Filed November 16, 2010
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
SCOTT ANDREW WINEBERG,
Commission No. 09 CH 115
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on June 24, 2010, at the Chicago, Illinois offices of the Attorney Registration and Disciplinary Commission ("ARDC" or "Commission"), before a Hearing Board Panel of Kenn Brotman, Chair, Henry P. Wolff, and Frances D. McConnell Williams. The Administrator was represented by Scott Kozlov. Respondent appeared in person and was represented by Warren Lupel.
On October 15, 2009, the Administrator filed a three-count Complaint against Respondent pursuant to Illinois Supreme Court Rule 753(b). Counts I and II are based on allegations that Respondent, who was working as an assistant public defender, misrepresented himself on two separate occasions as being with the State's Attorney Office. Count III, which arose out of the same proceeding at issue in Count II, charged Respondent with misconduct based on his alleged unauthorized copying of discovery materials belonging to another attorney that were inadvertently left on a copy machine.
Respondent filed an answer in which he admitted some of the factual allegations, denied many of the allegations, and denied all of the charges of misconduct.
The Administrator presented the testimony of Catherine Vazquez, Joy Gossman, Katherine Gordon, Lisa LeBoeff Javinski, Obeckyo Quinn, and Respondent as an adverse witness, and introduced documentary Exhibits 1, 2, and 4, which were admitted into evidence. Respondent testified on his own behalf, presented the testimony of Bartlett J. Carroll, Jr., and Susan Klausing, and introduced documentary exhibits 1(A), 1(B), 1(C), and 2, which were admitted into evidence. The parties also entered into a stipulation with respect to the testimony of an additional witness, Barbara Hayward.
Respondent is 43 years old and was licensed to practice law in Illinois in 1992. (Tr. 25, 231). He is the father of twin girls who are 14 years old. (Tr. 235). Although he is currently in private practice, from 1992 until April of 2009, he worked exclusively as an assistant public defender in Lake County, Illinois. (Tr. 24-25). He started out in the traffic and misdemeanor divisions and later took on a felony caseload when he was promoted to senior assistant public defender. (Tr. 25). In 1996, he requested and was granted a transfer to the Juvenile Division where he worked for several years before returning to a felony courtroom in 1998. (Tr. 25-26). Respondent ran the Felony Division until 2004, when he was promoted to supervisor of the Juvenile Division. As supervisor Respondent's responsibilities included overseeing day-to-day office operations, ensuring that courtrooms were staffed, and assigning cases. (Tr. 26). He also carried his own caseload. (Tr. 27). Respondent remained in that position until shortly before he left the public defender's office in April of 2009. (Tr. 26).
Catherine Vazquez has been employed for five years as a 911 dispatcher with the Island Lake Police Department ("ILPD"). Her responsibilities include answering 911 calls and working the front desk. (Tr. 68). Ms. Vazquez is a civilian employee and is not a sworn police officer. (Tr. 75).
Ms. Vazquez was working at the front desk on the evening of June 8, 2007, when Respondent came into the lobby of the police station at around 8:00 p.m. (Tr. 68-70). She had never previously met Respondent or had any other contact with him. (Tr. 74-75). The lobby is approximately four feet deep by fifteen to twenty feet wide and the front door is about four feet from where Ms. Vazquez was stationed. (Tr. 70, 78-79). There are no video cameras in the lobby of the building. (Tr. 79). Although there are cameras on the outside of the building, they do not work. (Tr. 79-80).
When Respondent came into the station he was dressed casually in shorts and a T-shirt. (Tr. 68-70). Ms. Vazquez said to Respondent, "How can I help you?" Respondent replied that he was "with the State's Attorney's Office" and then started asking questions about the station's video cameras and surveillance. (Tr. 70, 81). Ms. Vazquez testified that she is sure that Respondent said that he was with the State's Attorney's Office and that he did not tell her he was with the Lake County Public Defender's Office. (Tr. 70-71). Respondent did not show her any credentials and Ms. Vazquez did not ask for any because she "took his word." (Tr. 71).
Ms. Vazquez testified that Respondent spoke very quickly when inquiring about the video cameras and whether they were working. (Tr. 81). She told him that the cameras did not work and did not record. (Tr. 82). Ms. Vasquez also recalled that Respondent inquired about a
rape case that the department was working on. She told him that she was not working on the case and had no idea what he was talking about. (Tr. 71). Respondent then left the station. (Tr. 82). The encounter lasted a total of five to seven minutes. Ms. Vazquez does not recall either of them saying anything else. (Tr. 71-72, 82).
Ms. Vazquez did not initially recall Respondent asking anything about a particular police officer. (Tr. 82). After reviewing her written report on the incident, she remembered that he also asked if Officer Schmoeller was working. (Tr. 83-84). Ms. Vazquez said that she did not make a connection between Respondent's questions about the rape case and his request to see this officer. Respondent told her that he was not going to wait around for four hours to see Officer Schmoeller. (Tr. 83).
After Respondent left, Ms. Vazquez asked Officer Nikopoulos to take down the license plate number of the vehicle that he got into. (Tr. 72). She said that she did this because something did not "seem right," given the time of day and the way that Respondent was dressed. (Tr. 72). She said that it is unusual for a professional to come into the station at that time of night and she did not think that it made sense that an attorney would be dressed this way. (Tr. 76). Although she trusted Respondent when he said he was a state's attorney and did not ask to see his credentials, she was also suspicious of him due to these other factors. (Tr. 76-78).
After they ran a check of his license plate and obtained his driver's license, Officer Nikopoulos called the Lake County State's Attorney's Office. (Tr. 72). Ms. Vazquez later learned that Respondent was a public defender and was not with the State's Attorney's Office. She did not know whether a public defender was an attorney. (Tr. 77-78).
On June 9, 2007, Ms. Vazquez wrote a one-page report to the Chief of Police of the ILPD which recounted various details regarding the incident. The report indicated that when the male
subject approached the dispatch window he stated he was "with the state's attorney's office." (Tr. 73; Adm. Ex. 1). On September 19, 2007, Ms. Vazquez participated in a photo lineup and identified Respondent as the individual who was the subject of the incident in the lobby on June 8, 2007. (Tr. 73; Adm. Ex. 2).
Ms. Vazquez testified that it is very unusual in her experience for a state's attorney, public defender, or any other attorney to come into the station. If this occurs, she is supposed to call in an officer to handle it. (Tr. 85). The fact that she thought Respondent was a state's attorney did not impact in any way her response to his questions. (Tr. 86).
On May 14, 2007, Respondent was assigned to handle a delinquency case on behalf of a minor known as Bradley C. (Tr. 27-28, 235). Respondent's client was 16 years old at the time and was charged with criminal sexual assault after he reportedly walked into the ILPD one evening and confessed to the crime. (Tr. 28-29). Shortly after he was assigned the case, Respondent served a subpoena on the ILPD seeking copies of all "video and audio surveillance recordings of the lobby area, squad room, and holding rooms" during the time period that his client had allegedly confessed. (Tr. 28-29; Adm. Ex. 4). Respondent received a response from the ILPD that it had no such records. (Tr. 29). Respondent had concerns about the accuracy of this response because he found it unusual that there would be no video surveillance in a police station lobby. (Tr. 30).
On the evening of June 8, 2007, after he got off work, Respondent went to Island Lake to meet with his client, to view the scene where the alleged assault took place, and to speak with other possible witnesses regarding the matter. (Tr. 235-36). He was driving towards his home after completing these interviews when he decided to stop at the ILPD in order to confirm or
dispel his suspicions regarding the lack of video or audio recording equipment at the station. (Tr. 30-31, 236-37). Respondent was particularly interested in any surveillance of the area where the confession had allegedly taken place because he wanted information about his client's physical and mental condition at the time that might serve as a possible basis for having the confession suppressed. (Tr. 237-38).
Respondent had changed clothes before he left the office and was casually dressed in shorts and a t-shirt when he arrived at the police station. He believes that he had either the case file folder or a note pad in his hand. When he entered the station he observed Ms. Vazquez seated at the front desk behind a glass partition. (Tr. 31-32, 238). Respondent looked around the small lobby area and did not see any video cameras. (Tr. 31, 239). He then remarked aloud to himself something like, "There really are no cameras out here." At that point, Ms. Vazquez said to him, "Can I help you?" Respondent approached her and they had a conversation. (Tr. 240).
Respondent acknowledged that in his prior sworn statement he stated that he could not remember who initiated this conversation. He testified that he has since gone over it in his mind many times and now recalls that the conversation was initiated by Ms. Vazquez. (Tr. 32-34).
Respondent does not recall his exact words and is not certain what he said next. He testified that, "I either said, I am with the Public Defender's Office; I am with the PD's Office, or I am the attorney for this kid who claims—who came in here claiming to have raped his best friend." (Tr. 240). Respondent does not remember what else he said, but he recalls asking Ms. Vasquez if she had been on duty when his client came to the police station and confessed. (Tr. 34). She told him that she was not. (Tr. 241). He also asked if Officer Schmoeller, the arresting officer, was around and Ms. Vazquez told him that he worked the midnight shift. Respondent told her that he was not going to wait around that long. (Tr. 241-42). They might also have had
some conversation about whether there were cameras in the booking area, but he is not certain of this. Respondent stated that he was in the station a total of about three minutes. (Tr. 242).
Respondent testified that although he is not certain about what he said, he can "positively say" that he did not tell Ms. Vasquez that he was from the State's Attorney's Office. (Tr. 34-35, 240). He also denied doing anything to lead her to believe that he worked with the State's Attorney's Office and denied even mentioning the State's Attorney's Office during their conversation. (Tr. 35-36). Respondent also denied that he thought it would be quicker for a state's attorney to get surveillance from the police department. While this might be true for paper discovery, in his experience it makes no difference with respect to audio or video surveillance who makes the request. (Tr. 36-37). Respondent also denied that he has ever had difficulty getting evidence from a police department pursuant to a subpoena. (Tr. 37). Although he could not recall a specific instance, he is sure that there have been times when the State's Attorney's Office has assisted him when he has had difficulty obtaining evidence. (Tr. 40-41).
Respondent testified that he did not know Ms. Vasquez prior to their encounter at the police station and has no reason to believe that she has any animosity towards him. He did not learn that she was suspicious of him until he received the complaint from the Commission. (Tr. 41, 242).
Counts II and III
Obeckyo Quinn has been employed as a child protection investigator with the Department of Children and Family Services ("DCFS") for two years. (Tr. 194). Prior to this, she spent four years as an assistant project director for a non-profit organization where she coordinated case management services. (Tr. 195). Before beginning to handle cases at DCFS,
Ms. Quinn had six weeks of full-time training which included classes designed to train her how to detect abuse and neglect, how to assess the safety of children and families, and how to interview and interact with different professionals in the course of her job. (Tr. 195-96).
