent for about seven years, while he was a board member of the agency. (Tr. 163-64).
Ms. McMahan voiced the opinion that the Respondent is honest, is dependable, and has absolute integrity. (Tr. 164-65).
Mr. Armes testified that he has been the Senior Minister at the First Christian Church in Anna for eight years. The Respondent is a member of that church. (Tr. 166-67).
Pastor Armes said that the Respondent served as an elder of the church, and has otherwise served the congregation on a personal and spiritual level. He voiced the "highest confidence" in the Respondent's integrity. (Tr. 167). The Respondent did some legal work for Armes and his wife without charging a fee. Similarly, the Respondent has performed free legal work for other members of the congregation. (Tr. 168-69).
Judge Boie testified that he has been the resident Circuit Judge for Union County since 2000. He presides over both criminal and civil cases. He is aware of the caseload in Union County involving methamphetamine manufacturers. As of March 2008, the methamphetamine caseload was "at its highest," and such cases were being vigorously prosecuted. Judge Boie was informed that a threat had been made against the Respondent, the sheriff, and some deputies. He was also aware that the Respondent was carrying a gun for his protection. (Tr. 176-79).
Judge Boie has known the Respondent since they were children. In fact, their families lived in houses across the street from each other, and Judge Boie was in the same class as the Respondent's younger brother through high school. Judge Boie said the Respondent was "always honest" with him, and voiced the opinion that the Respondent has "high integrity." (Tr. 179-82).
Danny J. Holdman
Mr. Holdman testified that he is 77 years of age and has lived in Anna for 30 years. He retired from the Anna Fire Department in 2009. (Tr. 170-71).
On March 18, 2008, Holdman was working as dispatcher for the police and fire departments in Anna. On that evening, he received a call from the Respondent, who stated that "there was a van parked in his driveway and he would like to have it removed." The Respondent also stated that he "thought it was a process server and . . . he's going to have to do better than that. He knew who it was." The Respondent did not say anything about the flooding that evening or bothering the police. (Tr. 171-72).
Holdman gave a written report to the police about the Respondent's call. (Resp. Ex. 1). His report did not mention anything about the Respondent saying the van was a process server's. (Tr. 173-74).
Mr. Farthing testified in rebuttal that he has worked for the Illinois State Police since 2006. In 2008, while he was working in the Investigation Division, he was assigned to interview the Respondent about an incident that occurred in the parking lot of the Union County Courthouse. One of the reasons he was assigned was because he had never worked with and did
not know the Respondent. Agent Parks of the Illinois State Police and Assistant State's Attorney Brian Trambley were also present at the interview. (Tr. 197-99).
Farthing said the tone of the interview with the Respondent was "relaxed" and the Respondent seemed to be "very cooperative." (Tr. 199). The Respondent acknowledged that he pulled a gun on another man in the parking lot the Union County Courthouse. (Tr. 209). The Respondent also said he did not know the name of the other man; he did not know the man was a process server when he first saw him in the parking lot; he thought the man "might have been a drug trafficker;" and he had heard about threats having been made against him. (Tr. 200, 205, 209).
Farthing also testified that, near the end of the interview, the Respondent "did kind of lean forward and with a half grin or a smirk said off the record, I suspected it was him [process server], but I was just being a dick." (Tr. 200, 209-10). Farthing did not write about the foregoing comment in his notes during the interview, but added it at a later time. (Tr. 200, 202-204; Resp. Ex. 3). Farthing explained that "I felt like we had a comfortable rapport and whenever he said off the record if I would have written down what he was saying off the record I felt like that would jeopardize the climate of the conversation." (Tr. 200, 204). Farthing added that off the record "doesn't mean anything," and "everything's on the record." (Tr.200-201).
About a month after the interview of the Respondent, Farthing interviewed Trambley. Special Agent Mary Kay Rolep was also present. Farthing said that, during the interview, he mentioned to Trambley the Respondent's comments about suspecting the man in the parking lot was a process server and Respondent was "just being a dick." According to Farthing, Trambley did not "correct" or "refute" Farthing's comments. However, when Farthing returned to his office, he had a telephone massage from Trambley. He then spoke with Trambley, who said he
did not recall the Respondent having made the "dick remark." Farthing was angered and offended by Trambley's comment because he felt Trambley was calling him a liar. (Tr. 211-14). Farthing acknowledged that neither Rolep's notes nor Farthing's report pertaining to the interview of Trambley mentioned Farthing's comments about what Respondent had previously stated. (Tr. 206, 214-17).
