Filed February 10, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
LAURA J. MORASK,
Commission No. 2010PR00136
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on September 26 and 27, 2011 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") Chicago, Illinois before a Hearing Panel consisting of John B. Whiton, Chair, Heather A. McPherson and Bernard Judge. Melissa A. Smart represented the Administrator of the ARDC. Respondent Laura J. Morask appeared and was represented by William J. Martin and Jean Maclean Snyder.
On August 31, 2010, the Administrator filed a four-count Complaint against Respondent. The first count alleged that Respondent, while campaigning for judicial office, made false and misleading statements regarding the disposition of a previous disciplinary matter that had been considered by the Inquiry Board of the ARDC. Counts two through four alleged that Respondent made improper statements in closing arguments in three criminal cases she prosecuted on behalf of the Cook County State's Attorney.
In her Answer to the Complaint, Respondent admitted making the statements at issue, but denied engaging in any professional misconduct.
Prior to hearing Respondent filed several motions regarding the Administrator's anticipated introduction of evidence relating to matters not addressed in the Complaint. Those matters involved Respondent's conduct in other cases she had prosecuted for the State's Attorney's office. By order of September 19, 2011, the Chair of the Hearing Panel granted Respondent's motion in limine with respect to the introduction at hearing of certain of the Administrator's proposed exhibits, but directed that those exhibits could be offered and considered in aggravation post-hearing should the panel find misconduct had occurred. Thereafter Respondent filed a motion for a bifurcated hearing. By order of September 23, 2011, the Chair reserved ruling on the motion but clarified that any post-hearing consideration of Respondent's conduct in cases not addressed in the Complaint would be predicated on the panel's finding of misconduct relating to Counts II, III and IV. The order also provided that evidence of aggravating or mitigating circumstances, other than the evidence regarding Respondent's prior cases, could be offered at hearing.
The Administrator called four witnesses, including two rebuttal witnesses, and presented thirteen exhibits which were admitted into evidence. Respondent testified on her own behalf, called six additional witnesses, and submitted ten exhibits that were admitted into evidence.
Respondent testified she has been an attorney with the Cook County State's Attorney's office since 1987 and has worked in various divisions of that organization. In 1998, she became the senior sex crimes trial specialist and in 2001, began working with the gang crimes unit. In June 2005, she became the deputy supervisor of preliminary hearings but continued to do some
trial work through the summer of 2009. Throughout Respondent's tenure at the State's Attorney's office, she has participated in and conducted training seminars, including seminars on ethics, capital litigation, and DNA. When training young attorneys in her office, she teaches from the perspective of age and experience. Respondent has also authored training materials and taught trial advocacy at local law schools. (Tr. 75-80, 84, 236-37, 241-47, 267-68).
Respondent testified that, as an Assistant State's Attorney, she has handled 160 jury trials. Of that number, she lost five or six cases. As to the cases she won, she estimated that at least 148 were appealed but only a handful were reversed. Respondent noted that the issue of prosecutorial misconduct in closing arguments is raised as an issue in almost every appeal. None of her cases have been reversed for other types of prosecutorial misconduct, such as failure to disclose evidence, suborning perjury, or giving rewards to a witness. Respondent believes she is regarded as one of the most reasonable attorneys in her building. (Tr. 248-52, 258-59).
With respect to closing arguments, Respondent stated that although prosecutors have extremely wide latitude, certain lines cannot be crossed and she has never been accused of crossing those lines. Other than the bright lines, the individual appellate opinions differ on guidance offered, and the guidance is constantly changing. In more recent years the appellate and reviewing courts have become stricter in terms of the parameters of closing argument. Conduct that was permissible in 1998 or 1999 may not have been proper a few years later, especially with respect to tone and the use of sarcasm. According to Respondent, the overriding rule is that the trial court is in the best position to ascertain whether or not there was a problem in closing argument. (Tr. 254-56, 262).
Respondent acknowledged that, beginning in May 2001, she was the subject of three separate investigations conducted by the Administrator relating to her conduct in three criminal cases. In each of the three cases, People v. Fluker, 318 Ill.App. 3d. 193, 742 N.E.2d 799 (1st Dist. 2000), People v. Moss, 205 Ill. 2d 139, 792 N.E.2d 1217 (2001), People v. Griffith, 334 Ill.App. 3d 98, 777 N.E.2d 459 (1st Dist. 2002), reviewing courts criticized remarks she made during closing or rebuttal argument. During the ARDC investigations Respondent was represented by counsel who drafted her responses based on information she provided and which she reviewed prior to submission. Respondent recalled appearing for a sworn statement during which she noted that the trials took place in 1998 and 1999, prior to the first appellate opinion being handed down in 2000. (Tr. 85, 88-92, 398).
In July 2005, Respondent learned from her attorneys that the three investigations were being referred to the Inquiry Board of the ARDC. The "Inquiry Referral Notice" referenced Commission Rule 102, which states that the Inquiry Board "shall determine whether there is sufficient evidence for the filing of a complaint or petition with the Hearing Board," and the Inquiry Board "shall not determine the merits of the charge or conduct adversary hearings." Respondent felt certain her attorneys apprised her of Rule 102 and its provisions. She acknowledged the Inquiry Referral Notice contained no further reference to a hearing. (Tr. 94-97, 100-102; Adm. Ex. 7).
On or about July 18, 2005, Respondent, through her attorneys, responded to the referral notice. Her response stated, in part, that she committed no intentional prosecutorial misconduct in the cases at issue and her remarks occurred prior to the first appellate opinion criticizing her conduct. She requested an opportunity to appear before the Board, and further requested that the
Board decline to vote a formal complaint against her. Respondent understood that the function of the Inquiry Board was to vote formal charges, and she analogized the process to that of a grand jury proceeding or preliminary hearing during which evidence is evaluated to determine if charges should be brought but no determination is made regarding innocence. (Tr. 96, 101-104, 106-108, 114; Adm. Ex. 8).
Respondent appeared before a panel of the Inquiry Board on December 13, 2005 and answered questions posed to her regarding the Fluker, Griffith and Moss matters. At that time she also disclosed another case in which her conduct had been challenged. Other than the information Respondent had previously tendered, no other evidence was presented. (Tr. 114-18).
On or about February 10, 2006, Respondent's counsel was notified by letter that the majority of the inquiry panel, after reviewing the investigations and considering Respondent's response and comments she made during her appearance before the panel, had concluded formal disciplinary proceedings were not warranted. Because the panel was concerned that Respondent's conduct during the criminal trials may have been inconsistent with the requirements of the professional rules, however, it admonished Respondent to review the rules, conform her future conduct to the requirements of the rules, and take steps to ensure that her future conduct is consistent with the rules. The letter also stated if the Inquiry Board received evidence of similar conduct by Respondent in the future, it could reopen the investigations for further review. (Tr. 120-22; Adm. Exs. 8, 9).
Respondent acknowledged receiving a copy of the letter, reading it and taking it to heart. Her attorney advised her that the letter was in the nature of a warning. During the two years following her receipt of the letter, she complied with the admonishment and no appellate opinions criticized her conduct. (Tr. 121, 358).