In her current position, Ms. Quinn is responsible for investigating abuse and neglect cases that are assigned to her. This includes gathering evidence through interviews and obtaining information from other sources such as hospitals, police departments, and schools. (Tr. 197). She handles in excess of 800 cases per year, approximately 40 percent of which have court involvement. (Tr. 196). When one of her cases goes to court, she typically prepares information for the State's Attorney's Office related to the interviews that she has conducted and testifies in court. (Tr. 196-97).
On March 26, 2009, Ms. Quinn was assigned to handle the investigation of a matter involving a child named Jaden G. The case was initiated after Jaden G.'s sibling was hospitalized and in a coma due to an unexplained injury. (Tr. 197). In the first week of April, 2009, Ms. Quinn had telephone conversation with Respondent regarding this case. Ms. Quinn testified that Respondent telephoned her at her office and said that he was "Scott from the State's Attorney's Office." Ms. Quinn is "positive" that Respondent identified himself this way and it is not possible that he told her he was "Scott with the Public Defender's Office." (Tr. 198-99). Respondent did not tell her his last name during this conversation and she did not ask it because she had no reason to believe that he was anyone other than who he said he was. (Tr. 199). Ms. Quinn did not know Respondent prior to the Jaden G. matter. (Tr. 203).
At the time of Respondent's call, there was a motion pending in court in which Jaden G.'s father was seeking visitation. The father had not been allowed to see his children because he had not yet been ruled out as the perpetrator of a crime against the child. (Tr. 199-200). Ms.
Quinn testified that her conversation with Respondent concerned information that this motion was based upon which had been obtained from a physician at Children's Hospital. (Tr. 199). Respondent questioned her regarding the doctor who had provided the information. (Tr. 200). She told Respondent she had never heard of the doctor and did not know how the family's attorney obtained the information. She also mentioned that she had spoken to an expert. (Tr. 200). Ms. Quinn said that her conversation with Respondent lasted approximately 15 to 20 minutes. (Tr. 200-01).
Ms. Quinn learned that the person she had spoken with was actually Respondent when she received a fax the following day from the GAL, Barbara Hayward. The fax included a copy of an e-mail which had been sent by Respondent to Ms. LeBoeff, Ms. Gordon, and Ms. Hayward. Respondent stated in the e-mail that he had spoken with Ms. Quinn the previous day and did not understand why she did not know who Dr. Russell was. (Tr. 201, 213). He also stated that instead of asking for visitation for the father, he was going to ask that Jaden G. be returned to the custody of the parents. (Tr. 213). Respondent did not say anything in the e-mail about telling Ms. Quinn that he was from the State's Attorney's Office. Ms. Quinn said that she had no knowledge of having spoken with the parents' attorney until she looked at the e-mail and saw the name "Scott Wineberg" and realized that this is who she had spoken with the previous day. (Tr. 201, 212-15). Ms. Quinn was not suspicious about the call until she received the e-mail. Ms. Hayward did not indicate to Ms. Quinn why she sent her this e-mail. (Tr. 214-15).
The next day, after realizing what had occurred, Ms. Quinn told Ms. LeBoeff that Respondent had called her pretending to be from the State's Attorney's Office. She also told her that she realized that the person she had spoken with who identified himself as Scott from the State's Attorney's Office was in fact, Scott Wineberg, the parents' attorney. (Tr. 202).
Ms. Quinn testified that she would not have spoken with Respondent if he had told her that he was the attorney for Jaden G.'s parents. (Tr. 203). When attorneys call DCFS with questions, they are usually referred to a supervisor who may have to confer with the legal department. She is not required to speak to parents' attorneys as part of her duties as an investigator and she does not typically speak with them with regard to any court matter. (Tr. 203, 209). There is no specific rule in the office that prohibits her from talking to parents' attorneys, but if her supervisor tells her to defer to her that is what she does. (Tr. 210).
Ms. Quinn denied that she told Ms. LeBoeff that Respondent identified himself by his full name at the end of their conversation. (Tr. 205). She testified that she does not know who Scott Turk is and that she did not tell Ms. LeBoeff that she thought that Respondent was Scott Turk. (Tr. 206).
On April 8, 2009, at some time prior to 5:00 p.m., Ms. Hayward received from Ms. LeBoeff three pages of medical records relating to the hospitalization of Jaden G.'s brother. Ms. Hayward placed the documents on the copy machine in the Public Defender's Office, prepared copies (which she removed from the copier), and inadvertently left the original documents on the copier. (Tr. 4-5; Complaint par. 16).
Katherine Gordon is an attorney, licensed since 1996, who has been employed at the Lake County Public Defender's Office since 2007. She is one of two attorneys in the office who serves as a Guardian Ad Litem (GAL), an attorney who represents the best interests of children in abuse and neglect cases. (Tr. 134-35). When an abuse and neglect petition is filed, she is automatically appointed as the child's attorney and GAL, and she represents that child
throughout the proceeding. (Tr. 135). Ms. Gordon previously worked for the Cook County Public Guardian's Office, which is a separate office that encompasses all GAL attorneys in Cook County. (Tr. 134). There is no separate office in Lake County and these same responsibilities are handled by the Lake County Public Defender's Office. (Tr. 135).
Ms. Gordon works out of the Public Defender's offices in Vernon Hills where there are five other full time attorneys. Two of them work as GAL attorneys in abuse and neglect cases and the others represent the parents in those same matters and handle delinquency cases. (Tr. 135-36). After an abuse and neglect case is initiated by the State, the Public Defender is appointed to represent the child and a GAL would represent the child on the Public Defender's behalf. If the parents are indigent, the Public Defender's Office is also appointed to represent the parents and one of the other attorneys in the office would handle the matter. (Tr. 136). Quite often, the Lake County Public Defender's Office is appointed to represent both the parents and the child in such matters. (Tr. 137).
At the Vernon Hills office, the public defenders that represent parents and the GAL attorneys do not have separate offices. Each attorney has his or her own cubicle which is surrounded by partial walls that do not go all the way to the ceiling. They all share the same copier. (Tr. 137). Each of the attorneys maintains client files on their own cases and stores them in their own file cabinets. (Tr. 137-38). At the time of the incident in the Jaden G. case, these file cabinets were located outside of the attorneys' cubicles. (Tr. 154-57).
The office has a policy in these cases that the GAL attorneys and the attorneys for the parents do not share information and are never allowed to access each other's files. (Tr. 138). Ms. Gordon testified that this would be no different than an attorney going into the state's attorney's file or another private attorney's file in a case. (Tr. 139). Although there is no
specific training with regard to this policy, Ms. Gordon was told about the conflict and was assigned a different supervisor from the parents' attorneys. (Tr. 138). Ms. Gordon has no reason to believe that Respondent ever went into her file cabinet or her files. (Tr. 157).
Ms. Gordon was assigned to represent the minor in the Jaden G. matter. (Tr. 139). This was a physical abuse case against the father based on injures to a sibling which originally came into the office in late March of 2009. It was initially assigned to Barbara Hayward, the other GAL who works out of the other courtroom. Ms. Hayward had a conflict so Ms. Gordon took over the matter. This occurred around April 9, 2009, although she received the file the day before. (Tr. 139-40, 160).
Ms. Gordon testified that it was Ms. Hayward, not her, that left the documents at issue on the copier. (Tr. 160-61). She believes that Ms. Hayward had received the documents from the State earlier that afternoon and was passing them along to her. She does not know why Ms. Hayward was making copies of the documents rather than just giving them to her. (Tr. 160-62). Ms. Hayward handed her the copies the day before the hearing, before she left the office for the day, and Ms. Gordon put them in the file and left it on her desk. She did not review them that night. (Tr. 162). Ms. Gordon was in the office until about 5:00 or 5:15 p.m. that day and Respondent never approached her about the documents he found on the copier. (Tr. 147). Respondent also had her cell phone number, but she did not receive any messages from him regarding the matter. (Tr. 147-48).
On April 9, 2009, the next day, the matter was scheduled to be heard before The Honorable Nancy S. Waites on a motion to vacate temporary custody filed by Respondent. (Tr. 140-41). Ms. Gordon arrived at the office at 7:30 a.m. that morning and later went to court for the hearing at 9:00 a.m. (Tr. 141, 165). Ms. Gordon reviewed the medical records that she had
received the previous evening before she went to court. (Tr. 165). At the hearing, there was initially some argument between Respondent and the State regarding discovery. The parties were then called back into the judge's chambers where the discussion continued. The State requested that certain discovery be reviewed in camera and tendered it to the judge. (Tr. 142-43). At that time, Respondent yelled out, "Why don't you just call the ARDC?" Respondent did not explain his remark. After some additional discussion regarding discovery, Respondent remarked that he did not need the discovery anyway because he had gotten it off the copier. Ms. Gordon said that she did not initially know what Respondent was talking about. (Tr. 143).
After the incident in chambers, Ms. Gordon was quite concerned and approached Respondent in the office to talk to him about the incident involving the documents. (Tr. 148-49) She asked him where he had gotten the documents and he told her he had gotten them off of their copier. (Tr. 149). She told him that she did not think this was okay, that these were not his documents to take, and that he should not have just taken them off the copier. (Tr. 149). Respondent pointed out that the documents were discoverable and insisted that what he had done was okay. He told her that he did not have a problem with it and that he would do the same thing again. He also suggested to her that if she had a problem, she should call the ARDC. Ms. Gordon told Respondent that in light of his attitude and his statement that he would do the same thing again, she felt the need to notify Ms. Gossman and her immediate supervisor, Kelli Politte. (Tr. 149-50). As she continued to express her concerns about the office set-up and the need to share equipment, Respondent said, "Shame on me." At this point, Ms. Gordon decided that the conversation was going nowhere so she walked away. (Tr. 150).
Later that same afternoon, Ms. Gordon sent an e-mail to Ms. Politte and subsequently met with both her and Ms. Gossman and told them what had occurred. (Tr. 152). She felt the
need to report the matter because Respondent's conduct was against policy and he indicated his intention to do it again. (Tr. 153). As a result of this incident, Ms. Gordon had to withdraw from the case and she believes that the child lost the benefit of a GAL who knows the system. (Tr. 153-54). Respondent never apologized to Ms. Gordon for taking the documents. Although she probably would have eventually turned the documents over to Respondent in discovery, she had not yet read them and needed to review their contents first. (Tr. 151).
Joy Gossman is an attorney who is currently the Public Defender for Lake County. (Tr. 86-87). She has worked in various positions in the Lake County Public Defender's office throughout her legal career, beginning when she was in law school in 1987. She was appointed to her current position in 2007. (Tr. 87).
