BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 2011PR00061
FILED - June 13, 2011
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Lea S. Black, pursuant to Supreme Court Rule 753(b), complains of Respondent, Sean M. Malatesta, who was licensed to practice law in the State of Illinois on May 7, 1998, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:
(Criminal Conviction for Attempted Sexual Intercourse with a Minor)
1. In 2003, Respondent was residing in Marina del Ray, California.
2. For several days prior to December 16, 2003, Respondent communicated with a female individual, C.G., on the internet. On December 15, 2003, Respondent and C.G., agreed to meet the following day, and decided on a Walgreens store near C.G.'s home in Torrance, California, as the location for their meeting. C.G. informed Respondent that she would wear a pink dress so that he would be able to identify her.
3. On December 16, 2003, Respondent met with C.G. at the Walgreens store. Upon meeting C.G., due to her youthful appearance, Respondent knew or should have known that C.G. was under the age of 18.
4. Respondent and C.G. exited the Walgreens together and entered Respondent's vehicle. Respondent and C.G. then stopped at a fast food drive-through, where C.G. purchased some food. Shortly thereafter, Respondent and C.G. parked Respondent's vehicle in an isolated parking lot and began engaging in a sexual act.
5. On December 16, 2003, Los Angeles Sheriff's Department Officer Daryl L. Williams observed Respondent's automobile parked in an isolated area. Officer Williams pulled his vehicle in behind Respondent's vehicle and observed Respondent and C.G. in the back seat of Respondent's vehicle. Officer Williams approached Respondent's vehicle and observed Respondent and C.G. hurriedly attempting to replace their clothing. Officer Williams observed Respondent trying to pull up his pants to cover his exposed penis, and C.G. attempting to pull down her dress. C.G.'s panties were in the backseat area of Respondent's vehicle.
6. Officer Williams immediately observed that C.G.'s physical appearance was that of someone younger than 18 years of age. Officer Williams asked C.G. her age and C.G. informed Officer Williams that she was 18 years old. Officer Williams asked C.G. how she knew Respondent and C.G. said that they had been introduced over the internet by a mutual friend, had been corresponding for about a week, and had agreed to meet on that date.
7. Officer Williams asked Respondent how he knew C.G. and Respondent said he had just met C.G. while shopping in the Walgreens. Respondent told Officer Williams that he had never seen or talked with C.G. before.
8. Respondent's statement that he had never seen or talked to C.G. before was false, and Respondent knew it was false when he made it, because Respondent had been communicating with C.G. over the Internet for several days prior to his meeting with C.G.
9. Upon further questioning by Officer Williams, C.G. admitted that she had lied about her age, and C.G. advised Officer Williams that she was 16 years old. During the questioning, C.G. denied that that she and Respondent had engaged in sexual intercourse.
10. Officer Williams observed through the open car door a condom and a condom wrapper, as well as C.G.'s panties, in the rear seat area of Respondent's vehicle.
11. Officer Williams concluded that Respondent had committed or was attempting to commit a crime in his interactions with C.G., based on C.G.'s age. Officer Williams transported Respondent and C.G. to the Lomita, California, police station.
12. At the station, Officer Williams reviewed a videotape from the Walgreens store where Respondent and C.G. had met. Officer Williams noted that Respondent and C.G. exited the store approximately one minute after Respondent entered the store, where C.G. had been waiting. Officer Williams concluded that those facts were was not consistent with Respondent's statement that he and C.G. happened to meet while shopping at the Walgreens and struck up a conversation that led them to leave together.
13. Officer Williams determined that any reasonably prudent person would have recognized that C.G. was not 18 years old based on her youthful appearance. Based on C.G.'s appearance, the manner of the meeting of Respondent and C.G., the state of their undress, and the presence of items such as a condom that would indicate preparation for sexual intercourse, Officer Williams determined that Respondent had contacted C.G. for the purposes of a sexual encounter. Officer Williams placed Respondent under arrest and charged Respondent with attempting to commit an act of unlawful sexual intercourse with a minor, annoying/molesting a child and contributing to the delinquency of a minor.
14. On December 18, 2003, the District Attorney of Los Angeles County, California, filed a one-count felony complaint against Respondent, charging him with one count of attempted unlawful sexual intercourse in violation of California penal code 664/261.5(d), a felony, People of the State of California v. Sean M. Malatesta, Case No. YA057101 (Superior Court of the State of California.)
15. On or about January 7, 2004, the state of California amended the complaint to allege Count I as a misdemeanor. Respondent entered into a plea agreement with the State, whereby he agreed to plead no contest to Count I of the complaint in case number YA057101. The court found Respondent guilty and sentenced Respondent to two days in Los Angeles County jail, credit for time already served, a period of probation for two years, 100 hours of community service and $120 restitution to the court. Respondent was further ordered to not associate with C.G.
16. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:
committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct by committing attempted unlawful sexual intercourse with a minor, in violation of California Penal Code Section 261.5(D);
conduct that is prejudicial to the administration justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and
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.
Failure to Report a Criminal Conviction to the Administrator
17. The Administrator realleges the facts set forth in Paragraphs one through 15 of Count One, above.
18. At all times alleged in this complaint, Supreme Court Rule 761(a) provided that it was the duty of an attorney admitted in this state who was convicted in any court of a felony or misdemeanor to notify the Administrator of the conviction in writing within thirty days of the entry of the judgment of conviction.
19. A conviction for attempted sexual intercourse with a minor is a misdemeanor of the California Penal Code.
20. Pursuant to Supreme Court Rule 761(a), Respondent was required to notify the Administrator of his conviction in case number YA057101 on or before February 7, 2004.
21. At no time on or before February 7, 2004, did Respondent notify the Administrator of his conviction in case number YA057101, as required by Supreme Court Rule 761(a).
22. On February 27, 2006, after completing two years of probation, 100 hours of community service, and paying $120 restitution to the court, Respondent filed a petition to expunge his conviction in case number YA057101. On April 25, 2006, Respondent's petition for expungement was granted.
23. In 2010, Respondent applied for admission to the California Bar.
24. In or about September 2010, the California Bar learned that Respondent did not report to the Administrator his conviction in case number YA057101, and the California Bar confronted Respondent about the fact that he had not reported his conviction pursuant to Illinois Supreme Court Rule 761.
25. On September 10, 2010, after being confronted by the California Bar about Respondent's failure to report his conviction to the Administrator, Respondent reported his conviction to the Administrator.
26. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:
failure to notify the Administrator of his conviction in violation of Supreme Court Rule 761; and
conduct which tends to defeat the administration of justice or to bring the courts of the legal profession into disrepute in violation of Supreme Court Rule 770.
WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.
Lea S. Black
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601-6219
Telephone: (312) 565-2600