Mr. Parks testified in rebuttal that he has been employed by the Illinois State Police for 11 years. He is currently a Special Agent in the Medicaid Fraud Section. While previously assigned to a different unit, he had occasion to work on cases with the Respondent, when the Respondent was State's Attorney. Parks said he liked working with the Respondent and "I thought he was a good State's Attorney." (Tr. 186-87, 191).
In March 2008, Parks was assigned to assist Trooper Bryon Farthing with an investigation involving the Respondent "pulling a gun on a process server at the courthouse." Farthing and Parks interviewed the Respondent regarding that incident. Parks described the tone of the interview as "relaxed," but "still professional." (Tr. 188-89. 191).
During the interview, the Respondent said he did not know the identity of the man on whom he pulled his gun in the courthouse parking lot. (Tr. 189, 192). The Respondent also said he had not previously seen the man; he was concerned for his safely because there had been threats made against Respondent's life; he pulled out his gun when the man "ran towards him;" and he put the gun down "as soon as" he thought the man was a process server. (Tr. 191-92).
Parks further testified that, towards the end of the interview, the Respondent said "he kind of suspected [the man] could have been a process server, but he was just being a dick" and he "wasn't completely sure but he pretty much . . . had an idea that he could possibly have
been one." (Tr. 190, 194). Parks acknowledged that he did not mention the foregoing statement by the Respondent in his notes of the interview. (Resp. Ex. 2). He explained that it was "pretty simple to remember" and "I just write the notes to, just in case somebody needed it so they can remember what he said . . . in the interview." (Tr. 191-92, 195-95).
Mr. Dees testified in rebuttal that he is 41 years of age and resides in Coulterville. He has been employed by Advanced Investigative Services for 13 years. One of his duties is to serve summons, which he has authority to do. (Tr. 222-23).
On the morning of March 18, 2008, Dees went to the Union County Courthouse to try to serve the Respondent with a summons. When he arrived at the State's Attorney's Office, he identified himself and showed identification to the secretary. He told her he had court documents to serve on the Respondent. She took the documents from Dees, and went into the back room. She then came back, returned the documents, and told Dees he wasn't allowed to serve them in the courthouse. (Tr. 223-24).
After leaving the courthouse, Dees drove to the Respondent's residence and arrived about 9 a.m. He knocked on the door, but there was no response. Later the same day, about 4:00 or 4:30 p.m., he parked near the Respondent's residence. After he saw a "teenager" enter the rear of the house, he knocked on the front door. He said he saw a "white female and the teenager" inside the house, but no one came to the door. (Tr. 225-26).
Dees drove back to the courthouse. When he arrived, he found the courthouse closed. He then drove back and parked near the Respondent's residence, to wait for the Respondent to return home. He saw the Respondent drive his vehicle into the driveway and park. Dees went to front door of the residence and knocked, but no one came to the door. Dees then pulled
his vehicle into the driveway and parked behind the Respondent's vehicle. Dees made some phone calls in an unsuccessful attempt to find the Respondent's telephone number. After that, a police officer arrived and told Dees to move his vehicle out of the driveway. Dees left and made no further attempt to serve the Respondent that evening. (Tr. 226-27).
Dees returned to Anna the following morning, March 19, 2008. He was driving a van, which was a different vehicle than the one he drove the day before. He drove to the Respondent's residence and saw the Respondent driving away. Dees drove to the courthouse, where he assumed the Respondent was going. Dees said he arrived at the courthouse parking lot about 7:30 to 7:40 a.m. The Respondent had already arrived and had parked. Dees drove his van past the Respondent, traveling at about 15 miles per hour, and parked near a side entrance. Dees said he was wearing a "Carhart shirt and jeans." It was raining, "a little heavier than a mist," but it was not dark. (Tr. 228-30).