The Lake County Public Defender has a main office in Waukegan, where Ms. Gossman's personal office is located. The Juvenile Division, which handles delinquency cases and abuse and neglect matters, has its offices in Vernon Hills. (Tr. 89). Since it is off-site, a supervisor is specifically assigned to the Juvenile Division, but Ms. Gossman is also responsible for supervising all of the attorneys and staff in the office. (Tr. 87-88). In addition to the supervisor, the office has two full time attorneys who work on delinquency matters and represent parents in abuse and neglect matters. There are also two full-time GAL attorneys who represent minors in abuse and neglect matters. (Tr. 89). Respondent was appointed supervisor of the Juvenile Division in 2003 and remained in that position until May of 2009, when Ms. Gossman terminated his employment. (Tr. 88).
Ms. Gossman explained that in abuse and neglect cases, the Public Defender's Office is appointed as GAL for the minors and also represents the parents if they are deemed to be
indigent. Although some counties have a separate Public Guardian's Office which represents minors in these matters, in Lake County the Public Defender's office is appointed to represent them both. (Tr. 89-90). Ms. Gossman stated that she has always believed that it is a conflict for both parties to be represented by the Public Defender's Office. (Tr. 90, 106). As a result, the office has tried to create a screen to avoid these conflicts and has separated the supervisory responsibilities over the attorneys serving in these different capacities. The Juvenile Division supervisor oversees the representation of the parents and Ms. Gossman's Deputy Chief, Kelli Politte, supervises the GAL representation. (Tr. 90-91). If there are any problems between the two supervisors, Ms. Gossman has the matter brought to her to resolve. (Tr. 91).
Ms. Gossman explained that the dual representation by the office has been allowed notwithstanding these problems because the Public Defender's Office is not deemed to be a law firm for conflict purposes. She noted several court decisions that have addressed issues related to this type of arrangement. While the courts have indicated that it is not an ideal situation, she said that they have not necessarily supported the public defenders in the position that there is an ethical problem with this practice. (Tr. 92). Ms. Gossman stated that the office continues the practice despite these problems because it is appointed and is ordered to do so. (Tr. 92-93).
The Vernon Hills offices were designed with this specific problem in mind and were set up in such a way as to try to keep these different types of attorneys separate. While there are no separate office suites, the space is roughly divided into thirds. The GAL attorneys and their files are at one end of the space and the delinquency and parent attorneys and their files are at the other end. The areas are separated by doors and the individual attorneys each have their own cubicles. (Tr. 93-94). Separate files are also kept for the parents and for the children and they are stored separately. When the cases are active, the files are either with the attorney in their
office or in the filing cabinet outside of their cubicle. (Tr. 94-95). Only the attorney handling the case, the Juvenile Division supervisor, and Ms. Gossman have access to the parents' files. Only the GAL attorney, the Deputy Chief Public Defender, and Ms. Gossman have access to the files of the children. (Tr. 95). All of the attorneys share one secretary, one copier, one fax machine, and one computer network. (Tr. 94; 107-08; Resp. Ex. 2).
Ms. Gossman testified that there is a policy in the office that prohibits attorneys from going into any other attorney's files. (Tr. 96). Although it is not in writing or the subject of any formal training, it is discussed "quite a bit" within the office. It also derives from the Rules of Professional Conduct, the applicable case law, and the manner in which the office is divided. (Tr. 96-97). She noted that the separation of information is important because it is necessary to protect each party's confidential information. For example, there may be information in a GAL attorney's file regarding a child's placement in a foster home that the parents are not allowed to access. (Tr. 97). One of the ways that the office ensures that the policy is being followed is through its placement of the supervisor who is responsible for overseeing the office. (Tr. 98). Ms. Gossman acknowledged that the issue in this case is Respondent's use of documents he found on the copier and there is no allegation that he went into the GAL attorney's file. (Tr. 112-13).
Ms. Gossman first learned of the situation involving Respondent removing documents from the copier on April 14, 2009, when she was contacted by Ms. Gordon and she met with her and Ms. Politte to discuss the situation. (Tr. 98-99). Respondent was the Juvenile Division supervisor at the time and his duties included supervision of the physical office itself as well as supervision of the delinquency and parent representation. (Tr. 99-100). Part of his responsibilities included maintaining the separation of information between the parents'
attorneys and the GAL attorneys. (Tr. 100). Ms. Gossman said that when she learned that Respondent had taken information belonging to a child's attorney she was "stunned." She was especially surprised because Respondent was a supervisor who had been in the office a long time and knew the importance of keeping confidentiality and maintaining the separation of information. (Tr. 100-01). She said that since the office only has one copy machine, the attorneys need to be able to use that machine. (Tr. 101). For an attorney to just take someone else's discovery from the copier without telling the other attorney is "just wrong." (Tr. 101). It did not matter that the information was something that Respondent might have obtained at a later point through discovery, because the materials had only been tendered to his adversary and not him. Respondent needed to obtain them through the court, which might determine that he was not entitled to them. (Tr. 101, 116-17).
Ms. Gossman testified that in a situation such as this involving inadvertent disclosure, the attorney should find out who the document belongs to and turn it over to that attorney or put it in their mailbox. The office has not conducted any training sessions, issued any memos, or posted any policy about what to do in this situation. Nor are there any rules or anything in writing regarding the conflicts that exist in the office as a result of the dual representation. (Tr. 117-118, 120-21). Ms. Gossman is not aware of any sanctions entered against Respondent as a result of this incident. (Tr. 126).
Ms. Gossman acknowledged that parents are typically allowed to see the medical records of their children, unless guardianship has been taken by DCFS. The child at issue here was in the hospital and was not in protective custody. (Tr. 119). She said that when Ms. Gordon told her about the situation, she told her it involved discovery and did not explain whose medical records were involved. (Tr. 120). Ms. Gossman does not know if the documents were
confidential and does not know if Respondent breached the client's confidentiality by his actions. (Tr. 115). There may be instances where all discovery is not produced to the parents' attorney because either the state or the GAL is awaiting a ruling from court. Ms. Gossman does not know whether that occurred in this case. (Tr. 128).
After learning of the situation, Ms. Gossman and Ms. Politte had a meeting with Respondent at her office in Waukegan. (Tr. 102). Respondent admitted to them that he had found the documents on the copy machine and had taken them without asking the GAL attorney's permission. (Tr. 102-03). He told her that he believed he was entitled to those documents because they were discovery and he needed them to prepare for the hearing the next day. Respondent did not express any remorse during the meeting and came off as "quite arrogant." He also told her that if he were given the opportunity, he would probably do it again. (Tr. 103).
At some point after this incident, Ms. Gossman consulted with some judges and others, including Judge Waites, about the matter. They discussed the propriety of Respondent's actions and what they would have done in the same situation. In her testimony at the hearing, Ms. Gossman said that she would not necessarily characterize these conversations as a "debate." She acknowledged that in her previous deposition she testified that there was "a healthy debate going back and forth" at this meeting regarding the matter. (Tr. 113-115).
On April 20, 2009, a pre-disciplinary hearing was conducted where Respondent was given an opportunity to more formally respond to the allegations. Respondent again admitted what he had done and stated that he did not think that it was wrong. (Tr. 103). He also indicated that he thought that it was mitigating that he used the information to help a client. Ms. Gossman subsequently took disciplinary action against Respondent, which included suspending him for
five days without pay, demoting him from his position as supervisor, reducing his pay, and transferring him to the Waukegan office. (Tr. 103-04). She also told him that he could no longer handle the Jaden G. case and that he was to have no access to that file. (Tr. 104).
Ms. Gossman subsequently learned from the new Juvenile Division supervisor that Respondent had come to the offices twice during the month of May and had accessed the Jaden G. file on at least one of these occasions and removed documents from it. (Tr. 104). She met again with Respondent and he did not deny this. He told her that he did not recall being told that he could not have access to the files. Ms. Gossman is not sure whether Respondent made copies or took originals from the file, but believes that some items may have been missing from the file as a result of his actions. (Tr. 110-11). As a result of this incident, Ms. Gossman presented Respondent with a letter for a pre-termination hearing, which took place on May 20, 2009, before the director of Human Resources for Lake County. Respondent appeared and did not deny that he took items out of the file. He also indicated that he wanted to be able to keep his job. On May 22, 2009, Ms. Gossman sent Respondent a letter informing him that he was being terminated for breach of his probation for going into the Jaden G. file. (Tr. 105).
Ms. Gossman subsequently wrote a letter to the ARDC about the matter. At the time, she did not know that her office did not represent the child whose medical records were at issue. (Tr. 123). She acknowledged that the "sole reason" she wrote the letter to the ARDC was her belief that Respondent had breached her client's confidentiality. (Tr. 123-24).
Ms. Gossman has not had any experience in this matter where Respondent was not honest with her with regard to these incidents. (Tr. 117). Nor is she aware of any attempt on Respondent's part to conceal the actions that he took on the evening of April 8, 2009. (Tr. 125).
Lisa LeBoeff Javinski
Lisa LeBoeff Javinski ("Ms. LeBoeff") has been an attorney since 2003. (Tr. 168). She was initially employed by the Lake County Public Defender's Office where she worked on misdemeanor cases and spent a short time in the Juvenile Division. (Tr. 169-70). Since 2005, she has been an assistant state's attorney with the Lake County State's Attorney's Office where she prosecutes juvenile delinquency and abuse and neglect cases out of the Vernon Hills offices. (Tr. 168-69). She has handled cases where Respondent has been on the other side as the public defender, but there has never been any animosity between them and she has never had an altercation with him. (Tr. 170).
Ms. LeBoeff was the assistant state's attorney assigned to handle the Jaden G. matter. (Tr. 171). This was an abuse and neglect case that came into the State's Attorney's Office based on a hotline call from a hospital where the injured child was brought. (Tr. 171). DCFS then took custody of the minor sibling and it was referred to her office for charges. She was assigned to review the charges, file the petition, and handle the subsequent hearing for protective custody. (Tr. 171).
At some point in the case, Respondent filed a motion and then an amended motion on behalf of the parents seeking to vacate temporary custody. Ms. LeBoeff filed a response objecting to the motion. (Tr. 172). On April 9, 2009, the case came up for hearing before Judge Waites to set a date for the hearing on Respondent's motion. (Tr. 172-73). At that time, Ms. LeBoeff requested that the court hold a conference with the various parties in chambers regarding certain discovery matters. (Tr. 173). Ms. LeBoeff requested the conference because she had been given discovery the previous day related to the medical condition of Jaden G.'s sibling and she wanted the judge to review portions of it in camera and make a determination
regarding discoverability. (Tr. 173-74). Ms. LeBoeff had previously produced some of the medical records, but did not include the page that she had concerns about. (Tr. 175).