In 2008, Respondent became a judicial candidate in a contested race to fill a vacancy in the 12th sub-circuit of the Circuit Court of Cook County, which she believed was the largest sub-circuit. Prior to the general election on November 4, 2008, Respondent took a one-month voluntary leave of absence from the State's Attorney's office to avoid any appearance of impropriety or interference with her work. She testified the contested race took all of her time and she slept only a few hours each night. She acknowledged that her decision to campaign for judicial office was a voluntary one. (Tr. 149, 347, 350-53, 402).
On or about October 3, 2008, the Chicago Council of Lawyers (the "Council") issued a report evaluating the judicial candidates for the November 4, 2008 election. In its report, the Council found Respondent "not qualified," after noting she had been "cited numerous times by both the Illinois Appellate Court and the Supreme Court for prosecutorial misconduct." (Tr. 149, 153; Adm. Ex. 10).
Following the issuance of the Council's evaluation, attorney and internet blogger Jack Leyhane posted a link to the Council's report on his weblog. Shortly before the election Leyhane quoted the report verbatim along with the other evaluations and endorsements of Respondent. Leyhane testified he began his weblog, which is entitled "For What its Worth," in 2006 and has used it to provide information on judicial candidates. He has solicited submissions to his weblog from candidates and many, including Respondent, submitted statements. He denied he has campaigned for any specific candidate. (Tr. 41-44, 46-47, 53, 59).
In mid-October Respondent learned she had received a harsh evaluation but did not confirm that it came from the Council until October 24, 2008. She stated she was crushed by the news, as the evaluation was false and misleading. She objected to the Council's implication that she had failed to heed court opinions that cited her for prosecutorial misconduct, and stated she
disclosed the cases at issue on numerous occasions. Respondent distinguished between a finding of prosecutorial misconduct which she characterized as "the most shameful, horrible thing that can happen to a prosecutor" and criticism by a court, which happens all the time. With respect to the Council's statement that she had been cited for prosecutorial misconduct over a nine-year period, she described the statement as misleading and distorting, and denied it was true. (Tr. 153-57, 355-56).
On or about October 24, 2008, Respondent sent an e-mail to Leyhane in response to the Council's evaluation. She did not review the Rules of Professional Conduct prior to sending the e-mail, nor did she contact the attorneys who had represented her before the ARDC, or any other attorney. Respondent's e-mail stated, in part:
I am dumbfounded that the Chicago Council of Lawyers would be so dishonest and misleading to the voting public as to print their "conspiracy theory" as to why I did not participate in their ratings. The simple fact is that had they or anyone else asked or researched the truth about these accusations at all, they could find that I had a full and complete hearing in the ARDC, the board that regulates conduct and was completely cleared. The chronology painted by the Council of Lawyers is a complete lie and extremely misleading to the public to say an intentional pattern of misconduct occurred.
. . .
[A chronology of the cases investigated by the ARDC] demonstrates the simple fact that the three cases were prosecuted before the first opinion issued. In other words, I have never flouted any court ruling or admonishment. This fact was recognized by no less august a tribunal than the ARDC . . . .
At the end of her e-mail Respondent stated "I hope you will either edit and print [the e-mail] or feel free to use as a comment with my name attached." (Tr. 48-49, 52, 163, 357; Adm. Ex. 11).
When Respondent was asked to explain her comment that the ARDC recognized she never flouted any courtroom admonishment, she noted that the Chair of the Inquiry Panel recognized during her appearance before the panel that she had tried all three of the cases before receiving any court opinions. With respect to her statement that she had a "full and complete
hearing," at the ARDC and was cleared, she stated her appearance before the Inquiry Panel felt like a hearing, and in her mind she analogized the process to a grand jury preliminary hearing. She acknowledged her statement was wrong but stated she only mentioned the ARDC because she wanted to show she had never hidden her record or the three cases mentioned in the evaluation. She testified she voluntarily inserted negative information about herself into the public discourse because she felt sandbagged by the implication that she had tried to hide something. (Tr. 158, 163-64, 357, 362-63, 400).
With respect to Respondent's statement that anyone could research the truth of the accusations, she stated she was aware the proceedings before the Inquiry Board were confidential, although at the time she believed the confidence belonged to her, but she also knew anyone could use the ARDC website to research whether an attorney was in good standing, as she was, or whether an attorney had been previously disciplined. She stated she was referring to the latter type of search when she made the statement in her e-mail. (Tr. 123-24).
Respondent explained she wrote the e-mail to Leyhane in the heat of the moment at a time when she was very angry and upset. She felt she had been ambushed and wanted to correct a false impression, but acknowledged she misspoke and should not have involved the ARDC. Although her statements were false and inaccurate, she denied knowing they were false at the time she made them, denied they resulted from any thoughtful, deliberate action and denied that she intended to deceive anyone. She stated she acted impulsively and is mortified by her own stupidity at mentioning the ARDC. Respondent stated she would never write another letter to any blog or send anything in the heat of the moment. (Tr. 161-63, 357, 359, 362-63).
Jack Leyhane testified he had no reason to doubt the accuracy of the statements in Respondent's e-mail and on November 2, 2008 he posted a large portion of it, including the
above comments, in his weblog. He believed the e-mail is still accessible on the archive section of his weblog. Leyhane stated he subscribes to a service that reports the number of visits his weblog receives per hour each day. He identified a website traffic report which reflects the following number of visits to his weblog in early November 2008: November 1 - 219; November 2 - 216; November 3 - 905 and November 4 - 850. The recorded number of page views (times a visitor clicks from one page to another) for those dates were as follows: November 1 - 224; November 2 - 410; November 3 - 1,691; and November 4 - 1,565. Leyhane acknowledged that the page views could be for any page of the weblog and the numbers do not reflect whether a visitor to the site is a voter. He noted a spike in traffic that occurred at the time of the election, and a sharp drop-off in site visits after the election. (Tr. 52-58, 61-64, 72; Adm. Exs. 12, 13).
Respondent acknowledged that, when the Administrator opened an investigation regarding her statements in the e-mail and requested disclosure of any other cases in which her conduct may have been criticized, she provided a list which included additional cases aside from the six cases referenced in Counts I through IV of the Administrator's Complaint. When Respondent was later served with the Administrator's Complaint, she was notified that the investigation had been closed regarding the Griffith, Fluker and Moss matters. (Tr. 165, 409).
From August 24 to August 26, 2005, Steven Jackson was tried before a jury in the Circuit Court of Cook County on charges of home invasion and the first degree murder of Tonette Waters. Respondent, who prosecuted the case on behalf of the State of Illinois, testified that Jackson and three other men broke into the home of a twenty-five year old woman who lived with her two young children. After ransacking the home, Jackson and the others began to leave
but one of the men, Bushara Thomas, went back into the home, raped the woman and then executed her because she had seen him. The woman's five-year-old daughter witnessed the shooting and then fled the apartment with her younger brother. (Tr. 389-90).