Dees said that, when he got out of his van, he was about 30 to 40 feet away from the Respondent, who was walking toward him. Dees walked three or four steps, then called out the Respondent's name, and said he was "Chris Dees, a court officer." At that time, Dees "had my badge in my left hand and I had the papers in my right hand." He said he never reached into his shirt. The Respondent replied, something like, "stop . . . I don't know who you are." Dees then noticed that the Respondent "had a gun pointed at me." The Respondent had an umbrella in his left hand and the gun was in his right hand a little above his hip. Dees responded that he was the person who has been trying to serve papers on the Respondent. The Respondent again said he did not know who Dees was, and "kept on approaching with the gun pointed at me." When they were about six to ten feet apart, Dees told the Respondent that he (Respondent) had 20 days to respond and "tossed the papers in front of him." Dees further testified that he did not get out
of his van "quickly" or run toward the Respondent in the parking lot. He did not continue to approach the Respondent after he saw the gun because he was scared. Dees was also "mad" and "upset," and said something to the Respondent "about going to the police station." (Tr. 229-35, 238-41).
After the incident in the parking lot, Dees drove around to the front of the courthouse, and went into the sheriff's office. He told someone in the office that he needed the State Police to come there. (Tr. 235).
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 Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 972 (2006). 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 re Verett, 07 SH 105, M.R. 22567 (Sept. 17, 2008) (Hearing Bd. at 24).
In determining whether the burden of proof has been satisfied, the Hearing Panel has the responsibility of assessing the credibility and believability of the witnesses, weighing conflicting testimony, drawing reasonable inferences from the evidence, and making factual findings based upon all the evidence. In re Cutright, 233 Ill. 2d 474, 488, 910 N.E.2d 581, 585 (2009); In re Ring, 141 Ill. 2d 128, 138-39, 565 N.E.2d 983, 987 (1991). In assessing the evidence, 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, 233-24, 645 N.E.2d 906, 910 (1994); In re Holz, 125 Ill. 2d 546, 555, 533 N.E.2d 818, 821 (1989); In re Stephens, 08 SH 104, M.R. 23258 (Sept. 22, 2009) (Hearing Bd. at 14).
We also note that circumstantial evidence may be sufficient to support a finding of misconduct, Holz, 125 Ill. 2d at 555, 557, and that "intent and motive are rarely revealed in direct testimony, but rather must be inferred from conduct and the surrounding circumstances." In re D'Angelo, 126 Ill. 2d 45, 56-57, 533 N.E.2d 861, 866 (1988).
With the above principles in mind, and after carefully considering the testimony and exhibits, we make the findings set out below.
The charge of misconduct for committing the criminal offense of Aggravated Assault arises from the Respondent's conduct of pulling out a gun and pointing it at a process server, Christopher Dees, in the parking lot of the Union County Courthouse on March 19, 2008. A stipulated bench trial was held on June 20, 2011, at which the Respondent was found guilty of Aggravated Assault based upon the foregoing conduct. The transcript of the stipulated bench trial shows that the presiding judge expressly stated that the "Court is going to find that the Defendant is guilty of the offense of Aggravated Assault." (Adm. Ex. 2 at 18). The judge went on impose a 12-month period of supervision, ordered the Respondent to pay a fine of $1,500 plus fees and costs, and ordered the forfeiture of the Respondent's Kel-Tec .380 pistol. If the Respondent successfully completes the period of suspension, the charges will be dismissed. (Adm. Exs. 20-21).
A finding of guilty is not inconsistent with the disposition of supervision. See People v. Sheehan, 168 Ill. 2d 298, 308-309, 659 N.E.2d 1339, 1343-44 (1995); People v. Pendleton, 264 Ill. App. 3d 918, 919, 637 N.E.2d 1124, 1125 (1994). In Pendleton, for example, the defendant specifically argued that "a finding of guilt is inconsistent with a disposition of supervision." The Appellate Court rejected the defendant's contentions, stating that they "present a
misunderstanding of the nature of supervision." The Appellate Court went to say that the supervision statute (730 ILCS 5/5-6-1):
provides that a finding of guilt is an appropriate precursor to supervision, as are guilty pleas and stipulations by defendant to the factual basis supporting the charge.
Defendant further argues that a finding of guilt is incompatible with dismissal of charges. However, the consequence of successful completion of supervision is dismissal of the charges against defendant. Accordingly, there is no judgment of guilt entered against defendant. Defendant's arguments present a misunderstanding of the difference between a finding and a judgment. A finding of guilt is not a final judgment until sentence has been entered.