Ms. LeBoeff explained that she received the medical records regarding Jaden G.'s sibling the day before the hearing at around 4:50 p.m. from Ms. Quinn. (Tr. 182-83). Ms. Hayward happened to be in her office at the time and they were discussing the medical condition of the minor. She gave Ms. Hayward three pages of the records that were relevant to the child's medical condition to review overnight, but did not give her the specific page that she had concerns about. (175-76, 182-84, 188). She told Ms. Hayward that this was not the full discovery and that she would receive the rest of it in court the next day after the judge reviewed it. (Tr. 184).
Ms. LeBoeff was aware that Ms. Hayward had stepped away from the Jaden G. matter that week because of a conflict, but she was not sure of the date. She said that she gave the documents to Ms. Hayward rather than Ms. Gordon because she happened to be in her office with her discussing the medical condition of the child. (Tr. 188). She asked Ms. Hayward to discuss it with Ms. Gordon and give her the papers. Ms. LeBoeff is not sure why she gave the records to Ms. Hayward rather than Ms. Gordon. It is possible that Ms. Gordon was out of the office at the time and she wanted to make sure that they were on her desk and that she had a chance to read them before court. Ms. LeBoeff offered no reason as to why she was discussing the child's medical condition with Ms. Hayward, other than that she happened to be in her office when the records arrived. (Tr. 183-84, 188).
When they got into chambers, Ms. LeBoeff turned the document in question over face-down on the table and slid it across to the judge because she only wanted the judge to see it. The document was a medical record regarding the condition of the minor child that also included
handwritten notes made by a doctor at Children's Hospital in Milwaukee regarding the conduct of Respondent. (Tr. 174). Ms. Leboeff wanted the judge to specifically review the portion relating to the actions of Respondent and determine which parts were discoverable before she produced it. (Tr. 174-76). As she slid the document over to the judge, Respondent made a comment along the lines of, "What are you going to do, turn me in to the ARDC again for misrepresenting myself?" Respondent did not explain himself further, but repeated the remark twice. (Tr. 176). Ms. LeBoeff believed that the comment referred to the Bradley C. case, because this is the only other time she is aware of that her office filed a complaint with the ARDC. (Tr. 176-77). Ms. LeBoeff described Respondent's demeanor in chambers as "angry and hostile and yelling." (Tr. 177).
After reviewing the document, Judge Waites determined that only the portion that related to the child's medical condition was discoverable. The judge folded the document in order to separate the part concerning Respondent's actions from the rest of the document. (Tr. 177). The judge did not indicate why she made her ruling. All of the other medical records of Jaden G's sibling were tendered to all parties. (Tr. 187). There was no court reporter present during this proceeding. (Tr. 177-78, 187).
Following this conference in chambers, Ms. LeBoeff had concerns regarding Respondent's conduct. (Tr. 178). These were based in part on what occurred in chambers and in part on conversations that she had with Ms. Quinn. Ms. LeBoeff became aware during the conference that Respondent had copies of the discovery that she had handed to the GAL but had not yet tendered to any parties. She knew this because the documents had her initials in the bottom right hand corner and she had not given him those papers. (Tr. 178-79). She informed
her supervisor of the situation and they ultimately determined to write a letter to the ARDC. (Tr. 179).
The other matter involved a telephone conversation Ms. Quinn had with Respondent about the case. Ms. Quinn had told Ms. LeBoeff that at the beginning of the conversation, she thought that she was speaking to Scott Turk from the State's Attorney's Office. Scott Turk had worked in the Juvenile Division a week or two prior to the phone call, but had since rotated back to the Felony Division. She said that Ms. Quinn had initially asked the caller if this was the State's Attorney's Office and he said "Yes." Ms. LeBoeff testified that Ms. Quinn knew both Respondent and Scott Turk, but thought that she was speaking with Scott Turk based on his response to this question. (Tr. 190-91). Ms. LeBoeff also testified that, at the end of the call, Respondent told Ms. Quinn his name. (Tr. 189-90).
With regard to the production of medical records, Ms. LeBoeff testified that she generally receives them from DCFS and then produces them to the GAL, the attorneys for the parents, and any other parties. (Tr. 191-92). If she distributes the documents in court, she hands them out simultaneously to all parties. On other occasions, she may hand the discovery to the GAL in her office and then either mail it to the other parties or give it to them in court. She said that there could be occasions where parties other than the GAL are not entitled to the records. (Tr. 192-93). Ms. LeBoeff stated the she does not know if a child's medical records are generally available to the parents, but she has had an experience in a different matter where records were withheld from the parents' attorney pending the outcome of a child abuse investigation. (Tr. 185). Although she acknowledged that she testified to the contrary at her deposition on April 28, 2010, this case that she is referring to arose after her deposition. (Tr. 185-86).
On March 26, 2009, the Lake County Public Defender's Office was appointed to represent the parents of Jaden G. in an abuse and neglect matter which stemmed from allegations that Jaden G.'s father had abused Jaden G.'s brother and that Jaden G. was residing in an environment injurious to his welfare. (Tr. 41-422). Respondent happened to be in court when the case was initially brought and he made the determination as supervisor to handle the matter himself. (Tr. 243-44). The minor child was also represented by the Public Defender's Office, initially by Ms. Hayward and then later Ms. Gordon. (Tr. 42). Although Respondent was the overall supervisor of the office, he did not supervise either Ms. Gordon or Ms. Hayward in relation to their handling of the Jaden G. matter. (Tr. 42). In order to avoid any conflicts of interest, attorneys acting on behalf of children in abuse and neglect cases have a different immediate supervisor than attorneys for the parents. (Tr. 43-44). Respondent testified that, in his opinion, different supervisors were not necessary in order to keep confidential information separate from attorneys representing the parents and those representing the children. (Tr. 44).
When the Jaden G. matter first came to the court's attention, the court ordered temporary custody of the child to DCFS. (Tr. 44). Respondent explained that when a child is alleged to be abused, neglected, or dependent, DCFS notifies the State's Attorney's Office that it has taken protective custody of the child. (Tr. 44-45). The State's Attorney's office then has 48 hours to docket the case and hold an initial hearing concerning certain issues in order to determine whether custody should be retained. (Tr. 45). After being appointed to handle the matter, Respondent met with his clients at the judge's direction to try to work out some agreement regarding the matters at issue at this initial hearing. (Tr. 243-44). He also interviewed the parents in order to determine the best approach for handling the case. (Tr. 245-46). At that time,
the medical reports for the injured child were at the crux of the allegations in the petition for adjudication of wardship. Although neither parent had been criminally charged, both had been interviewed by police. The father was eventually charged criminally but the mother was not. (Tr. 246).
After this first meeting, Respondent had an additional meeting with the parents and went to the home to view where the incident allegedly occurred. (Tr. 246-47). Respondent testified that he did not really have to seek discovery, because at the first court hearing Judge Waites had ordered both sides to comply with discovery. (Tr. 247). In these proceedings, this means that you give everyone else whatever you have, including hospital records, DCFS records, notes, and progress reports. (Tr. 247-48). Judge Waites had also previously entered an order under HIPAA (Health Insurance Portability and Accountability Act) to facilitate the State's Attorney's Office getting the medical records. (Tr. 248). Respondent testified that there was no restriction on Jaden G.'s parents or their attorney which limited their right to access the sibling's medical records. (Tr. 66-67).
Between the initial court date and the hearing on April 9, 2009, Respondent contacted the State's Attorney's Office two or three times regarding the subject of the child's medical records. (Tr. 250-51). He specifically recalls one face-to-face conversation he had with Ms. LeBoeff regarding the matter when he saw her in passing and asked if she had received the records. She responded that she had not. (Tr. 251-52).
Respondent also inquired about the records at the hospital. Jaden G's mother had called him from the hospital where she was visiting the injured child. The father, who was not allowed to visit, also took part in this call from his home. (Tr. 252-53). During this call, Respondent spoke with a social worker and a physician, Dr. Rebecca Russell. (Tr. 253-54). The social
worker told Respondent that the medical records had been sent to the "investigator." She did not know whether it was the law enforcement investigator or the DCFS investigator. (Tr. 254). This call took place on a Friday. Over that weekend, Respondent began drafting the motion to vacate the temporary custody order. (Tr. 254).
On April 6, 2009, the following Monday, Respondent had a telephone conversation with Ms. Quinn about the matter. (Tr. 46, 254). Since he had been told by the social worker that the medical records had been sent to the investigator, he decided to wait a couple of days before asking Ms. Quinn if she had received them. (Tr. 46, 254-55). At the time of the call, he had not yet filed his motion to vacate temporary custody. (Tr. 255). Although Respondent does not recall the exact words he used, he said that he probably called her "Becky" and identified himself as "Scott Wineberg" or "Scott Wineberg of the PD's Office." (Tr. 47, 255). He then told her which case he was calling about and explained that he was told by the social worker at the hospital that the medical records had been forwarded to an investigator. Since he did not know whether that meant the police investigator or DCFS investigator, he wanted to know if Ms. Quinn had received the records. Ms. Quinn responded that she did not have them. Respondent then asked her if she knew when she would be getting them and she said that she had "no idea." Respondent stated that he was a little irritated at this, and suggested to her that it might be helpful if she did some follow-up to see where the records were before they had the hearing. Ms. Quinn's response to this was the equivalent of a shrug or an "I don't know." Other than perhaps a closing remark, Respondent said that this was the extent of their conversation, which lasted no more than two minutes. (Tr. 47-48, 255-57).
Respondent denied that he identified himself as an assistant state's attorney or that he said that he was "with the State's Attorney's Office" in his conversation with Ms. Quinn. He
also denied doing anything else to lead Ms. Quinn to believe that he was working with the State's Attorney's Office. (Tr. 46-47). The only time he might have mentioned the State's Attorney's Office is if he asked her if she had sent the records to the State. (Tr. 257).
Respondent stated that he had no intention of deceiving Ms. Quinn and that he did not misrepresent himself. He also said that he saw no benefit to identifying himself as a state's attorney. (Tr. 258). In his experience, he has never had a DCFS investigator refuse to speak to him because he is a public defender. (Tr. 256-57). Respondent has no personal or social relationship with Ms. Quinn and has no reason to believe that she would have any animosity towards him. (Tr. 48).
On April 7, 2009, Respondent filed a motion seeking to vacate temporary custody and noticed the matter for hearing on April 9, 2009. (Tr. 49, 258). At that time, he still had not received the medical records related to Jaden G.'s sibling. (Tr. 259).
On April 8, 2009, between 4:50 p.m. and 5:00 p.m., Respondent went to the copy machine at the Public Defender's Office to copy something related to the Jaden G. case. (Tr. 49, 260-61). When he did, he discovered documents sitting on top of the machine near where he would have fed his own documents into the copier. (Tr. 261). There was one set of copies on top of the machine where the originals come out of the feeder and one set in the copy tray where the copies come out. (Tr. 50). Respondent looked at the documents and discovered that they consisted of three pages of medical records from Children's Hospital in Milwaukee pertaining to Jaden G.'s sibling. (Tr. 50, 261). He does not remember everything that was in them but he knew that they were not the complete medical records and represented only a small part of what he expected to receive. They did not contain the treatment or prognosis for the child or anything
that was "terribly helpful," and had very little probative value in terms of assisting him in representation of the parents. (Tr. 50-52, 261-62).
