BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 2012PR00006
FILED - February 6, 2012
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorneys, Richard Wray and Peter L. Rotskoff, pursuant to Supreme Court Rule 753(b), complains of Respondent, Jesse Raymond Gilsdorf, who was licensed to practice law in the State of Illinois on November 10, 1994, 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:
(Improperly publishing discovery material on the internet)
1. In 2011, Respondent agreed to represent Angela Fulmer ("Fulmer"), who had been charged with unlawful delivery of a controlled substance in Pike County, Illinois. People of the State of Illinois v. Angela Fulmer, case no. 11 CF 15.
2. On March 4, 2011, Respondent received written copies of police reports and a DVD copy of a video of an undercover drug buy, as part of the discovery tendered by the State's Attorney in case no. 11 CF 15. The video, which was 18 minutes and 29 seconds, was taken by a covert camera and purported to show the delivery of a controlled substance by Fulmer to a confidential source of the Illinois Drug Task Force. The police only appear in the last ten seconds of the video.
3. At all times pertinent to this complaint, Supreme Court Rule 415, on regulation of discovery in criminal cases, provided in pertinent part:
Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purpose of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.
4. The Committee Comments to Supreme Court Rule 415, which were published simultaneously with the rule, included the following:
While he [the attorney] will undoubtedly have to show it [material received in the discovery process] to, or at least discuss it with others, he is not permitted to furnish them with copies or let them take it [the discovery materials] from his office.
5. In or about April 2011, Respondent showed the video referred to in paragraph 2, above, to approximately 20 people who were not related to Fulmer's case.
6. In or about April 2011, Respondent caused the video to be uploaded in two parts to an internet website known as YouTube (www.youtube.com) and entitled them, "Cops and Task Force Planting Drugs - Part 1" and "Cops and Task Force Planting Drugs - Part 2."
7. Respondent released the videos from his custody into the possession of John Hamann, an employee of the Quincy, Illinois company ‘Pyrographics,' to be posted on the internet website YouTube. Respondent paid Pyrographics $233.75 for this service.
8. At no time did Respondent inform Fulmer that he intended to post the videos on YouTube.
9. At no time did Fulmer authorize Respondent to post the videos on YouTube.
10. The videos posted on YouTube were described by Respondent as a "drug plant" and implied that the Drug Task Force engaged in improper or illegal conduct by entrapping Fulmer. The videos also showed the identity of a confidential source.
11. On or about April 11, 2011, Respondent posted a link to the videos on his page of an internet website known as Facebook (www.facebook.com), which would take a visitor from Respondent's Facebook page directly to the videos on YouTube.
12. On April 20, 2011, the Pike County State's Attorney, in case no. 11 CF 15, filed a motion for sanctions alleging Respondent violated the discovery rules by disseminating the videos.
13 On May 20, 2011, the court found that Respondent had violated Rule 415(c) and ordered Respondent to remove the videos from the internet.
14. Between March 4, 2011, when Respondent received the discovery in case no. 11 CF 15, and May 20, 2011, when Respondent was ordered by the court to remove the videos, the videos received more than 2,000 hits on YouTube.
15. By reason of the conduct described above, Respondent has engaged in the following misconduct:
conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010);
revealing information relating to the representation of a client without the informed consent of his client and without the disclosure being impliedly authorized in order to carry out the representation of his client, in violation of Rule 1.6(a) of the Illinois Rules of Professional Conduct (2010);
failing to reasonably consult with the client about the means by which the client's objectives are to be accomplished, in violation of Rule 1.4(a)(2) of the Illinois Rules of Professional Conduct (2010);
conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Illinois Supreme Court Rule 770; and
failing to keep discovery material in his exclusive custody, in violation of Illinois Supreme Court Rule 415(c).
(Improper extrajudicial statements)
16. The Administrator re-alleges and incorporates Paragraphs 1-14 of Count I, above.
17. By showing the videos he received in discovery to approximately 20 people, posting the videos on YouTube, and placing a link to the video on Facebook Respondent knew the that he was disseminating the video by means of public communication.
18. By posting the videos, Respondent intended to draw the attention of Pike County residents to Fulmer's criminal case and he intended to persuade those residents that the police or other government officials acted improperly in the prosecution of Fulmer.
19. Respondent reasonably knew that the dissemination of the videos would pose a serious and imminent threat to the fairness of the adjudicative proceeding involving a jury that would be comprised of Pike County residents.
20. By reason of the conduct described above, Respondent has engaged in the following misconduct:
making extrajudicial statements that the lawyer reasonably knows will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding, in violation of Rule 3.6(a) of the Illinois Rules of Professional Conduct (2010);
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
conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Illinois Supreme Court Rule 770.
WHEREFORE, the Administrator respectfully requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held pursuant to Supreme Court Rule 753(b), and that the Panel make findings of fact, conclusions of fact and law, and a recommendation of such discipline as is warranted.
C. Richard Wray