At Jackson's trial, Respondent made the following statements during her closing argument in relation to the victim's daughter, Varielle, who had witnessed the crime:
What if Varielle had run out the door? Would they have shot her too? Yes, but they counted on the fact these little kids wouldn't be able to identify anybody, that the little girl would be small, so the one that had to be killed is Tonette Waters.
(Adm. Ex. 14).
When asked to explain her comments, Respondent testified that Jackson had admitted the home invasion but tried to disassociate himself with the killing of Waters. She advised the jury of the law of accountability, which holds each defendant responsible for any acts in furtherance of the common design, and explained that the defendants had a common design to invade a home, they brought along a gun and wore disguises, and Thomas executed Waters because his disguise fell off. Respondent testified the evidence further showed that if Thomas knew the young girl had seen him, she would have been shot as an eyewitness. Respondent noted that neither the trial judge nor defense counsel raised any objection to her comments, nor were the comments included in defendant's post-trial motions. (Tr. 392-93).
Jackson was found guilty of home invasion and first degree murder. Thereafter, he appealed his conviction alleging, among other things, that Respondent's arguments were so egregious they denied him a fair trial. On December 18, 2008, the Illinois Appellate Court issued an opinion concluding that Respondent's argument that the victim's daughter would have been shot had she tried to leave the apartment was "deeply troubling" "not based on facts in the record," and "inappropriate." People v. Jackson, No. 1-05-3927, slip op. at 28-29 (Dec. 18,
2008). The court upheld Jackson's conviction, but cautioned the prosecution to refrain from such speculation in the future. (Tr. 148; Adm. Ex. 15).
Respondent testified that, because the appellate court interpreted her comments as imputing future danger or other crimes to the defendant, she now would phrase her comments differently so as not to speculate or appear to speculate about another crime. She noted that while the appellate court criticized her comments, the comments were found to be harmless. (Tr. 394-95).
Respondent admitted she made the statements at the Jackson trial in August 2005 at a time when her conduct relating to the criminal cases mentioned in Count I (the Moss, Fluker and Griffith matters) was being considered by the Inquiry Board. She pointed out, however, that Jackson's trial occurred before she was actually admonished by the Inquiry Board. (Tr. 396).
Respondent stated that prior to being served with the Administrator's Complaint, she was never informed the ARDC was investigating her conduct in the Jackson case, or in the Burton and Davis cases referenced in Counts III and IV, and therefore never had a chance to have her lawyers file a response to any of the allegations in those cases. (Tr. 408).
On March 6, 1996, Sharon Burton was charged with the first degree murder of her daughter and in July 1999, Burton's case was tried before a jury. Respondent, who appeared on behalf of the State of Illinois in that matter, explained that Burton was prosecuted for accountability in relation to her live-in boyfriend's long-term ritualized abuse and murder of Burton's three-year-old daughter. (Tr. 365).
Respondent recalled that Burton's defense counsel argued the traumatic injuries to Burton's daughter were just "quirks," and the long-term abuse had been manufactured by the
prosecution. In presenting the rebuttal argument on behalf of the State, Respondent used the terms "Mother Theresa" and "June Cleaver" in reference to Sharon Burton, and also stated the defendants "make Joan Crawford look like Harriet Nelson." (Tr. 132-33, 368-69).
Respondent explained she made the rhetorical pop culture statements in the context of a very lengthy rebuttal, and in response to defense counsel's closing argument and cross-examination which painted Burton as "mother of the year" and downplayed the injuries to the child. She felt the comments were justified under the doctrine of invited comment. Further, she stated her remarks were made in the heat of the moment and at the end of an exhausting multi-day trial. When asked if her references to Mother Theresa and June Cleaver were sarcastic comments, she acknowledged they could be considered as sarcasm or irony. She stated her purpose was to draw a point, and to take defense counsel's argument to its logical conclusion to show the absurdity of it. Respondent noted defense counsel did not assert any objection immediately after her comments and, with respect to an objection asserted shortly thereafter, she did not believe the objection related to the comments in question because those comments were not included in defense counsel's motion for new trial. She further noted that the trial judge did not object or call her out for the comments. (Tr. 134-35, 263, 370-71, 401; Adm. Ex. 16).
Burton was convicted of first degree murder and thereafter appealed her conviction alleging, in part, that Respondent's arguments were so egregious they denied her a fair trial. On March 31, 2003, the Illinois Appellate Court issued an opinion which included the following comments regarding Respondent's references to Burton as "Mother Theresa" or "June Cleaver":
Though we do not condone the prosecutor's unnecessary use of sarcasm, ‘it is entirely proper for a prosecutor to denounce a defendant's wickedness, engage in some degree of invective, and draw inferences unfavorable to the defendant if such inferences are based upon the evidence.' [citations omitted]. The prosecutor was attempting to describe how Burton failed in her parental duty to prevent [her boyfriend] from harming [her daughter]. Given the undisputed graphic evidence
in the record, Burton could not be prejudiced by prosecutorial remarks that were not out of proportion to what the jury properly considered as evidence.
People v. Burton, 338 Ill. App. 3d 406, 788 N.E.2d. 220, 231-32 (1st Dist. 2003). The court reversed Burton's conviction on other grounds. (Adm. Ex. 17).
Respondent acknowledged the appellate court found her comments regarding Mother Theresa and June Cleaver to be an "unnecessary use of sarcasm," but pointed out it did not consider the remarks to be out of proportion to the evidence. Respondent stated she understands the court wants lawyers to tone down their rhetoric, and stated she has done so on a regular basis since receiving the first appellate opinion criticizing her conduct. She views herself as mellower now, and understands she can make comments in a calmer, more deliberate manner. (Tr. 136, 138, 372; Adm. Ex. 17).
On December 25, 1998, Willie Davis was charged with aggravated criminal sexual assault. Respondent testified the charges stemmed from the rape-kidnapping of a pre-med student at the Circle Campus of University of Illinois. (Tr. 373).
Between February 5, 2001 and February 9, 2001, Respondent appeared at Davis's trial on behalf of the State of Illinois and presented the opening and rebuttal arguments. During Respondent's rebuttal argument, she characterized defense witnesses as "nasty," "a jerk," "buffoons," and the worst and second-worst witnesses to cross the courtroom floor. She further made the following comments regarding the ability of the rape victim to properly identify the defendant and the location of a purported weapon:
[G]ive me a break, rape victim it's really tough to be a rape victim now because you don't describe the skull cap, describe it with the exact color and fiber content. Hold on a minute Mr. Rapist, I know that you're about to plunge your penis in me, but I think I need to take a picture of you so I won't get blamed later on in court for forgetting anything. Hold on Mr. Rapist, let me take a video of you so I won't call it five o'clock shadow versus a goatee.
* * *
[He] got rid of the book bag, which by the way has the knife in it.
(Tr. 374; Adm. Ex. 18).