When Respondent found the documents he was not certain who had left them there, but knew that he had not placed them there himself. The only other people in the office assigned to the Jaden G. matter were Ms. Hayward and Ms. Gordon. (Tr. 53). Respondent looked around the office and saw that the lights and computers in both Ms. Gordon's and Ms. Hayward's offices were off. Respondent assumed that they were gone for the day and made no further effort to find either one of them. (Tr. 262, 53-54). Respondent had Ms. Gordon's cell phone number at the time, but he did not attempt to call her. (Tr. 54). Respondent did make a call to Ms. LeBoeff but he did not reach her. He left her a voice mail message stating that he had not received any medical records and inquiring whether she was sure she had given him everything she should have. (Tr. 262-63). Respondent then went back to the copier and made a set of copies of the documents for himself. He took those copies back to his office and left the other two sets of copies on the copier. Ms. LeBoeff did not return Respondent's call, either that evening or the following morning. (Tr. 53, 263). Respondent did not make any attempt to call Ms. Gossman, although he had her home and cell phone numbers. (Tr. 54-55). Respondent did not do any research regarding the appropriateness of taking or using the documents. (Tr. 55).
The hearing the following day on the pending motion was scheduled at 9:00 a.m. (Tr. 55). Respondent arrived at the office that morning sometime between 7:30 a.m. and 8:45 a.m. (Tr. 56). He checked his e-mail and also reviewed his motion. Respondent did not speak to Ms. Hayward or Ms. Gordon about the documents he found on the copier or consult with Ms. Gossman regarding the matter prior to the hearing. (Tr. 57, 263).
Respondent testified that in abuse and neglect cases in Lake County, the DCFS investigator is generally the person who gathers the necessary medical records and then delivers them to the state's attorney. The parents' attorney would then subsequently get the records in discovery from the State. (Tr. 48-49). Respondent had not subpoenaed the medical records in the Jaden G. matter and anticipated getting them through the good faith of the State's Attorney's Office. Respondent acknowledged that it angered him that the State's Attorney's Office had not provided him with the documents he found on the copier. (Tr. 58).
After the Jaden G. case was called for hearing, the parties were called into the judge's chambers for a conference regarding certain matters. At that time, Respondent said that he disclosed to the judge that he had recently realized that he had received only a portion of the medical records that he intended to rely on to establish his case. (Tr. 59, 264). After the other attorneys questioned how he had obtained the documents, he disclosed that he had found them on the copier. Respondent then questioned why the records had not been given to him sooner and why the GAL's office had them and he did not. (Tr. 59).
Respondent acknowledged that he also asked Ms. LeBoeff during this conference if she was going to report him to the ARDC. (Tr. 59). He said that he challenged her on this because she had been his opposing counsel on the Bradley C. matter. He said that he questioned her integrity and "would not put something like that past her." Respondent acknowledged that his demeanor during this conference was a "little less than professional." He said that because they were in chambers rather than in court, he displayed a little less decorum than he might normally show. (Tr. 60).
Judge Waites ultimately directed that the State turn all medical records over to Respondent in discovery except for a portion that contained a doctor's handwritten notes. (Tr.
264). This included all three pages of the records that Respondent found on the copy machine. Judge Waites never ordered Respondent to give up those three pages and never made a determination that he had no right to copy them. (Tr. 265).
Either later that same day or sometime the following day, Ms. Gordon approached Respondent to discuss his handling of the documents. (Tr. 60). During this conversation, Ms. Gordon questioned Respondent's actions and made statements that were accusatory in nature. She also remarked that this was why the GAL's office needed its own copier. She told Respondent that she was going to take the matter up with Ms. Gossman and Ms. Politte, and Respondent told her to "go ahead." He said that this statement was in response to her remark that they needed more office equipment. Respondent admitted that he also made a sarcastic remark like, "Shame on me," when she would not leave the matter alone. He also told her to go ahead and report him to the ARDC if she thought he had done something unethical. (Tr. 61).
On April 20, 2009, Respondent was called into a disciplinary meeting with Ms. Gossman and Ms. Politte to explain his actions. (Tr. 61-62). Respondent admitted that he told them that he would probably do the same thing again. (Tr. 62). Respondent received discipline as a result of this incident which included a demotion from supervisor, a suspension for one week without pay, and a reassignment from the juvenile division to the felony traffic court call. He was also told by Ms. Gossman not to work on the Jaden G. case. (Tr. 63).
Respondent was later terminated from his position at the Public Defender's Office for insubordination as a result of a subsequent incident involving the Jaden G. file. Respondent had asked a secretary to make him copies of certain documents in the parents' file. (Tr. 63-64). The items removed were his handwritten notes regarding conversations he had with the doctor and the social worker at the hospital which Respondent intended to include in his response to the
ARDC's inquiry into the matter. Respondent substituted the items that he took with photocopies and subsequently returned the originals after he was terminated. Respondent said that his sole reason for taking the items was to defend himself against Ms. LeBoeff's allegations in the ARDC proceeding. (Tr. 63, 65-66). Respondent did not discuss the appropriateness of his actions with Ms. Gossman before obtaining these materials. (Tr. 64).
Evidence Offered in Mitigation and Aggravation
Bartlett J. Carroll, Jr.
Bartlett J. Carroll, Jr., is an attorney who has been licensed to practice law in Illinois since 1966. He served in the United States Army from 1963 to 1993 and retired at the rank of Colonel. From 1993 to 2007, he worked as a GAL in the Lake County Public Defender's Office. He still does pro bono work for the Public Defender's Office and also does private work for the probate court as a GAL. (Tr. 217-18).
Mr. Carroll has known Respondent since 1993 and regards him as a "close personal friend." (Tr. 218, 221-22). He began working with Respondent in the Public Defender's office around 2001 or 2002. Respondent was the supervisor of the Juvenile Division at the time, but was not Mr. Carroll's boss. Mr. Carroll is familiar with Respondent's reputation in the legal community for truth and integrity and it is of the highest order. Mr. Carroll stated that Respondent was a tough adversary but his "word was his bond." (Tr. 218-19).
Mr. Carroll is aware that the complaint allegations against Respondent involve allegations that he misrepresented himself on two occasions and that he took and copied documents that did not belong to him. (Tr. 220). Mr. Carroll stated that in his opinion, there is "no way" Respondent could have engaged in misconduct that involves misrepresentation because they deal with integrity and Respondent has the highest degree of integrity. (Tr. 220).
He said that his opinion of Respondent would not change if the panel found against him because he is "positive" that Respondent did not commit those acts. (Tr. 224). Mr. Carroll explained that he was in the office in 2007 when the first charge of misrepresentation against Respondent was investigated and he said that Respondent would have to be a fool to do the same thing in 2009. As to the charges involving the documents, Mr. Carroll believes that Respondent's actions involved a "judgment call" and that Respondent thought that he had the right to use the information. (Tr. 220-21, 224).
When Mr. Carroll worked in the Public Defender's Office, he was aware of the policy that required the information of the parents' attorneys to be kept separate from the information of the children's attorneys. (Tr. 224-25). Although there was no written policy, this was understood. (Tr. 225-26). He recalled that the office had a meeting on this subject in 2005 where one of the GAL attorneys objected to the easy flow of information. As a result, the office strengthened the system so that the GAL attorney's began reporting to the Deputy Public Defender. (Tr. 225). Respondent was not present at this particular meeting and may not have been the chief of the Juvenile Division at the time. (Tr. 226). Mr. Carroll never had any discussions with Respondent about the policy, but assumes that he knew about it. (Tr. 226-27).
Susan Klausing has been employed as a nurse for 24 years. She has known Respondent for about 27 years. They went to high school together and have remained friends since that time. She knows many people in the community who also know Respondent he has a reputation as someone who is well-liked, respected, and honest. (Tr. 227-29).
Respondent testified regarding various volunteer activities and charitable causes he has been involved in during his career. When he was working in the Juvenile Division he responded to a flier circulated at the office and began to volunteer his time to mentor a child with the Big Brothers, Big Sisters program in Lake County. He was involved with this program for three school years where he mentored a 12-year-old boy by meeting with him once a week at his school during lunch. In 2008, Respondent was commended as Big Brother of the year of Lake County and his involvement with this program and the award were the subject of a news article. (Tr. 233; Resp. Ex. 1A). Respondent has also participated in career fairs and Law Day activities at local high schools, served as a judge for high school mock trial competitions, and volunteered at the Law Merit Badge Day for the Boy Scouts of America. He was also involved in a program called Youthbuild North Chicago, which is designed to divert minority youths from the juvenile justice system. (Tr. 235; Resp. Ex. 1C).
Respondent has also authored a number of articles for a publication of the Lake County Bar Association concerning various issues of criminal and juvenile law. (Tr. 233-34; Resp. Ex. 1B). Over the years, he has also participated as a panel member, speaker, or presenter at various legal seminars. (Tr. 235; Resp. Ex. 1C).
Since leaving the public defender's office in 2009, Respondent has been working as a sole practitioner in Lake County, primarily in the areas of juvenile law and criminal defense. (Tr. 27, 232). Beginning in January of this year, he has also held a part-time evening job at a retail store in order "to make ends meet" and currently works about 30 hours a week. (Tr. 232).
Respondent stated that he regrets the actions that he took with respect to the documents he found on the copier and would handle the situation differently if he had it to do over again.
(Tr. 266). Since he was already going to court the next day, he would have left the records where they were. Although he did not think that he should have needed another court order, he would have ultimately gotten those materials anyway. (Tr. 266).
The Administrator reported that Respondent has not been previously disciplined by the Illinois Supreme Court or any Board of the Commission.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary matters, the Administrator must establish charges of misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390, 393 (1999). Clear and convincing evidence constitutes a high level of certainty, which is more than a preponderance of the evidence but not quite as great as proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 484-85, 577 N.E.2d 762 (1991). Evidence of suspicious circumstances, standing alone, is not sufficient to support a charge of attorney misconduct. See In re Winthrop, 219 Ill. 2d 526, 550, 555, 848 N.E.2d 961 (2006).
The charges in Count I stem from the incident in 2007 when Respondent allegedly misrepresented to a police dispatcher that he was with the State's Attorney's Office. Respondent was specifically charged with the following misconduct: a) conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4); b) conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and c) 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.