In In re Patt, 81 Ill. 2d 447, 410 N.E.2d 870 (1980), the respondent, an Illinois attorney, was convicted of the offense of "embezzlement" and sentenced to a 1-year term of probation in the State of Nevada. Pursuant to Nevada law, after the respondent successfully completed his probation, "the sentencing court entered an order changing the finding of guilty to not guilty and dismissing the information." Patt, 81 Ill. 2d at 449. In the Illinois disciplinary proceeding, the respondent argued that the Nevada conviction may not be used to impose discipline because "there is no longer a valid conviction." Our Supreme Court rejected the respondent's argument, stating:
That respondent's conviction was later vacated and the charge dismissed pursuant to a statutory provision pertaining to probation does not alter the fact that there has been an adjudication which finally determined that respondent committed an act of embezzlement . . . The Nevada conviction for embezzlement conclusively establishes grounds for disciplining respondent, and there remains only the determination of the extent of discipline appropriate to the facts in this case. Patt, 81 Ill. 2d at 452
We also note that in In re Knuckey, 08 SH 36, M.R. 22794 (Jan. 20, 2009), two counts of misconduct (Counts II and III) were based upon the respondent's commission of criminal offenses, driving under the influence of alcohol, on two separate occasions. The evidence was that he had entered guilty pleas to the offenses and was placed on supervision. The foregoing
facts were found to be "conclusive evidence" of the respondent's guilt, and established that he committed a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. Knuckey, 08 SH 36 (Hearing Bd. at 3-6). See also In re O'Conner, 91 CH 632, M.R. 1004 (May 19, 1994) (respondent was found guilty of unlawful use of weapons and placed on supervision); In re O'Malley, 05 CH 18, M.R. 20582 (Jan. 13, 2006) (on one of the criminal charges the respondent was found guilty, he received a term of supervision).
Thus, the evidence clearly and convincingly established that the Respondent committed the criminal act of Aggravated Assault.
A respondent in a disciplinary proceeding is permitted, for the purpose of showing mitigation, to present evidence of the circumstances surrounding the crime. However, a respondent is not allowed to impeach the factual allegations of the charge, or challenge or relitigate the finding of guilty. See In re Ciardelli, 118 Ill. 2d 233, 239-40, 514 N.E.2d 1006, 1009 (1987); In re Scott, 98 Ill. 2d 9, 16-17, 455 N.E.2d 81, 84-85 (1983).
The Respondent's testimony in this case went far beyond showing mitigating circumstances, rather he sought to show that he was not guilty of Aggravated Assault. For example, he claimed he pulled out his gun because he reasonably feared for his own safety, and that he was "justified" in doing so. (Tr. 136, 146, 255). He also asserted that the testimony to which he stipulated (essentially that of Christopher Dees) at his bench trial, and upon which the finding of guilty was based, is false. (Tr. 28-29, 32). In closing argument, it was the Respondent's position that he is "being penalized for believing that his life was in jeopardy [and] that he had a valid reason to be scared." (Tr. 264, 266).
Nevertheless, in this case, we did not find the Respondent to be a credible witness and did not believe his testimony regarding the incident with Christopher Dees. On the other hand, we found the testimony of Mr. Dees, Special Agent Parks, Special Agent Farthing, and Danny Holdman to be credible and accurate.
In summary, we find that the Respondent committed the criminal offense of Aggravated Assault in the parking lot of the Union County Courthouse on March 19, 2008, in that the Respondent, without justification, knowingly drew and pointed a loaded handgun, a deadly weapon, at Christopher Dees, a process server, thereby placing Mr. Dees in reasonable apprehension of receiving a battery. We also find that, before the Respondent drew his handgun, he knew or had a strong suspicion that Mr. Dees was a process server who was attempting to serve summons on the Respondent, as the Respondent knew Dees had attempted to do on the previous day at both the Respondent's office and home. We further find that, at the time the Respondent drew his handgun, the Respondent did not believe that Mr. Dees posed a threat to his safety, and the Respondent did not draw his handgun for the purpose of protecting himself from physical harm.