As to her description of defense witnesses, Respondent testified that one of the witnesses had been extremely uncooperative, hostile and rude during cross-examination and had contradicted himself. The other witness was a defense attorney who, while testifying, violated the "advocate witness rule," injected inadmissible hearsay comments, disclosed photos that had never been tendered to the prosecution, and was, in Respondent's opinion, unprofessional and untruthful. Defense counsel objected to Respondent's use of the word "buffoons" and also objected after she made several statements about one of the witnesses, including referring to him as "nasty" and a "jerk." The objections were overruled. (Tr. 375-78, 401; Adm. Ex. 18).
As to the comments regarding the description of the rapist, Respondent stated she made the statements because defense counsel was holding the victim to an impossible standard of perfection in identifying the rapist. Defense counsel did not object to her statements. With respect to the comment regarding defendant's divesting himself of the book bag with the knife inside, Respondent testified the knife was not the type that would be carried around in a pocket and therefore her statement was a reasonable inference from the evidence. Defense counsel objected to the remark at the time it was made, but the objection was overruled. (Tr. 379-82, 401; Adm. Ex. 18).
Following Davis's conviction for kidnapping and aggravated criminal sexual assault, he appealed his conviction alleging, in part, that Respondent's arguments were so egregious they denied him a fair trial. On May 7, 2004, the Illinois Appellate Court issued an opinion affirming Davis's conviction. Regarding Respondent's comments about the two defense witnesses, the court stated that her characterization of them as "buffoons" was improper and "clearly exceeds
the bounds of proper comment based on the evidence." Her statement that they were the worst witnesses tended to express a personal opinion and were "if not clearly improper, at least highly questionable." People v. Davis, No. 1-01-1789, slip op. at 22 (1st Dist. May 7, 2004). Respondent noted the court found her "buffoon" remark did not result in substantial prejudice to the defendant. (Tr. 143; Adm. Ex. 19).
Respondent stated she was not aware if a court opinion had previously criticized an attorney for referring to a witness as a "jerk," but acknowledged an appellate opinion telling her to refrain from that conduct should not be necessary. On the other hand, she does not believe that criticism or name-calling rises to the level of prosecutorial misconduct. She admitted that calling a witness a "jerk" or a "buffoon" was unprofessional, but pointed out the witnesses were not present at the time she made the remarks. She distinguished her comments from a case in which a prosecutor called a defendant, who was present, a "murderous dog." She stated she would not make the same statements again and knows she has to tone down her arguments. (Tr. 383, 403-407).
As to Respondent's remark regarding the book bag with the knife in it, the appellate court stated:
"A prosecutor has the right to comment on the evidence and draw all legitimate inferences deducible therefrom, even if they are unfavorable to the defendant. [citation omitted]." The victim and other witnesses had testified that they saw defendant carrying a book bag, but he was not carrying it when he was arrested. Clearly a legitimate inference from these two facts is that defendant "got rid" of the book bag, or, as the State argued, left it in a locker or in a room at a homeless shelter. A logical corollary to that inference is that the police failed to find the knife used during the attack on defendant's person because he had hidden it in the missing book bag. Therefore, we conclude that this argument by the State was not improper.
People v. Davis, slip op. at 15. Respondent stated if she had to make the argument again, she would preface her statement by saying the evidence has shown a reasonable and logical inference that the defendant placed the knife in the book bag. (Tr. 384, Adm. Ex. 19).
Regarding Respondent's comments about the rape victim, the appellate court stated:
We believe that this argument was clearly intended as a response to defense counsel's argument that the victim's identification was unreliable because it contained several discrepancies in its details. We are troubled, however, by the sarcastic tone of this comment. We question whether sarcasm even if an effective rhetorical technique, ever has a place in a prosecutor's closing arguments. Nevertheless, although we do not necessarily approve of this argument, we can not conclude that it exceeded the bounds of proper argument.
People v. Davis, slip op. at 21. Respondent agreed her comments regarding the victim's ability to identify her attacker were sarcastic, but emphasized the court found the comments were invited by the defense. If faced with the same situation, she would tone down her rhetoric. (Tr. 140, 382, 384; Adm. Ex. 19).
Respondent testified that Davis's conviction was ultimately overturned on other unrelated grounds. (Tr. 143, 378).
Evidence Offered in Mitigation
Respondent has served as a Maine Township trustee since 2001. In that position, she votes on the allocation of money to social service agencies and serves on various committees. (Tr. 269-71).
Respondent testified she regularly donates to and sponsors an individual in the Avon Breast Cancer Walk. She also sponsors or contributes to a Park Ridge youth center, a Park Ridge foundation that preserves historic places, a Maine Township camp for disadvantaged children, the American Heart Society, and other civic and social clubs. She is also active in her children's schools. (Tr. 349).
In 1994, Respondent received an award for service to the American Constitution. She has also received a Victim Service Award presented by the State's Attorney's office, and an award from the National District Attorneys Association for professionalism in teaching. (Tr. 385-86).
Richard Devine, a lawyer in private practice, testified he served as the Cook County State's Attorney from 1996 to 2008. He stated that if court opinions mentioned a prosecutor's conduct, the supervisors discussed those opinions with the assistant state's attorneys. He testified he appeared before the Illinois Supreme Court in one of Respondent's cases to point out the very low percentage of cases that have been reversed for prosecutorial misconduct. (Tr. 184, 192).
During Devine's tenure as State's Attorney, he became familiar with Respondent's work and knew her to be one of the most experienced prosecutors in the office. He described her as being truthful, hard working and aggressive within the context of professionalism. Devine believes Respondent has a good reputation for honesty, integrity and veracity in the legal community and the allegations in the Administrator's Complaint do not change his view, nor does Respondent's admission that she made a false statement that appeared in a weblog. (Tr. 186-90, 193).
Kenneth Wadas, a judge in the Cook County Criminal Division since 1996, testified he met Respondent in 1985 or 1986 when he was an attorney with the Cook County State's Attorney's office. He has presided over three jury trials prosecuted by Respondent. (Tr. 195-98).
Judge Wadas testified Respondent's reputation for honesty and integrity is beyond reproach. He described her as truthful, straightforward, and a role model for younger assistant state's attorneys, and he believed her reputation among that group is sterling. The Administrator's Complaint does not change Judge Wadas's opinion of Respondent's honesty and integrity. Judge Wadas agreed that judicial candidates have to abide by the Code of Judicial Conduct and to be honest regarding their qualifications. If Respondent admitted to making false statements in a weblog, those admissions would not change his opinion of Respondent. (Tr. 199, 202-203).
Judge Wadas recalled that in or about 1980 while he was at the State's Attorney's office, he was criticized in a court opinion for referring to an individual as a "murdering dog." (Tr. 200-201).
George Grzeca, an attorney, testified he served as a Cook County Public Defender for thirty years. He has known Respondent since approximately 1985 and has tried cases against her. Grzeca stated Respondent is a truthful, honest and forthright attorney and the Administrator's Complaint does not change his opinion of her. (Tr. 205-208).
Laurie Smith, a licensed clinical social worker, testified she currently serves as the Director of Victim Witness in the Cook County State's Attorney's office. Prior to that assignment, she spent thirteen years with the sex crimes unit providing assistance to victims of sex crimes. Smith met Respondent in 1997 or 1998 when Respondent was a special prosecutor for the sex crimes unit, and they worked together for about eighteen months. (Tr. 211-14).