Most of the facts leading up to the alleged incident are largely undisputed. Respondent was working as a public defender and was representing a minor, Bradley C., in a sexual assault case. The criminal charges were brought after Respondent's client allegedly walked into the Island Lake Police Department ("ILPD") one evening and made statements admitting to the crime. Respondent was seeking video and audio surveillance from the ILPD related to this incident in order to assess his client's physical and mental state and to potentially challenge the purported confession. After being informed in response to a subpoena that no such surveillance existed, Respondent was suspicious so he went to the ILPD in person one evening after work to further investigate the matter. Upon his arrival at the station, Respondent entered the small lobby area and looked around to see if any cameras were present. He also had a brief conversation with Catherine Vasquez, the police dispatcher who was working at the station at time.
What was said by Respondent during this encounter, in particular how he introduced himself, is the sole basis for the charges in Count I. According to the Administrator, Respondent initiated the conversation by falsely stating to Ms. Vasquez that he was "with the State's Attorney's Office." Respondent denies that he made this statement or that he otherwise misrepresented himself in any way.
In order to find misconduct here we must find that the Administrator proved by clear and convincing evidence that Respondent made the false statement attributed to him by Ms. Vasquez. As noted, the Administrator bears a heavy burden this regard. Thus, it is not sufficient that he establish that it is merely possible that the incident occurred or even that the allegations are more probably true than not. See In re N.B., 191 Ill. 2d 338, 343, 730 N.E.2d 1086 (2000) (stating preponderance of the evidence standard). Rather, we must be convinced to a high level of
certainty that the misrepresentation at issue was made. In this case, while we believe that it is possible that the incident occurred, we do not believe that the evidence presented was sufficient to rise to the level of clear and convincing proof.
The evidence at the hearing concerning what was said by Respondent during his brief exchange with Ms. Vasquez was clearly in direct conflict. The only two witnesses who testified regarding the matter were Respondent and Ms. Vazquez. Ms. Vasquez testified that she was "sure" that Respondent stated that he was with "the State's Attorney's office" before beginning his inquiries about the video surveillance at the station. She also said that she regarded the incident as suspicious because of the time of day and because Respondent was not dressed like an attorney. Based on these suspicions, she took various steps to follow-up on the matter. Respondent, on the other hand, was equally certain in his testimony that he had not made any such misrepresentation. Although he could not remember his exact words, he said that he told Ms. Vasquez he was with either with the "PD's" office, the "Public Defender's" office, or simply that he was the attorney for the juvenile accused in the sexual assault case. He denied that he did anything to mislead Ms. Vasquez into believing that he was a state's attorney and denied that he saw any benefit to doing so.
After considering the conflicting testimony of both of these witnesses as well as the other facts and surrounding circumstances, we are not convinced that it was established that the alleged misrepresentation was made. In order to reach this conclusion we would essentially have to conclude with a high degree of certainty that Ms. Vasquez's testimony regarding this statement was accurate. Although we have no reason to think that she would purposely lie about the matter, we believe that it is possible that she could have been mistaken or confused about what was said by Respondent. By her own account, her testimony is based entirely on a few
words spoken by Respondent at the beginning of a very brief encounter. Ms. Vasquez did not ask for any proof of Respondent's identity and he apparently did not offer any. Nor did she suggest that Respondent said or did anything else during their conversation to further mislead her, either about his identity or anything else. Ms. Vasquez acknowledged that attorneys rarely came into the station during her shift and that she had infrequent dealings with them. She also admitted that she was unfamiliar with the term public defender and was unaware that a public defender, like a state's attorney, is also an attorney. Moreover, it was evident from her testimony that her suspicions about Respondent which caused her to follow-up on the incident were based on the fact that she did not think that he looked like an attorney at all, not that she specifically doubted that he was a state's attorney. Based on her testimony as a whole, especially the brief nature of the encounter and her overall lack of experience in such situations, we believe that it is possible that she could have either misunderstood Respondent or otherwise misinterpreted what he said.
In addition, we also note the lack of convincing proof of any real motive on Respondent's part to lie to Ms. Vasquez about his identity or affiliation. Although the Administrator suggested that Respondent thought that he might gain some advantage in obtaining information by saying he was a state's attorney, Respondent denied this and there was no real evidence presented to support this contention. Moreover, the few questions that he asked were fairly straightforward and even Ms. Vazquez stated that she would not have treated him any differently with respect to these inquiries if she thought he were with the State's Attorney's Office. We are aware that it is not necessary to establish a motive in order to prove misconduct in an attorney disciplinary matter. See In re Witt, 145 Ill. 2d 380, 395-97, 583 N.E.2d 526 (1991); In re Wick, 05 CH 66, M.R. 23942 (Sept. 22, 2010). In this case, however, the lack of any real on motive on the part of
Respondent for making the alleged misrepresentation raises further doubts in our minds about whether the statement was in fact made.
Based on the evidence as a whole, including the conflicts in the witnesses' testimony, the lack of any directly corroborating evidence, and the lack of any convincing proof of motive or intent, we do not believe that it was established to a high degree of certainty that Respondent made the false statement that serves as the basis for the charges in Count I. Accordingly, we find that the Administrator failed to prove the charges in this count by the required clear and convincing evidence.
Counts II and III
Counts II and III of the complaint both stem from separate incidents that took place in 2009 while Respondent was handling the Jaden G. abuse and neglect matter. Jaden G. had been taken into protective custody by DCFS in an action initiated by the State after his brother was hospitalized with serious injuries suspected to have been the result of abuse. As is often the case, the Lake County Public Defender's Office was appointed to represent both the minor child and the parents in the matter. As the supervisor of the office at the time, Respondent decided to handle the representation of the parents himself. The minor, Jaden G., was initially represented by Ms. Hayward and then later Ms. Gordon, the two GAL attorneys in the office. Ms. LeBoeff was the state's attorney assigned to the case and Ms. Quinn was the DCFS investigator. Early on, Respondent began building a case designed to challenge the State's action and to seek return of custody of Jaden G. to his parents. The medical records and other information regarding the nature and cause of the injuries suffered by Jaden G.'s sibling were obviously of significant importance to Respondent in establishing his theory of the case.
The misconduct charged in Counts I and II stems from actions allegedly taken by Respondent in connection with his efforts to obtain access to these records. Respondent is charged in both counts with the following misconduct: a.) conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4); b.) conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and c.) 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.
Count II is based on allegations, similar to those in Count I, that Respondent misrepresented that he was with the State's Attorney's Office in order to obtain information from the DCFS investigator regarding the whereabouts of the medical records of Jaden G's sibling. The specific incident at issue took place on April 6, 2009, during a telephone call between Respondent and Ms. Quinn. At the time, Respondent had been gathering information to support a petition he planned to file to have Jaden G. returned his parents' custody and he was waiting to receive the medical records for Jaden G.'s sibling in order to prepare his case. Several days earlier, Respondent had spoken with someone at the hospital about the records and was informed that they had already been sent to the "investigator." He followed up on this by calling Ms. Quinn to ask her if she had the records.
According to the allegations in Count II, Respondent identified himself to Ms. Quinn at the beginning of this conversation as being with the "State's Attorney Office." Respondent has denied that he made any such misrepresentation.
As with Count I, in order to find misconduct here we must conclude that the Administrator proved by clear and convincing evidence that Respondent made the
misrepresentation attributed to him by Ms. Quinn regarding his affiliation with the State's Attorney's office. Again, we find that the evidence presented with respect to this charge was not sufficient to rise to the level of clear and convincing proof.
Like with Count I, there was conflicting testimony presented at the hearing concerning what was said by Respondent during this conversation. The only two parties that directly took part in the conversation were Ms. Quinn and Respondent. Ms. Quinn testified that Respondent identified himself at the beginning of the conversation as "Scott from the State's Attorney's Office." She said that she was "positive" that he identified himself this way and that it was not possible that he said he was with the Public Defender's Office. Respondent, on the other hand, was equally certain that he had not made any such misrepresentation. Although he could not recall his exact words, he said that he identified himself as either "Scott Wineberg" or "Scott from the PD's office." He denied that he said that he was with the State's Attorney's Office or that he did anything else to lead Ms. Quinn to believe that he was a state's attorney.
In addition to the conflicting testimony of Respondent and Ms. Quinn, there was also additional testimony from Ms. LeBoeff regarding what transpired during this call. Although not a party to the conversation, Ms. LeBoeff's testimony was based on information that was provided to her by Ms. Quinn the day after the call. Ms. LeBoeff gave another version of what was said by Respondent. She testified that Ms. Quinn asked the caller at the beginning of the conversation if he was from the State's Attorney's Office and he responded, "Yes." Based upon this response, Ms. Quinn believed during the call that she was speaking with a person named Scott Turk, who was another assistant state's attorney who had recently worked in the Juvenile Division. Ms. LeBoeff testified that Ms. Quinn knew both Respondent and Scott Turk but believed that she was speaking with Scott Turk based on the caller's response to the initial
question. She also said that it was not until the end of the conversation that Respondent told Ms. Quinn that his name was "Scott Wineberg."
When asked about it at the hearing, however, Ms. Quinn denied that she even knew who Scott Turk was. She also denied ever telling Ms. LeBoeff that she thought Respondent was Scott Turk. She further denied that Respondent told her his full name during the call and denied telling Ms. LeBoeff that he had done so.
Ms. LeBoeff's testimony obviously differs significantly in key respects from the testimony of Ms. Quinn regarding the alleged misrepresentations made by Respondent. While we do not suggest that either Ms. Quinn or Ms. LeBoeff made up the incident or is deliberately lying about the matter, someone is clearly mistaken about what occurred. Given these three significantly different accounts of this same conversation, especially the inconsistencies in the testimony of the Administrator's two witnesses regarding the key facts surrounding the alleged misrepresentation, we have difficulty concluding that the charges in this count were proven by clear and convincing evidence.
In addition, we also again note the lack of proof of any real motive or intent on Respondent's part to misrepresent himself to Ms. Quinn in this way. The Administrator again suggested that he thought he could get information more readily from Ms. Quinn if he said he was a state's attorney. We are not convinced that this was borne out by any evidence that was presented. Respondent denied that he saw any benefit to identifying himself as a state's attorney when inquiring about the child's medical records. He also testified that in his experience he has never had a DCFS investigator refuse to speak to him because he is a public defender. We also find it significant that, immediately following the call, Respondent apparently sent an e-mail to all the attorneys in the case, including both of the GAL attorneys and Ms. LeBoeff, which
specifically referenced his conversation with Ms. Quinn. Such behavior seems inconsistent with the actions of someone who just had knowingly tricked or deceived someone into taking his call.
Based on all of the evidence as a whole, including the inconsistencies in the various witnesses' testimony, the lack of any directly corroborating evidence, and the absence of any convincing proof of motive or intent, we do not believe that it was established to a high degree of certainty that Respondent made the false statement alleged in Count II. Accordingly, we find that the Administrator failed to prove the charges in this count by the required clear and convincing evidence.