It is also clear that the Respondent's commission of the Aggravated Assault reflects adversely on his fitness as a lawyer. Prior disciplinary cases have established that an attorney's commission of a criminal act, even if it does not involve moral turpitude, constitutes misconduct that adversely reflects on his or her "fitness as a lawyer," in violation of Rule 8.4(a)(3) of the Rules of Professional Conduct, and "tends to" bring the legal profession into disrepute, in violation of Supreme Court Rule 771 (now 770). See In re Scarnavack, 108 Ill. 2d 456, 457, 459, 485 N.E.2d 1, 2 (1985) (unlawful possession of .46 grams of cocaine); In re Dempsey, 94 CH 454, M.R. 11064 (May 26, 1995) (DUI); In re Sorokas, 98 CH 85, M.R. 16071 (Sept. 29,
1999) (battery and telephone harassment); In re Reed, 97 CH 54, M.R. 14844 (May 27, 1998) (aggravated battery); In re Jorgensen, 99 CH 109, M.R. 16996 (Nov. 22, 2000) (battery); In re Lutz, 01 CH 40, M.R. 17955 (Mar. 22, 2002) (resisting arrest); In re Mateas, 00 CH 81, M.R. 18636 (Mar. 19, 2003) (attempted possession of child pornography); In re Schickedanz, 01 SH 108, M.R. 18725 (May 22, 2003) (DUI); In re Karraker, 05 SH 41, M.R. 21231 (Jan. 12, 2007) (domestic battery against his wife and aggravated assault against a police officer). As explained in Dempsey:
Respondent's DUI conviction demonstrates his disrespect for the laws of this State and adversely reflects upon his fitness as a lawyer . . . Thus, the Respondent's criminal conviction constitutes a violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct. Furthermore, criminal conduct by an attorney diminishes the public's confidence in the entire legal profession and therefore, the Panel finds that the Respondent's criminal conduct tends to bring the legal profession into disrepute, in violation of Supreme Court Rule 771 [now770].
Dempsey, 94 CH 454 (Hearing Bd. at 8-9).
Furthermore, at the time the Respondent committed the Aggravated Assault, he was the State's Attorney of Union County. Consequently, his criminal conduct not only "violated his oath of office as a lawyer," but was also in "complete contravention of his responsibility as State's Attorney to enforce the law." In re Crisel, 101 Ill. 2d 332, 343-44, 461 N.E.2d 994, 998-99 (1984). We have no doubt that the Respondent's commission of a crime while he was State's Attorney is prejudicial to the administration of justice. See In re Sims, 144 Ill. 2d 323, 324-25, 579 N.E.2d 865, 866 (1991) (the respondent engaged in conduct prejudicial to the administration of justice by possessing and using cannabis and cocaine while he was a state's attorney); In re Edwards, 07 CH 129, M.R. 22619 (Nov. 18, 2008) (the respondent engaged in conduct prejudicial to the administration of justice by possessing methamphetamine while he was an assistant state's attorney); In re Mills, 07 SH 2, M.R. 23070 (May 18, 2009) (the respondent
engaged in conduct prejudicial to the administration of justice by purchasing and possessing cocaine and cannabis while he was an assistant state's attorney).
Additionally, the Respondent engaged in the misconduct while attempting to prevent the service of process for a judicial proceeding. In Karraker, 05 SH 41, the respondent engaged in conduct prejudicial to the administration of justice by committing an Aggravated Assault against a police officer. The respondent "by moving toward [the officer] in a threatening manner, struggling with him, and resisting him, interfered with a police officer who was lawfully carrying out his official duties." Karraker, 05 SH 41 (Hearing Bd. at 15-16). In Lutz, 01 CH 40, the attorney engaged in conduct prejudicial to the administration of justice where he struggled with and resisted police officers who came to his home in regard to a domestic dispute. (Petition to Impose Discipline on Consent at 2). In O'Malley, 05 CH 18, the attorney engaged in conduct prejudicial to the administration of justice where he was found guilty of speeding, failure to carry a driver's license, fleeing or attempting to elude a police officer, and resisting arrest. (Petition to Impose Discipline on Consent at 3). Similarly, in this case, the Respondent engaged in conduct prejudicial to the administration of justice by attempting to prevent the lawful service of process by a process server.
Based upon the foregoing, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in the Complaint: (a) committed a criminal act, Aggravated Assault, that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct (1990); (b) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and (c) 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.
We also find that the charge of dishonesty, in violation of Rule 8.4(a)(4) was not proved.