Smith has spoken to other attorneys in the office and stated they regard Respondent as very honest, a person of utmost integrity, and a zealous prosecutor. The Administrator's Complaint does not change Smith's opinion of Respondent. (Tr. 215-17).
William Murphy, an attorney specializing in criminal defense, testified he has known Respondent for twenty to twenty-five years and has tried at least three cases against her. Murphy testified Respondent has the highest reputation for honesty and integrity, and he would believe anything she told him. Nothing in the Administrator's Complaint changes Murphy's opinion of Respondent. (Tr. 218-24).
Gregory Jacobson, a homicide detective with the Chicago Police Department, testified he works primarily with gang-related homicides. He met Respondent in 2000 or 2001 and has spoken to other detectives about her. Jacobson testified Respondent is known for being very helpful to police officers, having a deep concern for victims, and having an unparalleled reputation for truth and veracity. The Administrator's complaint does not change his opinion of Respondent. (Tr. 414-19).
Evidence Offered in Rebuttal
Elizabeth Botti, an attorney, testified she worked as an Assistant Appellate Defender from 2001 until 2010 and in that capacity, she served on the Prosecutorial Misconduct Committee. The purpose of the committee was to create a searchable data base of cases in which prosecutors were alleged to have committed misconduct or were found to have committed
misconduct by reviewing courts. Botti stated that Respondent's name was in the data base with respect to at least four cases. (Tr. 314-15, 319).
After speaking with other attorneys at the Appellate Defender's office about Respondent's reputation for truth and veracity, reading transcripts, and reviewing appellate opinions, Botti is of the opinion Respondent is a prosecutor who repeatedly engages in misconduct, primarily during closing argument, such as using inflammatory rhetoric, misstating the evidence and accusing the defense of misconduct. Botti acknowledged she has never tried a case herself, and has never met Respondent. (Tr. 316, 320).
Botti stated she represented Willie Davis in the appeal of his conviction and she recalled raising the issue of Respondent's conduct. Because the Illinois Appellate Court did not discuss the alleged misconduct with specificity, the Illinois Supreme Court issued a supervisory order directing the appellate court to address the issue. Davis's conviction was not reversed at that time, but was later reversed on the basis of ineffective assistance of counsel. (Tr. 317, 323-25).
Harold Winston, an attorney, testified he has been employed by the Cook County Public Defender's Office since April, 1991 and currently serves as a supervisor in the Legal Resources Division. Based on discussions with other attorneys, Winston stated Respondent has a poor reputation for truth and veracity. (Tr. 328-29, 332, 344).
Winston testified he served as second Chair at the trial of Evan Griffith and subsequently filed a post-trial motion based primarily on prosecutorial misconduct. He also argued the issue to the Illinois Appellate Court and the Illinois Supreme Court. Because Winston believed Respondent made repeated false statements in the Griffith matter, he reviewed transcripts of her rebuttal arguments in other cases and then prepared a motion in limine regarding Respondent's
use of sarcasm, attacks on defense counsel and suggestions of future violence by defendants. The motion was intended for use in future cases in which Respondent was presenting a rebuttal argument. (Tr. 333-36).
The Administrator stipulated at hearing that Respondent has not been the subject of any prior orders of discipline.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390, 393 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991). Suspicious circumstances, standing alone, are not sufficient to warrant discipline. In re Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961 (2006).
The allegations of Count I stem from statements made by Respondent in an October 2008 e-mail to internet blogger Jack Leyhane. The statements were made during Respondent's judicial campaign in response to Leyhane's internet posting of the Chicago Council of Lawyers' negative evaluation of Respondent. With respect to the Council's comment that Respondent had not participated in the Council's rating process because she had been cited in court opinions for prosecutorial misconduct, Respondent represented to Leyhane that
- she had a full and complete hearing before the ARDC;
- she was completely cleared by the ARDC;
- research would have revealed the outcome of the ARDC proceedings;
- the ARDC recognized she had never flouted any court ruling or admonishment.
At Respondent's suggestion, Leyhane posted her statements on his weblog.
The Administrator alleged that Respondent's statements in her e-mail to Leyhane were inaccurate. She was charged with making a misleading statement about herself or her services, failing to comply with the Code of Judicial Conduct, engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, engaging in conduct which is prejudicial to the administration of justice, and engaging in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute.
The evidence presented to us, including Respondent's own acknowledgements, established that the statements at issue were indeed inaccurate and misleading. Specifically, Respondent did not have a full and complete hearing before the ARDC, nor was she "completely cleared" by the ARDC. Rather, pursuant to Commission Rule 102 her conduct was investigated by a panel of the Inquiry Board to determine if the matter should be referred to the Hearing Board for a full and complete hearing. Although the Inquiry Panel determined that formal disciplinary matters were not warranted, it expressed a concern that Respondent's actions were not consistent with the professional rules, and therefore admonished her to review the rules and conform her future conduct to them. The panel's admonishment was clear and directly contradicts Respondent's claim she was "completely cleared."
Respondent's statement that anyone could have conducted research to learn of the ARDC proceedings was also inaccurate because the Inquiry Board proceedings and records are confidential. Therefore, a search of the ARDC website would not reveal any investigation or disposition of a matter by the Inquiry Board. Finally, nowhere in the February 10, 2008 letter from Administrator's counsel to Respondent regarding the Inquiry Board's decision was there any mention or recognition that Respondent had not flouted any court ruling or admonishment.
Because Respondent's statements were erroneous, we find she made misleading communications about herself in violation of Rule 7.1 of the Illinois Rules of Professional Conduct. We do not find, however, that she engaged in dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). She explained to us that she made the statements at issue toward the end of her judicial campaign at a time when she was experiencing high stress and time pressures. She was upset by the allegations in the Council's report, which she felt were unjustified and wrong, and knew she had less than two weeks before the election. By her own admission, she made the statements in her e-mail without consulting the ARDC rules or any attorney. Instead, she appears to have relied on her recollection of the proceedings, which did involve her appearance and testimony before the Inquiry Board, as well as the fact that no actual discipline was imposed. She further explained that her reference to conducting research was based on her understanding that anyone could check the ARDC website to learn that she had never been disciplined, and her statement that the ARDC recognized she had not flouted any court ruling or admonishment was based on verbal statements made by one or more panel members when she appeared before them.
Respondent's explanations ring true to us and therefore we do not find she engaged in any purposeful effort to deceive Leyhane or his blog followers. Rather, we believe that in attempting to exculpate herself from eleventh-hour accusations which she believed were unjust, she acted in haste and mistakenly relied on her own perception of the Inquiry Board proceedings instead of consulting her attorney or examining her records. The fact she invited research of her ARDC record and encouraged Leyhane to publish her e-mail, with her name attached, further indicates to us that she believed her statements to be accurate. We see no reason why she purposely would have set herself up for the charges that eventually ensued.
