BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 2011PR00078
FILED - July 5, 2011
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Denise Church, pursuant to Supreme Court Rule 753(b), complains of Respondent, Kerry Irene O'Sullivan, who was licensed to practice law in the State of Illinois on May 6, 1999, 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:
(Respondent's ex parte discussions with arbitrator Jennifer Teague)
1. On November 23, 2007, Illinois State Police ("ISP") officer Matthew Mitchell ("Mitchell") was responding to a call, when he lost control of his vehicle, crossed a median, and struck another vehicle head-on, instantly killing the occupants of the other vehicle, 13-year-old Jessica Uhl and 18-year-old Kelli Uhl. Mitchell was driving over 100 m.p.h. at the time of the collision. Mitchell had been sending an email to another officer and calling his girlfriend on his cell phone just before the collision. In March 2008, Mitchell was indicted on charges relating to incident, and on April 16, 2010, he pled guilty to two counts of reckless homicide. Mitchell was sentenced to 30 months of probation. People v. Matthew Mitchell, St. Clair County, case number 08 CF 368.
2. On September 13, 2010, Respondent filed, on Mitchell's behalf, an application for adjustment of benefits with the Illinois Workers' Compensation Commission, seeking payment for injuries Mitchell had sustained in the collision described in paragraph one, above. The case was docketed as Matthew Mitchell v. Illinois State Police, WCC case number 10 WC 035184. The ISP was represented by Assistant Attorney General William Schneider ("Schneider"). The case was assigned to arbitrator Jennifer Teague ("Teague").
3. On October 14, 2010, Respondent sent an email to Teague and Schneider stating that she would not be proceeding with Mitchell's request for a hearing in the case, because the State was disputing that Mitchell's claim was compensable.
4. On October 14, 2010, Teague responded to Respondent, via email, without copying Schneider, and stated: "Seriously????????? I cannot believe they are bringing this on themselves!"
5. On October 14, 2010, Respondent sent an email back to Teague, without copying Schneider, stating:
"I think so too. The defense appears to be that he was acting so recklessly it takes it out of ‘arising out of'. But by that argument, any goofus who pulls a guard off of a machine and then gets his hand chomped off is out of WC too. I don't get it. I recommended a pretrial on the issue of compensability, but Bill [Schneider] said it would not help."
6. Teague responded to Respondent with the following email:
"Then it is the adjuster calling the shots. It will likely go up on appeal too. Whatever. Perhaps the State should have thought of that before they threw 2 young attorneys to be chomped up by Tom Keefe in the Court of Claims hearing. Get a copy of that transcript, and I'd say they are bound by the stipulation. Not sure whey [sic] they think they are not bound. I agree he was reckless, but stupidity is no defense, and neither is contrib."
7. Respondent was aware that Schneider was not included in the email exchange with Teague, and Respondent intended to discuss the merits of the case with Teague without including Schneider.
8. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:
communicating ex parte with a judge or other official during a proceeding, in violation of Rule 3.5(b) of the Illinois Rules of Professional Conduct (2010);
engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and
engaging in conduct which tends to defeat the administration of justice or bring the courts or 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.
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