The purpose of the attorney disciplinary system is not to punish the attorney for his or her misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Cutright, 233 Ill. 2d 474, 491, 910 N.E.2d 581, 590 (2009). In determining the appropriate sanction, we must consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). 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); Gorecki, 208 Ill. 2d at 361.
Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 1135 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473, 479 (1994).
In this case, the Administrator requested the sanction of suspension from the practice of law for at least six months. (Tr. 263). The Respondent urged that the sanction, if any, should be a reprimand, and nothing more than a suspension for 30 days. (Tr. 267).
The Respondent's misconduct was based upon his commission of a criminal act, Aggravated Assault. Whenever an attorney violates a criminal law, it is a serious matter. The Supreme Court has stated:
Every lawyer owes a solemn duty to encourage respect for the law. We believe obedience to the law exemplifies respect for it. The respondent's conduct does not evidence such respect.
An attorney is held to a higher standard of conduct, particularly with respect to upholding the law, so that a conviction for such a criminal offense as in the present case [possession of 0.46 grams of cocaine] requires disciplinary action in order to protect the public, the courts, and the legal profession. In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1, 2-3 (1985).
Similarly, in In re Guy, 99 SH 91, M.R. 17401 (Mar. 23, 2001) (Hearing Bd. at 25) the Hearing Board stated:
criminal conduct by an attorney diminishes the public confidence in the entire legal profession and … tends to bring the legal profession into disrepute.
The Respondent's misconduct was aggravated by the fact that he was the State's Attorney of Union County when he committed the criminal offense. As the chief law enforcement official of Union County, it was the Respondent's responsibility to enforce the law. By violating the law, he "violated his oath of office as a lawyer and more specifically as State's Attorney." In re Crisel, 101 Ill. 2d 332, 343-44, 461 N.E.2d 994, 999 (1984). See also In re Finks, 2010PR00168, M.R. 25048 (Jan. 13, 2012) (Petition to Impose Discipline on Consent at 7); In re Finney, 04 SH 6, M.R. 20365 (Nov. 22, 2005) (Hearing Bd. at 14).
Also in aggravation, the Respondent interfered with a process server's performance of his lawful duty. See In re Karraker, 05 SH 41, M.R. 21231 (Jan. 12, 2007) (attorney's Aggravated Assault against police officer interfered with the officer carrying out his official duties) (Hearing Bd. at 16, 21-22); In re Lutz, 01 CH 40, M.R. 17955 (Mar. 22, 2002) (attorney struggled with
and resisted police officers who came to his home in regard to a domestic dispute) (Petition to Impose Discipline on Consent at 2).
The Respondent's misconduct is further aggravated by the fact that he was not candid and truthful in his testimony at the hearing in this matter. As discussed in our findings, we found that the Respondent's testimony about the incident in the parking lot of the courthouse with Mr. Dees, the process server, was unbelievable and false. In Gorecki, 208 Ill. 2d at 366, the Supreme Court stated that "a lack of candor before the Hearing Board is a factor that may be considered in aggravation."
Finally, in aggravation, the Respondent did not show any remorse for his misconduct or the adverse affect it has on the administration of justice and the legal profession. (Tr. 146-48). In fact, he sought to blame Mr. Dees for putting him in the "situation" or "position" where the criminal offense was committed. However, the reason Dees sought to serve summons on the Respondent in the courthouse parking lot at about 7:30 a.m., was because the Respondent refused to accept service at his office the day before. Mr. Dees also attempted to serve summons at the Respondent's residence the day before. However, the Respondent's wife did not answer the door when Dees knocked, after the Respondent had telephoned her and told her not answer the door to the process server. Later in the evening, after the Respondent had returned home, Dees again attempted to serve summons, but the Respondent chose not to answer the door when Dees knocked. Thus, the Respondent failed to accept responsibility for his misconduct. See In re Samuels, 126 Ill. 2d 509, 531, 535 N.E.2d 808, 817 (1989); In re Barry, 00 SH 54, M.R. 18782 (Sept. 19, 2003) (Review Bd. at 16).
There is also mitigation in this case. The Respondent has practiced law since 1997, and has not been previously disciplined. Also, the Respondent's misconduct arose out of a single
incident, and did not cause any financial or physical harm. Additionally, several character witnesses testified favorably regarding the Respondent. There was also evidence of pro bono work by the Respondent, and of his church and other volunteer activities.