We also do not find any violation of Rule 8.2(b) which states that a lawyer who is a candidate for judicial office shall refrain from conduct which, if the lawyer were a judge, would be a breach of the Code of Judicial Conduct. The relevant provision of the Code of Judicial Conduct (Rule 62, Canon 2) states that a judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. We have no evidence that Respondent's attempt to correct a misimpression, as she understood it, was disrespectful or not in compliance with the law, or that her statements in the e-mail with respect to ARDC proceedings would detract from the public's perception of the impartiality of the judiciary. The integrity of the judiciary, on the other hand, would clearly be called into question by the submission of inaccurate statements for publication on the internet if those statements were made intentionally. We have found that the statements were not purposefully deceptive, however, and therefore we do not find that Respondent's conduct would negatively impact the public's confidence in the integrity of the judiciary.
Finally, we find the Administrator did not prove by clear and convincing evidence that Respondent's conduct was prejudicial to the administration of justice in violation of Rule 8.4(a)(5) or that her conduct tended to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770. To prove a violation of 8.4(a)(5), there must be clear and convincing evidence that the administration of justice was, indeed, prejudiced. In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840 (1990). In this case we simply do not know what effect, if any, Respondent's statements had on the voting public. Although we were provided with evidence that viewership of Leyhane's weblog spiked after the posting of Respondent's e-mail, we have no way of knowing if the site visits focused on the
information regarding Respondent, nor do we know whether the increase in traffic was triggered by that information as opposed to the immediacy of the election in general. We do know, however, that Respondent gained no personal advantage from the posting of her e-mail, as she lost the judicial election by a considerable margin. With respect to any damage Respondent's conduct may have caused to the reputation of the courts or legal profession, we do not believe any adverse effects were shown nor do we find that her statements, which were without dishonest intent, were so egregious as to reflect negatively on the legal community.
Counts II through IV1
Counts II through IV alleged that Respondent, while prosecuting felony cases on behalf of the State of Illinois, made improper statements during her closing or rebuttal arguments. With respect to Count II, during the trial of Steven Jackson Respondent stated in her closing argument that the young daughter of the murder victim would have been shot if she had attempted to leave the apartment where the crime occurred. Defense counsel did not object to the statement at the time it was made, nor was any corrective action taken by the trial judge. Respondent believed her statement regarding the daughter was a fair comment regarding events that would have ensued had the little girl, like her mother, been able to identify any of the men. She denied she was commenting on the defendant's future dangerousness or trying to impute other crimes to him, although she conceded the statements were interpreted that way by the appellate court.
Count III involved remarks made by Respondent during her rebuttal closing argument in the trial of Sharon Burton. Respondent referred to Burton, who was charged with the murder of her own daughter, as "Mother Theresa" and "June Cleaver." At the time Respondent made the statements, defense counsel posed no objection to the comments nor did the trial judge caution Respondent to refrain from making similar statements.2 Respondent testified she was attempting
to combat the defense counsel's portrayal of Burton as a good mother and, to convey her message, she used references which she acknowledged were sarcastic in nature. She felt her comments, which were made in the heat of the moment, were justified under the doctrine of invited comment.
Count IV, involving the trial of Willie Davis for aggravated criminal sexual assault, alleged that during Respondent's rebuttal closing argument she referred to defense witnesses as "nasty," "a jerk" and "buffoons, and the worst and second-worst witnesses to cross the courtroom floor;" stated that the crime weapon was in a book bag discarded by the defendant; and made sarcastic comments regarding the ability of a rape victim to accurately identify her attacker. At trial, defense counsel posed objections to some, but not all of the comments at issue. The objections that were raised were overruled. Respondent advised us that her statements regarding the witnesses were in response to their testimony and demeanor on the stand, and were not intended as name-calling. She further noted that the witnesses were not in the room at the time she made her remarks. Likewise, she maintained that her comments regarding the identification of the rapist were responsive to defense counsel's attempts to hold the rape victim to a standard of complete accuracy in identifying her attacker. With respect to Respondent's statement that the knife used in the attack was in the discarded book bag, she believed she was drawing a reasonable inference from the evidence which showed that both the knife and book bag were missing.
As to each of the foregoing counts of the Complaint, the Administrator charged that Respondent alluded to a matter she did not reasonably believe was relevant in violation of Rule 3.3(10); breached her duty as a public prosecutor to seek justice and not merely to convict in violation of Rule 3.8; used means that have no substantial purpose other than to embarrass,
delay, or burden a third person in violation of Rule 4.4; engaged in conduct which is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and engaged in conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.
After listening to the testimony and reviewing the evidence and relevant case law, we concluded that the Administrator failed to prove the foregoing charges by clear and convincing evidence. The following considerations were fundamental to our decision and pertain to each count, unless otherwise noted.
The Administrator emphasized to us, and we agree, that our task is not to evaluate Respondent's remarks by the standard used in criminal cases to determine whether prosecutorial misconduct deprived a defendant of a fair trial. Rather, we view Respondent's comments within the context and parameters of the foregoing professional rules and decide whether those rules have been violated. We recognize, however, that disciplinary case law in this area is scarce, and therefore prosecutors primarily look to criminal cases for guidance in their conduct. In that regard, it is well established that while prosecutors are given "wide latitude" in making their closing arguments, their comments must be based on the facts in evidence or upon reasonable inferences drawn there from, and cannot serve simply to inflame the passions or develop the prejudices of the jury. People v. Williams, 181 Ill. 2d 297, 692 N.E.2d 1109, 1126 (1998); People v. Wheeler, 226 Ill. 2d 92, 871 N.E.2d 728, 745, 748 (2007). Respondent does not dispute the foregoing limitations on the latitude given to prosecutors, or that she knew those limitations at the time she made her arguments. The Supreme Court has also observed, however, that "[t]he wide latitude extended to prosecutors during their closing remarks has been held to
include some degree of both sarcasm and invective to express their points." People v. Banks, 237 Ill. 2d 154, 934 N.E.2d 435, 451 (2010).
In reviewing both the disciplinary and criminal case law, we found no bright lines to advise us whether the particular comments made by Respondent were improper or unprofessional. While some remarks are so obviously insulting or prejudicial that they cry out for corrective action, less offensive comments that warrant criticism by the court, but no action, are difficult for us to judge. This is especially true when we have to rely on cold transcripts to inform our analysis. The trial transcripts assisted us in placing Respondent's remarks in the proper context but, as with any lifeless record, we were at a disadvantage in not being able to evaluate Respondent's tone or demeanor, or to judge the overall atmosphere of the courtroom. All of those circumstances were apparent to both the trial judge and defense counsel, however, and those individuals were in the best position to evaluate the validity of Respondent's remarks. We note that other than a couple of objections posed in the Davis matter, which objections were sustained, Respondent's comments drew no response from defense counsel. Likewise, none of the remarks triggered any intervention from the trial judges. That circumstance was telling to us.