The charges in Count III are based on a separate incident in the Jaden G. case involving Respondent's alleged unauthorized copying of documents. Unlike the other two counts, the basic facts at issue in this count are essentially undisputed and the only real issue presented concerns the propriety of Respondent's actions.
Late in the day on April 8, 2009, Ms. Hayward, the GAL who initially represented Jaden G., inadvertently left three pages of discovery materials on the shared copier in the public defender's office. The documents were part of the medical records related to the hospitalization of Jaden G.'s sibling which had been produced to her earlier that day by the state's attorney, Ms. LeBoeff. These were the same records that Respondent had also been seeking in connection with his representation of the parents, although they had not yet been produced to him. While Respondent was in the office preparing for a hearing the next morning on his pending motion to return custody of the child to the parents, he discovered the documents which had been mistakenly left on the copier. After realizing that they were the medical records that he had been seeking, he made the decision to copy the documents and to take them for his own file. He did
not speak with Ms. Hayward, Ms. Gordon, or his supervisor, Ms. Gossman, before taking this action. Nor did he do any research regarding the matter.
At the hearing the following morning, Respondent revealed to the court and the other attorneys present that he already had the child's medical records. He also disclosed the manner in which he had obtained them. Although the judge withheld part of another page of the medical records from Respondent, all three of the pages at issue were produced to him in discovery.
Following this incident, Ms. Gordon had significant concerns about the propriety of Respondent's actions and about his apparent breach of office policy regarding access to information in abuse and neglect cases where the office represents both parties. After confronting Respondent about the matter, she reported the incident to their supervisor, Ms. Gossman. Respondent admitted to Ms. Gossman what he had done and attempted to justify his behavior. Ms. Gossman concluded that he had acted improperly and subsequently took certain disciplinary action against him, which included a transfer out of that office to the felony division at another location. She also instructed him not to have any further involvement with the Jaden G. case. Shortly thereafter, Respondent went to the Juvenile Division offices and accessed and copied certain documents from the Jaden G. file for the purpose of responding to an ARDC inquiry regarding his conduct. After learning of these additional actions, Ms. Gossman terminated Respondent's employment.
The Complaint alleges that Respondent's unauthorized copying of the documents he found on the copier was not only improper but was also dishonest. Although Respondent does not dispute that he took and copied the materials, he denies that he engaged in any misconduct. He argues that he was entitled to receive the documents in discovery anyway and was justified in
taking them in order to prepare for his hearing the next morning. He argues that at most he made a bad judgment call by acquiring them in this manner.
We find that it was established by clear and convincing evidence that Respondent violated Rule 8.4(a)(4) and Supreme Court Rule 770 by copying and taking these documents which clearly did not belong to him. We specifically find that Respondent knew that he had no right to take these documents and that his actions were therefore, dishonest. We find that the Rule 8.4(a)(5) charge was not proven by clear and convincing evidence.
The evidence established that the Lake County Public Defender's Office has a well-established policy in place in cases such as this which involve the office's dual representation of both parents and children in abuse and neglect matters. That policy is designed to address the serious ethical concerns inherent in its representation of adverse parties in these cases. The evidence showed that potential problems associated with this practice, as well as the ethical issues involved, are well-known. As Ms. Gossman testified, these issues have been the subject of various court decisions as well as ethics opinions which have considered the propriety of such arrangements. See, e.g., People v. Lackey, 79 Ill. 2d 466, 405 N.E.2d 748 (1980); People v. Robinson, 79 Ill. 2d 147, 402 N.E.2d 157 (1979); ISBA Advisory Opinion on Professional Conduct 91-17 (Jan. 1992). ISBA Opinion 91-17 specifically addresses the particular problems associated with arrangements similar to the one at issue here, which involves public defenders who share a common office and support staff representing both parents and children in abuse and neglect matters.
In response to these concerns, the Lake County Public Defender's Office has implemented various measures that are specifically designed to deal with these ethical issues. One matter of particular concern is the potential for improper exchange or sharing of information
between the attorneys on opposite sides of the case as a result of the shared use of office space, equipment, and support staff. In order to address this issue, the office has a policy which prohibits the parent attorneys and GAL attorneys from sharing information or having access to each other's files. The office suite has also been specifically set up and designed with this issue in mind, so that the parent attorneys and the GAL attorneys have their offices located at the opposite ends of the suite. The two different types of attorneys also report to different immediate supervisors and store their files separately, either in their own offices or their own file cabinet.
The evidence further established that Respondent was clearly aware of the existence of this policy as well as the significant ethical concerns underlying it. Although the policy was not in writing, it is clear from all of the evidence presented that is was well-known and understood by everyone who worked in the office. With the possible exception of Respondent, this was supported by the testimony of every witness who testified at the hearing, including Respondent's own character witness. The existence of the policy was also further reinforced through these various additional means, including the physical layout of the office space and the delineation of supervisory responsibilities. Respondent had not only worked in the Public Defender's office for many years, he was supervisor of the Juvenile Division. As such, he was actually one of the individuals responsible for ensuring the policy was being followed. Based on all of the evidence presented, we believe that there can be no doubt that Respondent both knew about the policy and knew that the policy prohibited him from having access to the GAL attorneys files and other materials in cases of this nature.
In light of the foregoing, we further find that Respondent's actions under the circumstances were not only improper and in violation of established office policy, they were also dishonest. It is clear from the evidence that Respondent knew when he came across the
documents on the copier related to the Jaden G. matter that they did not belong to him. It is also evident that he knew that they belonged to the GAL and were not intended for his use. Respondent admitted as much when he said that he was angered by his realization that the GAL had received the records that he had been waiting for and they had not yet been provided to him. It is also clear that he knew that established office policy prohibited him from having access to the materials such as this, which belonged to his adversary in the case. While he may have initially come across the materials innocently, he had to know that he had no right to take or copy the documents for himself. For him to do so under all of these circumstances was clearly dishonest.
We also find it significant that Respondent failed, upon finding the documents, to take any real steps to investigate the matter further before deciding to take and copy the materials. Although he apparently left a message for Ms. LeBoeff, he did not specifically mention his discovery of the documents on the copier. Nor did he research the issue or attempt to contact Ms. Hayward or Ms. Gossman by phone, even though he had both of their cell phone numbers. Moreover, he apparently did not even mention the matter to Ms. Hayward at the office the next morning before they both went to court. We believe that Respondent's failure to undertake any further inquiry regarding the matter or to even notify anyone involved of his actions is further evidence that he knew that what he was doing was wrong.
Respondent suggested at the hearing that it was not improper for him to take the documents because he needed them to prepare for the hearing, he had a right to receive them anyway, and they should have been provided to him in discovery. He pointed out that the judge confirmed this the next morning when he determined that was entitled to receive all three pages.
He also noted that nothing in the materials was privileged or confidential and that his actions did not result in the breach of any client confidentiality.
Although these considerations are mitigating to some extent, we do not believe that they justify or excuse Respondent's conduct. Respondent clearly did not know with any certainty when he took the documents that he would be entitled to receive them. The evidence showed that there are situations where materials such as these may be withheld from the parents for particular reasons. This point was specifically illustrated in this case by Judge Waites' ruling that a portion of another page of the records did not have to be produced to Respondent. Although this was not part of what was left on the copier, Respondent had no way of knowing this at the time. Moreover, regardless of whether Respondent had a right to receive these materials we believe that it was incumbent upon him to seek them through the proper channels. For him to simply take them from his adversary in the manner that he did was clearly wrong.
We also find that it was established by clear and convincing evidence that Respondent violated Supreme Court Rule 770. Dishonesty by an attorney in violation of Rule 8.4(a)(4) necessarily reflects negatively on the legal profession and has a tendency to bring it into disrepute. See In re Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961(2006).
We find that it was not proven by clear and convincing evidence that Respondent's actions were prejudicial to the administration of justice in violation of Rule 8.4(a)(5). This rule has generally been interpreted as requiring a showing that the attorney's actions caused actual harm or prejudice to a judicial proceeding. See In re Storment, 203 Ill. 2d 378, 399, 786 N.E.2d 963 (2002); In re Vrdolyak, 137 Ill. 2d 407, 425, 560 N.E.2d 840 (1990). Although we have found that Respondent acquired the documents at issue in an improper manner, we note that they
were all subsequently produced to him in discovery. We do not believe that it was proven that his actions caused any harm, prejudice, or other adverse impact on the case.
Having found that Respondent engaged in misconduct, we must determine appropriate discipline. In making this recommendation, we take into account that the goal of the disciplinary process is not to punish the Respondent, but to safeguard the public, maintain the integrity of the profession, and protect the administration of justice. In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300 (1993). We also consider the nature of the misconduct, the aggravating and mitigating factors, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). Although each case is unique and must be resolved in light of its own facts and circumstances, predictability and fairness require that we recommend sanctions that are consistent with those imposed in cases involving comparable misconduct. In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994).
Respondent's misconduct here in improperly taking and copying documents that did not belong to him is clearly serious, particularly because it involves dishonesty. Through his actions he violated a well-known office policy that was specifically implemented to address serious ethical concerns. His behavior is particularly inexcusable in light of his role as a supervisor as well as his extensive experience in the office. An attorney of Respondent's stature should set an example to others with respect to proper and ethical behavior, not bend or break the rules himself.
While we believe that his actions were clearly improper, we also note that he was not motivated by any personal or financial gain. Rather, as even the Administrator conceded, he was driven by his desire to aggressively and zealously represent the best interests of his clients. We also recognize that he had an honest belief that he was entitled to receive the documents in order to prepare his case and that they should have been produced to him through discovery. In addition, we note that he disclosed his actions promptly in court the next day and made no attempt to lie about the matter or to conceal his behavior. Further, there is no evidence that his misconduct caused any actual harm, either to his client, the other parties in the case, or the public. Nor did it result in the breach of any client confidentiality. While these considerations clearly do not negate or excuse Respondent's actions, they do mitigate to some extent the seriousness of his wrongdoing.
There was also other significant mitigating evidence presented here. The evidence demonstrated that Respondent has devoted his entire legal career to public service as an attorney with the Lake County Public Defender's Office. Much of this time has been spent working in the Juvenile Division on delinquency and abuse and neglect matters, an undoubtedly challenging and worthwhile area of practice. He has also been involved in various charitable and other volunteer activities, both within the legal profession and the community at large. He has authored a number of published articles on juvenile and other criminal law matters and has participated in various legal seminars geared toward educating and improving the profession. He spent three years mentoring a child through the Big Brothers and Big Sisters program and received an award for his efforts in this regard. He has also spent a considerable amount of time volunteering at local schools, with the Boy Scouts, and for an organization that focuses on
juvenile delinquency issues. Respondent's volunteer and charitable activities are significant and commendable.