We have not found any disciplinary case involving misconduct and overall circumstances similar to those in this case. However, we found the following cases to be instructive as to the appropriate sanction in this case.
In In re Sims, 144 Ill. 2d 323, 579 N.E.2d 865 (1991), the respondent "while he was State's Attorney of Perry County, purchased and used cannabis and cocaine over a several year period." Character witnesses testified that "Sims' problems are behind him and that he is currently doing just fine." The misconduct in Sims was more egregious than that in the case before us because Sims' misconduct was not an isolated incident, but "involved a flaunting of the law by a prosecuting attorney over a several year period." The Supreme Court stated that "we have to conclude that any sanction less than the two-year suspension recommended by the hearing board would denigrate the seriousness of his conduct and would erode public trust in the accountability of its elected officials." Sims was suspended for 2 years. Sims, 144 Ill. 2d at 324-25.
In Crisel, 101 Ill. 2d 332, the respondent was the State's Attorney of Edwards County when "he fired his shotgun twice into his automobile." He then falsely reported to the sheriff that he had been shot at by unknown persons. He did not tell investigating officers the truth about the incident until about four months later. Crisel pleaded guilty to disorderly conduct for knowingly transmitting a false report of a crime to the police. He was placed on supervision, completed the term of supervision, and the charge against him was then dismissed. Crisel,101 Ill. 2d at 336-38, 342-44. Crisel was suffering from "depressive neurosis" and "impaired
judgment at the time he fired the shots and fabricated the explanation." A "number of" character witnesses testified on behalf of the Respondent. The Supreme Court stated that Crisel was "the ranking law-enforcement officer of Edwards County, engaged in a purposeful and extended pattern of misrepresentation which necessitated a needless four-month investigation by State and local officials." The Court went on say that it "would not hesitate in imposing a substantial period of suspension if the evidence of psychological impairment had not been introduced." The Court imposed a suspension of 3 years, stayed by a 3-year term of probation, which required the respondent to "adhere to a specific program of psychological treatment." Crisel 101 Ill. 2d at 336-38, 342-44. The misconduct in Crisel was more egregious than the misconduct in the case before us because it involved dishonesty, and the dishonesty continued for about four months during which law enforcement officials wasted time in investigating the false report. However, unlike in Crisel, the misconduct in the case before us is not mitigated by any psychological impairment.
In Scarnavack, 108 Ill. 2d at 457, 459, 461, the respondent was convicted in federal court of unlawfully possessing .46 grams of cocaine, which had a street value of about $35 to $40. The respondent was not a state's attorney, but had been an assistant state's attorney a few years earlier. A censure was imposed. As in the case before us, Scarnavack's misconduct consisted of a single incident, he had no prior discipline, and several character witnesses testified on his behalf. However, unlike in the case before us, Scarnavack was not a state's attorney at the time of his crime; his "lapse of judgment" was caused by "marital difficulties;" he demonstrated that he "understood his conduct was wrong;" he "stated that he regretted the impact his misconduct had on the legal profession;" and "throughout his hearing the respondent displayed regret and
apologized for embarrassing his colleagues." Thus, in Scarnavack, there was much less aggravation and much more mitigation than in the case before us.
In In re Kakac, 07 SH 86, M.R. 23785 (May 18, 2010), the respondent was the State's Attorney of Wayne County and his misconduct arose during the prosecution of a criminal case. Kakac failed to disclose to defense counsel that a State witness, Asher, had previously entered into a plea agreement with Kakac's office and the terms of the agreement. During a hearing on the admissibility of Asher's prior convictions, Kakac misstated the nature of one of the convictions. During the trial, Asher testified that he had not been offered anything in exchange for his testimony. Kakac should have known the testimony was false, but did not correct Asher's false testimony. Finally, in closing argument, Kakac falsely stated that Asher had not been promised or offered anything in return for his testimony. Kakac, 07 SH 86 (Review Bd. at 2, 12-13). The Hearing Board found, and the Review Board affirmed, that, as to most of the misconduct, Kakac "acted unintentionally or without any intent to deceive." The Review Board stated that the "Hearing Board's findings as to the prosecutor's intent is a vital consideration in determining the discipline to recommend." In regard to the closing argument, "Kakac knowingly made affirmative false representations during his argument to the jury." Thus, the comments in closing argument were "the most serious misconduct here." Id. (Review Bd. at 18). The Review Board said that the "need for deterrence and the seriousness of Kakac's misconduct warrant a suspension." Id. (Review Bd. at 19). The Review Board then discussed the "extensive mitigating evidence." As in the case before us, the misconduct by Kakac was a "single incident in an unblemished career otherwise characterized by integrity," and character witnesses testified that the misconduct "was not consistent with Kakac's usual prosecutorial behavior." However, unlike in the case before us, the "Hearing Board considered Kakac to be a generally credible
person" and found that he "was candid and cooperated in the disciplinary proceedings. Id. (Review Bd. at 20-21). Kakac was suspended for a period of 30 days.