We also gave substantial weight to Respondent's own explanations for her phraseology. Under Rule 3.3 we must consider whether Respondent had a "reasonable belief" that her statements were relevant and under Rule 4.4 we look at the "substantial purpose" of her tactics. An examination of the reasoning behind Respondent's statements is also germane to the question of whether she was seeking justice, as opposed to mere convictions, pursuant to Rule 3.8.
As to the Jackson matter (Count II), we do not disagree with the appellate court's concern over Respondent's remark regarding the hypothetical shooting of the murder victim's young daughter. Having listened to Respondent's testimony and having read the transcript of her
argument, however, we accept her explanation that she was commenting on the evidence that the victim was murdered because she had seen the shooter and likewise, any eyewitness would have met a similar fate. The statement was made in the context of her attempt to establish Jackson's accountability for the actual murder by pointing to his role in wearing disguises and bringing a gun to the scene. Because we conclude Respondent had a reasonable belief that her statement was relevant to the reason the murder occurred, we find it did not fall outside the realm of acceptable conduct under the language of the rules."
In the Burton (Count III) and Davis (Count IV) matters, Respondent's claim that she was responding to the evidence and arguments made by defense counsel was supported by our reading of the witness testimony and defense arguments in those cases. As to Burton, defense counsel did, indeed, portray Burton as a loving, caring and protective mother who looked out for her children. Responding to that image was not only relevant, but critical to Respondent's case. Similarly, we believe Respondent had a reasonable belief as to the relevance of her comments in the Davis case regarding the credibility of witnesses, the fact that a knife might have been in a missing book bag, or the difficulty a victim has in perfectly identifying an attacker. As to all three of the cases, the evidence did not establish that Respondent had no substantial purpose other than to embarrass or burden the defendants, or anyone else, or that her overarching design was to seek convictions rather than justice.
The Administrator directed our attention to two Illinois cases where attorneys who made improper remarks during the prosecution of a criminal case were found to have violated the professional rules.3 In In re Garza, 86 CH 21, M.R. 4206 (Apr. 6, 1987), the attorney was censured for engaging in misconduct while representing the Cook County State's Attorney's office at the sentencing hearing of a defendant convicted of murder. The attorney engaged in a
highly objectionable cross examination, referred to a defense witness as a "liar" and a member of the oldest profession known to man, loudly repeated an obscenity in front of the jury, called defense counsel names, used profane language at sidebars, and speculated as to what might occur if the defendant were not sentenced to death. On the defendant's appeal of his conviction and death sentence, the Supreme Court found that the prosecutor's conduct deprived the defendant of a fair sentencing hearing and therefore vacated the death sentence and remanded the matter for new sentencing.
The second case brought to our attention was In re Current, 08 SH 34, M.R. 22811 (Jan. 20, 2009) in which the attorney was censured, on consent, for making a highly emotional, improper closing argument in the course of prosecuting two defendants for murder. The consent petition includes more than four pages of comments made by the attorney, including accusing defense counsel of submitting misleading and/or inaccurate evidence and unfairly grilling a prosecution witness; stating a personal opinion about the credibility of a witness; making sarcastic comments regarding defense counsel's position, and alluding to irrelevant matters. The attorney's conduct ultimately led the Supreme Court to reverse the convictions of both defendants.
We find the conduct in Garza to be much more pervasive and damaging than Respondent's conduct in the cases at issue here. While Garza's comments persisted throughout the trial, we were presented with isolated comments in the context of lengthy closing arguments. Although the improper conduct in the Current case was limited to closing argument, the comments were more extensive than Respondent's comments and, in particular, the attorney's implication that defense counsel had purposely submitted improper evidence was inexcusable and highly prejudicial. We also note that in both Garza and Current, the attorneys' conduct
played a crucial role in the reversal of the defendants' convictions. In contrast, while Respondent's comments were cited by the reviewing courts in each of the three cases at issue, the comments were not a factor in the ultimate disposition of the cases.
As we stated at hearing, counsel for the Administrator and Respondent are both to be commended for their presentations and arguments in a difficult case. We do not wish to minimize Respondent's conduct, nor do we dismiss the possibility that the use of sarcastic remarks or demeaning language could constitute a violation of the professional rules in other circumstances. In the cases before us, however, we simply do not believe Respondent's comments crossed the threshold of propriety as outlined in the rules that were charged. Our conclusion is bolstered by the paucity of objections from defense counsel, by no adverse rulings from the trial court judges, and by the convictions upheld by the appellate court.
Having considered the foregoing, we find the Administrator failed to proved by clear and convincing evidence that Respondent violated Rules 3.3(a)(10), 3.8 or 4.4. We further find the Administrator did not prove that Respondent's conduct was prejudicial to the administration of justice in violation of 8.4(a)(5) or that it tended to defeat the administration of justice or bring the courts or the legal profession into disrepute in violation of Rule 770. We are aware that the appellate courts were required to devote time to reviewing Respondent's conduct, as is typical in criminal appeals where the defendants often raise issues of prosecutorial error, but as noted previously, Respondent's conduct was not determined to be a cause for overturning any of the convictions.
In light of our findings with respect to Counts II through IV, we recommend those counts be dismissed. As to Count I, we found that one of the charges was proved and therefore we must
determine the appropriate discipline warranted by that misconduct. In so doing, we consider the goal of these proceedings which is not to punish but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300 (1993). Attorney discipline also has a deterrent value in that it impresses upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906 (1994)."
In arriving at the appropriate discipline we consider those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill. 2d 380, 583 N.E.2d 526, (1991). In mitigation we consider Respondent's lack of prior discipline, her involvement in community activities, and the fact that she fully cooperated in the proceedings. See In re Clayter, 78 Ill. 2d 276, 399 N.E.2d 1318 (1980). With respect to the character testimony, we give substantially more weight to the numerous witnesses who testified on Respondent's behalf, including a judge, two defense attorneys, and non-attorneys who had worked with her in various capacities, than to the attorneys from the Public Defender's office and the Appellate Defender's office who had raised issues of Respondent's conduct in cases they handled.
An attorney's acknowledgement of his misconduct and expressions of regret, or lack thereof, are also factors that we can consider. In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003). Respondent has admitted that her statements in the e-mail to Leyhane were inaccurate, and further stated at hearing that she was mortified by her behavior. We found Respondent to be a credible witness and were persuaded that she regrets having acted in haste without verifying her statements.
We also take into consideration the fact that Respondent engaged in an isolated act of misconduct rather than a pattern of bad behavior. See In re Enstrom, 104 Ill. 2d 410, 472 N.E.2d
446 (1984) (Court found an isolated act of misconduct was a significant factor in determining discipline). We further note that her misleading communication was made to an internet blogger at the tail end of a hotly contested campaign and in response to information she perceived to be unfairly damaging to her. Although those circumstances do not excuse her action, neither do we believe we should judge her statements as harshly as misleading communications made to a client or to a court of law.
In aggravation, we may consider any harm or risk of harm that was caused by Respondent's conduct. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care"). As previously stated, we heard no evidence that Respondent's statements in her e-mail to Leyhane had any impact on the outcome of the election. We do not doubt, however, the possibility that voters could have been swayed by her statements, especially her claim that she had been cleared of any misconduct. We believe that risk was relatively small, however, in view of the Council's overall negative recommendation and the strong statements contained in its evaluation."