We also consider in mitigation that Respondent has not been the subject of any prior disciplinary action throughout the course of his 18 years in practice. Further, he acknowledged at the hearing that he exercised poor judgment in the way that he handled the matter and expressed regret and remorse. He also presented several character witnesses who attested to his overall integrity and favorable reputation for honesty.
In addition to the foregoing factors, we also note in mitigation that it is evident that Respondent has already endured significant adverse consequences, apart from these disciplinary proceedings, as a result of his misconduct. He was initially demoted and then later terminated from his position with the Public Defender's Office. Thus, his actions cost him a job that he held throughout his entire legal career and to which he appears to have been dedicated. The Court has indicated that adverse consequences such as these can properly be taken into account in mitigation in determining a disciplinary sanction. See In re Armentrout, 99 Ill. 2d 242, 256, 457 N.E.2d 1262 (1983) (noting in mitigation that former state's attorney was convicted and fined for his misconduct, did not seek reelection to office, lost his promising political career, and suffered substantial financial and professional loss). See also In re Casson, 06 SH 23 (Apr. 18, 2007) (noting in mitigation that the respondent was forced to resign his position as public defender resulting in loss of salary and benefits).
With regard to a specific sanction, the Administrator has suggested that Respondent be suspended for a period of 90 days and he has cited a number of cases in support of this position. Respondent argues that no misconduct was established and that no sanction is warranted. He has not proposed any specific sanction in the event that misconduct is found.
With respect to the Administrator's sanction recommendation, we note initially that it is based on all of the misconduct charged in the complaint and we have concluded that only one of the charges was proven. We also believe that the cases relied upon by the Administrator in support of this sanction are either factually dissimilar or otherwise distinguishable from this case.
In In re Mays, 00 SH 8, M.R. 17247 (Jan. 19, 2001), the respondent was suspended for 90 days for misconduct that included misrepresenting his client's identity to a process server and then making additional misrepresentations to a United States Magistrate about the matter. He also engaged in additional misconduct in another matter by improperly notarizing a signature on a deed. Although some of the misconduct at issue in Mays is similar to the misconduct alleged here in Counts I and II, we have found that those charges were not proven. In addition, we believe that overall the misconduct is more serious than that here because it involved two separate instances of wrongdoing and included misrepresentations to a tribunal in an effort to conceal the original wrong. There is no suggestion that the Respondent ever lied about his actions, either to the court or to anyone else.
In In re Verett, 07 SH 105, M.R. 22567 (Sept. 17, 2008), the respondent was suspended for 90 days for knowingly and intentionally concealing various material facts from a judge in order to obtain certain injunctive relief for a client. The matter involved a father's efforts to enjoin surgery that was scheduled to take place on his minor child who was not in his custody. After being denied that relief after a hearing in an Illinois court, the respondent initiated a second proceeding in Missouri seeking essentially the same relief without informing the judge that the matter had already been adjudicated in another proceeding. She also engaged in additional misconduct by subsequently lying about the matter in her sworn statement to the ARDC. Although Verett is also a case of overzealous advocacy on behalf of a client, is it otherwise
dissimilar from this matter. Respondent clearly did not go to the lengths that the attorney did in that case, which involved hiding material facts from a tribunal in order to get the client the relief he sought. Nor was he ever subsequently dishonest about his actions.
In In re Norton, 07 SH 37, M.R. 23278 (Sept. 22, 2009), the respondent was suspended for 90 days for various improper actions she took in connection with her representation of a defendant in a first degree murder case. Her misconduct included communicating with and taking a sworn statement from a co-defendant without the knowledge or consent of his attorney, knowingly making a false statement on a jail visitor's record regarding who she was there to see, failing to turn over the materials which were exculpatory to her client upon her discharge, and falsely representing to her client that she was not holding any evidence. Again, while the misrepresentation on the jail record is arguably similar to the misconduct at issue in Counts I and II, we have rejected those charges. Otherwise, we believe that the misconduct in Norton was clearly far more calculated and extensive than the isolated incident at issue here.
In In re Nelson, 02 CH 12, M.R. 19657 (Nov. 17, 2004), the respondent was suspended for 90 days for misconduct related to improper use of client documents. The respondent was working as an attorney for the Chicago Transit Authority (CTA) and apparently developed a belief that she had been the victim of pay discrimination. Thereafter, she went to the office on two different Saturdays for the specific purpose of obtaining material to support a potential action against her employer. The evidence suggested that she went into files without authorization and copied various materials, including documents that were specifically labeled "privileged" or "confidential." She took those materials home with her and subsequently provided them to her own attorney who used the information to support an action by her against the CTA. The respondent in Nelson was found to have engaged in a variety of misconduct,
including breach of fiduciary duty, improper disclosure and use of confidential client information, improper representation of a client when potentially limited by the attorney's own interests, conduct involving dishonesty, fraud, deceit or misrepresentation, and conduct prejudicial to the administration of justice and which brought the legal profession into disrepute.
Although Nelson is somewhat similar to this case in the sense that it also involved improper access to and use of documents, the misconduct overall was substantially more serious. Unlike Respondent who simply stumbled upon the documents on the copier on the eve of a hearing, the attorney in Nelson engaged in actions that were calculated, repeated, deliberate, and specifically designed to obtain evidence to support her own case. In addition, the documents that were improperly accessed and copied were not routine discovery materials such as those at issue here, but included confidential and privileged information which she subsequently provided to third parties, thereby breaching client confidentiality and causing her client harm. Moreover, unlike Respondent, the attorney in Nelson was obviously not acting to further her client's best interests, but instead put her own personal interests above those of her client. Thus, she was responsible for a very serious breach of the essence of the attorney-client relationship. Although there was also some mitigation in Nelson, we believe that overall the mitigation presented here was stronger. Based on these significant distinctions, we conclude that Respondent's misconduct warrants a substantially lesser sanction than was imposed in Nelson.
Our review of additional authority beyond that cited by the Administrator indicates that the Court has frequently censured attorneys, rather than suspend them, in cases roughly comparable to this one which involve isolated incidents of dishonesty or misrepresentation coupled with substantial additional mitigation. Based on this authority, we believe that a similar sanction is appropriate here.
For example, in In re Stern, 124 Ill. 2d 310, 529 N.E.2d 562 (1988), the respondent was censured for dishonesty and deceitfulness in backdating a letter in connection with his own divorce proceeding. Although he prepared the letter to defend against a contempt petition and it was provided it to his wife's attorney, he stopped short of using it in court. In determining that a period of suspension would be excessive under these circumstances the Court noted that the respondent's conduct, "while tainted by an element of deceit," was not intended to be used to perpetrate a fraud on the court. 124 Ill. 2d at 316. It also noted the respondent's lack of any prior discipline during his 15 years of practice.
In In re Grammer, 04 CH 119, M.R. 20521 (Jan. 13, 2006), the respondent was also censured for making two statements of material fact to a tribunal in a probate matter that she reasonably should have known were false. In deciding that a censure rather than a suspension was appropriate, the Hearing Board emphasized various mitigating factors, including the fact that this was an isolated incident in an otherwise honorable legal career.
In In re Myers, 99 SH 88, M.R. 17766 (Jan. 28, 2002), the respondent was censured for testifying falsely and for failing to disclose certain relevant facts at a guardianship hearing in which he was personally involved. In determining that a censure was appropriate notwithstanding the serious nature of the misconduct, both the Hearing and Review Boards noted the extensive mitigation, including a distinguished and unblemished 25-year career and significant pro bono and charitable work. Also noted was the fact that the respondent was not motivated by any self interest or pecuniary gain, but by his genuine belief that he was acting in the best interest of the children involved.
Finally, in In re Toohill, 99 SH 11, M.R. 16952 (Nov. 22, 2000), the respondent was censured for counseling her clients to falsely claim that a decedent had died intestate and for
preparing and filing false documents and a pleading in support of that claim. In mitigation, it was noted that the respondent was not motivated by personal gain but by a desire to help the heirs obtain their inheritance in the most expeditious and inexpensive manner possible. She had also practiced law for 25 years without other discipline and the misconduct was considered to be aberrational.
While none of these cases is identical to this one, we believe that overall they are sufficiently similar to support comparable discipline in this case.
After taking into account the particular nature of Respondent's misconduct, the substantial mitigation that was presented, the discipline that has been imposed in other comparable cases, and the goals of the disciplinary process, we believe that a censure rather than a suspension is the appropriate sanction in this case. Accordingly, we recommend that Respondent, Scott Andrew Wineberg, be censured.
Date Entered: November 16, 2010
|Henry P. Wolff, Panel Member, with Francis D. McConnell Williams, concurring.|
Kenn Brotman, concurring in part and dissenting in part.
While I concur with the findings of the majority with respect to charges in Counts II and III, I dissent from its findings on Count I. I find that certain of the charges in this count were proven by clear and convincing evidence.
Unlike the majority, I believe that the Administrator established by clear and convincing evidence that Respondent misrepresented that he was with the State's Attorney's Office in his
encounter with Ms. Vasquez. I base this finding on the testimony of Ms. Vasquez, which I found to be highly credible. Ms. Vasquez was obviously a disinterested party who had absolutely no motive or reason to fabricate the incident or to lie. She spoke with certainty regarding the statement that was made by Respondent and was unwavering in her testimony in this regard. Moreover, her testimony is consistent with the contemporaneous written report that she prepared regarding the incident and is further supported by the various steps she took subsequent to the encounter. These actions included immediately reporting the incident to an officer on duty and having him take down Respondent's license plate number and run a check on the plate. She also later identified Respondent in a photo line-up. I simply do not believe that Ms. Vasquez would have gone to the lengths that she did following this incident if she were not absolutely certain regarding the statement that was made to her by Respondent. Accordingly, notwithstanding Respondent's denials, I find that the evidence clearly established that he made the false statement that serves as the basis for the charges in Count I.
I further find that by making this misrepresentation regarding his identity to Ms. Vasquez, Respondent engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation in violation of rule 8.4(a)(4). Regardless of his particular motive or what he sought to gain, this was clearly an intentional and deliberate act. I also find that he violated Supreme Court Rule 770 by engaging in such deception, which reflects poorly on the legal profession as a whole. I find that the Rule 8.5(a)(5) charge, however, was not proven by clear and convincing evidence because there was no evidence that Respondent's actions caused any harm or prejudice to the case. See In re Storment, 203 Ill. 2d 378, 399, 786 N.E.2d 963 (2002); In re Vrdolyak, 137 Ill. 2d 407, 425, 560 N.E.2d 840 (1990).
Although I believe that this additional misconduct in Count I was established, I concur with the majority's recommendation regarding sanction. In light of Respondent's lack of any prior discipline as well as the extensive mitigation and other factors noted in the majority report, I believe that a censure is an appropriate sanction and will adequately address the goals of the disciplinary process.