In Finks, 2010PR00168, the respondent was the State's Attorney of Christian County and engaged in misconduct during his election campaign for a Circuit Court Judge vacancy. While circulating nominating petitions, Finks publicly announced that he was a candidate for Judge Coady's seat. However, the name of the seat or vacancy for which he was running was not on his nominating petitions, as required by the Election Code. After the petitions had been signed, Finks decided to run for another judicial vacancy, Judge Moran's seat. Finks or someone acting at his direction then inserted on the previously signed petitions that Finks was running for the Judge Moran's seat. Some of the signers of the petitions "would not have signed the petitions had they known that [Finks] was seeking the nomination for the Judge Moran seat, rather than the Judge Coady seat." Additionally, in violation of county ordinances, Finks and his personal secretary performed work in the State's Attorney's office that related to Finks' judicial campaign. For example, they used county equipment, prepared and disbursed a press release, typed information on nominating petitions, made telephone calls, and the secretary notarized circulators' signatures. (Petition to Impose Discipline on Consent at 2-4). Finks withdrew from the judicial election one week after submitting the nominating petitions. As in the case before us, Finks had not been previously disciplined and character witnesses would testify as to Finks' positive contributions to the community and his excellent reputation for truth and veracity. However, unlike in the case before us, Finks "continually acknowledged [his]wrongdoing," "expressed remorse for his actions," and "has been candid in admitting wrongdoing." (Petition to Impose Discipline on Consent at 5-7). Finks was suspended for a period of 60 days.
Finally, in In re Karraker, 05 SH 41, M.R. 21231 (Jan. 12, 2007), the respondent, who was not a prosecutor, committed a Domestic Battery on his wife and, during the same incident, committed an Aggravated Assault while resisting a police officer who came to the scene. The Hearing Board noted that there was "substantial mitigation." As in the case before us, Karraker's misconduct occurred in a single incident; he had not been previously disciplined; and character witnesses testified on his behalf. However, unlike in the case before us, Karraker "had a series of health and other personal problems that led him to begin drinking alcohol again… after having abstained for about 20 years;" his misconduct "was the direct result of his abuse of alcohol;" he "understands the seriousness of his misconduct, accepted responsibility for it, and expressed remorse;" and "admitted the misconduct in this proceeding." It was also pointed out that Karraker "apologized to the police officer on the day after the misconduct was committed." Karraker, 05 SH 41 (Hearing Bd. at 20-21). Karraker was suspended for six months, with the suspension stayed entirely by a 2-year period of probation. The conditions of probation required him to abstain from alcohol use and to comply with a course of alcohol treatment. Karraker, M.R. 21231.
After considering the cases discussed above, the nature of the Respondent's misconduct, the mitigation, the significant aggravation- particularly the Respondent's lack of candor and lack of remorse, along with the purpose of the attorney disciplinary system, we conclude that a suspension is appropriate in this matter. We believe that a suspension of 60 days is adequate for the public to have confidence that criminal conduct by a State's Attorney is unacceptable and will not be tolerated, and to serve as a deterrent. We further believe that any lesser sanction would "denigrate the seriousness of [the Respondent's] conduct and would erode public trust in the accountability of its elected officials." Sims, 144 Ill. 2d at 325.
Therefore, we recommend that the Respondent, Allen W. James, be suspended from the practice of law for a period of sixty (60) days.
Date Entered: February 3, 2012
|Leo H. Konzen, Chair, with Randall B. Rosenbaum, and Richard Corkery, Hearing Panel Members.|