The Administrator has urged us to recommend a suspension of sixty days. That suggestion was premised on the assumption we would find all of the charges in the Complaint proved, which we have not done. We have, in fact, found only that Respondent made a misleading communication regarding herself or her services in violation of Rule 7.1.
The Administrator directed our attention to In re Bourgeois, 01 CH 97, M.R. 19087 (Jan. 2004) where the attorney was charged with providing false information on his application for appointment to judicial office. The Hearing and Review Boards found that Bourgeois failed to disclose information requested on the application, namely that he had defaulted on student loans;
he was a party to several litigation matters; he was the subject of pending ARDC investigations; and he had been held in contempt on two occasions. Both boards concluded his statements were intentionally dishonest and recommended a suspension of six months. The Supreme Court reduced the suspension to two months but because it gave no reason for changing the sanction, we cannot know if it disagreed with the findings of the Review Board or merely thought the misconduct deserved a lesser sanction. At any rate we regard the false statements made by Bourgeois, which statements were specifically intended for submission to and consideration by bar association representatives and judges, as more deliberate and blatant than the statements made by Respondent to an internet blogger. Similarly, we find the intentional dishonesty in In re Engelman, 99 SH 29, M.R. 16242 (Jan. 24, 2000) separates that case from the present one.
We also consider the following cases which involve violations of Rule 7.1. In In re Schwartz, 98 CH 93 (Dec. 17, 1999) the attorney sent a letter to prospective clients in which he made false statements regarding his experience and qualifications. The Hearing Board reprimanded the attorney for violating Rule 7.1 and making a misrepresentation in violation of Rule 8.4(a)(4). In In re Demuth, 2011PR00122, M.R. 24908 (Nov. 17, 2011) the attorney's misconduct included authorizing his law firm to state on its website that he represented clients during a time in which his license to practice law had been suspended and/or was inactive. The attorney was reprimanded for making a misleading communication regarding his services, as well as engaging in dishonesty and engaging in the unauthorized practice of law.
The Court has stated on numerous occasions that it endeavors to achieve uniformity in imposing discipline, but also considers each case on its own merits. In re Imming, 131 Ill. 2d 239, 545 N.E.2d 715 (1989). Based on the facts in the case and our review of applicable precedent, we conclude a reprimand is the appropriate sanction for Respondent's misconduct. In
our opinion, Respondent does not pose any threat to the public and therefore should not be removed from practice. Although she erred in failing to verify information she anticipated would be published on the internet, her misconduct was limited to one incident. Moreover, she did not engage in any intentionally deceptive misconduct, she has acknowledged her error, and she has not been previously disciplined. Under the circumstances, we are confident a reprimand will protect the public and remind attorneys of their professional obligation to provide accurate information about themselves and their services.
Accordingly, and for the reasons stated, we recommend that Respondent Laura J. Morask be reprimanded. A copy of the proposed reprimand is attached.
Date Entered: February 10, 2012
|John B. Whiton, Chair, Heather A. McPherson and Bernard Judge, Hearing Panel Members.|
1 As noted at the beginning of this Report, the Chair of the Hearing Panel ruled that certain exhibits could be offered by the Administrator in aggravation only if the panel found misconduct as to Counts II, III or IV. Because of that evidentiary circumstance and the possibility of further proceedings, the panel deliberated immediately after the conclusion of closing arguments and then reconvened to advise the parties of its determination that the charges of Counts II, III, and IV had not been proved by clear and convincing evidence. Although the parties have already been apprised of our findings, we take this opportunity to expand on the reasons for our decision.
2 A defense objection moments later appeared to be directed only to Respondent's subsequent statement that Burton should be held accountable for murder because she lied to persons who were trying to save her daughter's life. That objection was overruled.
3 The Administrator also cited two cases from other jurisdictions, but we cannot derive any real guidance from those cases since the conduct was more offensive and more damaging than in the present case. In In re Abbott, Del. No. 676, (May 2, 2007) the Delaware Supreme Court publicly reprimanded an attorney for submitting appellate briefs to the Delaware Superior Court that contained inflammatory and offensive comments, including claims that the attorney's opposing counsel illicitly swayed an administrative board with fabricated legal grounds, submitted a
fictionalized account of the hearing, misrepresented the board's decision, and submitted "ridiculous" arguments. The attorney also referred to potential members of a licensing and review board as "monkeys" and "ape members" and implied that the appellate court would decide his case based on potential bias or prejudice against his client. The Court found that the attorney engaged in discourteous conduct degrading to a tribunal by implying that the Court had a bias or prejudice against his client, and engaged in conduct prejudicial to the administration of justice because his offensive and sarcastic language forced the court to waste precious judicial resources on excising the offensive language and then writing an opinion explaining its actions.
In In re Zawada, 208 Ariz.232, 92 P.2d 862 (2004) the attorney, during the prosecution of a murder case, accused an expert witness of reaching a conclusion of insanity only after being hired by the defense, and asserted during rebuttal argument that defense counsel paid the expert to fabricate a diagnosis. Because of the attorney's misconduct, the defendant's conviction was reversed on appeal. In a subsequent disciplinary case, the court described the attorney's acts of "attack[ing] the experts, their profession and credibility through disingenuous, baseless argument and cross-examination" as deliberate, gross misconduct. Zawada, who was hostile and refused to cooperate in the disciplinary proceedings, was suspended for six months and one day, with conditions.
Filed February 10, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
LAURA J. MORASK,
Commission No. 2010PR00136
To Laura J. Morask:
You are being reprimanded by the Hearing Board of the Attorney Registration and Disciplinary Commission as follows:
As detailed in the Hearing Board Report and Recommendation, while campaigning for judicial office you made misleading statements to an internet blogger regarding the disposition of a prior ARDC matter. Specifically, you erroneously stated you had a full and complete hearing before the ARDC; you were completely cleared by the ARDC; anyone could research the matter and learn the outcome of the ARDC proceedings; and the ARDC recognized you had never flouted any court ruling or admonishment. At your suggestion, your statements were published on the internet.
Your conduct violated Rule 7.1 of the Rules of Professional Conduct.
You have not been previously disciplined, you did not engage in any intentionally dishonest act, and you fully cooperated in these proceedings.
The Hearing Board has authority pursuant to Supreme Court Rule 753(c) and Commission Rule 282 to administer a reprimand to an attorney in lieu of recommending disciplinary action by the Court, and the Hearing Board has determined such action is appropriate in this case.
You are hereby reprimanded and admonished not to repeat the misconduct outlined in the Report and Recommendation.
You are further advised while this reprimand is not formally presented to the Supreme Court, it is not to be taken lightly. This reprimand is a matter of public record, is on file with the Attorney Registration and Disciplinary Commission and may be admitted into evidence in subsequent disciplinary proceedings against you.
Date Entered: February 10, 2012
|John B. Whiton, Chair, Heather A. McPherson and Bernard Judge, Hearing Panel Members.|