Filed January 24, 2014
In re Theresa Cesar Garza
Commission No. 2012PR00035
Synopsis of Review Board Report and Recommendation
This matter arises out of the Administrator's eight count Complaint alleging that Respondent failed to communicate plea offers to clients, revealed confidential information, offered to post bond for a client and engaged in conduct that disrupted a tribunal while employed as an assistant public defender in Cook County. The Hearing Board deemed the allegations of the Administrator's Complaint admitted. Respondent appeared at the hearing and presented some evidence in mitigation. The Hearing Board concluded that Respondent engaged in misconduct and recommended that she be suspended for ninety days.
Upon review, Respondent did not challenge the findings of misconduct but challenged the recommended sanction. The Review Board concluded that the ninety day suspension recommendation was appropriate and was consistent with precedent.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
THERESA CESAR GARZA,
Commission No. 2012PR00035
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This case arises out of the Respondent's representation of seven individuals as a public defender in Cook County. The Administrator brought the charges in eight counts. Each count alleged multiple violations of the Rules of Professional Conduct ("Rule or Rules"). The Respondent did not answer the complaint. Applying Commission Rule 236, the Hearing Board deemed the alleged misconduct admitted. The Respondent does not challenge the Hearing Board's findings of misconduct but she does challenge the recommended discipline of a ninety day suspension from the practice of law. As explained below, we are not persuaded that the Hearing Board's recommendation should be reversed.
In order to properly evaluate the sanction issue, we will briefly review the charges of misconduct which were deemed admitted.
Count I: Failure to Communicate Plea Offers in the Cortez and Barrientos Matters
Respondent represented Juan Cortez and Nilton Barrientos on misdemeanor theft charges. Before a hearing on May 11, 2011, the Cook County State's Attorney's office communicated to Respondent a plea offer for both defendants. Respondent knew of the plea offer but did not communicate the offer to her clients. When the matter was called for the
hearing, Respondent appeared for her clients. The judge asked Respondent whether she had communicated the State's plea offer to her clients. She replied that she had not done so.
The Hearing Board concluded Respondent failed to properly inform her clients of a decision or circumstance to which the client's' informed consent was required in violation of Rule 1.4(a)(1); failed to consult with her clients about the objectives of the representation in violation of Rule 1.2(a); engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d); and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
Count II: Revelation of Confidential Information in the Franco Matter
On May 18, 2011, Respondent was appointed to represent Gabriel Franco, who was arrested and charged with retail theft for allegedly taking baby formula from a grocery store. Respondent met briefly with Franco before a hearing, during which a bond was going to be set. Franco had not yet entered a plea. The State informed the court that Franco had a criminal history and had an outstanding warrant. Respondent then informed the court that Franco was not working, was living with his parents, and was stealing the formula for his infant child. At no time prior to her statements did Respondent obtain her client's informed consent to reveal this information. Respondent's statements conceded facts supporting the charges of retail theft. The Hearing Board concluded that Respondent improperly revealed information relating to the representation of a client in violation of Rule 1.6(a); engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d); and engaged in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.
Count III: Failure to Communicate Plea Offer in Penny Matter
Respondent was also appointed to represent Pierre Penny who was charged with criminal trespass to real property. Respondent had a discussion with Penny about the
circumstances underlying the charge. Respondent knew of a plea offer by the State but failed to discuss the offer with Penny. When Penny's case was called, the judge asked Penny if the State's offer had been given to him. At first, Respondent claimed that she had not seen the offer but then retracted indicating she advised the client not to take the offer.(?) She said it was not her practice to ask for an offer immediately. She then apologized to Penny and to the judge. When Penny was informed of the offer, he accepted it. The Hearing Board concluded that as alleged Respondent violated Rules 1.2(a), 1.4(a)(1), 8.4(d), and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
Count IV: Revelation of Confidential Information in Penny Matter
During the May 18 hearing, Respondent made inculpatory statements on the record regarding Penny and regarding the circumstances of the alleged crime. Respondent did not have her client's consent to reveal this information. Accordingly, the Hearing Board concluded that as alleged Respondent violated Rules 1.2(a), 1.4(a)(1), 1.6(a), 8.4(d) and engaged in conduct which tends to defeat the administration of justice and to bring the courts or the legal profession into disrepute.
Count V: Revelation of Confidential Information in the Poole Matter
On May 11, 2011, Judge Calabrese appointed Respondent to represent Warren Poole who had been charged with a violation of probation and with criminal trespass to real property. Respondent had a conversation with Poole but did not obtain his consent to reveal certain information relating to the alleged crimes. When the case was called for a hearing to set bond, Respondent revealed information relating to the charges, including admitting that Poole was present at the alleged place of the criminal trespass and revealing his alleged motive for being at that location. Respondent stated that Poole was going to accept the plea. As in the other
counts with similar allegations, the Hearing Board concluded that as alleged Respondent violated Rules 1.6(a) and 8.4(d).
Count VI: Offer to Post Bond in the Poole Matter
and Conduct Intended to Disrupt a Tribunal
Judge Calabrese set Poole's bond at $1,000. Respondent attempted to have the court reconsider the bond amount, stating that Poole lived in Champaign, was in school, had a job that he needed to keep, and had no family in the area to post his bond. The court refused Respondent's request. Respondent then offered to post Poole's bond in order for Poole to be released. The Illinois Code of Criminal Procedure prohibits attorneys from furnishing security for bail. After a discussion with Judge Calabrese wherein the judge advised Respondent that he thought she would have an ethical dilemma by posting bond, Judge Calabrese continued the case for a hearing on May 25, 2011. Respondent then requested that Poole be brought back to court the following day. After the judge denied Respondent's request, Respondent replied, "Oh, that's lovely."
The Hearing Board concluded that as alleged Respondent's statement was intended to disrupt the tribunal, in violation of Rule 3.5(d). In addition, the Hearing Board concluded that as alleged Respondent violated Rule 8.4(d) and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
Count VII: Conduct Intended to Disrupt the Tribunal in the Boyd Matter
On May 18, 2011, Judge Calabrese appointed Respondent to represent Monica Boyd who had been charged with theft. Boyd had previously retained a private attorney. When the private attorney moved to withdraw from representing Boyd, he informed the judge that he had not received full discovery from the State. He had requested photo lineups that he had not
received and a video that the State tendered to him did not play. The judge told Boyd that he would give her a short continuance to obtain another attorney, and told her to talk to Respondent.
Respondent met with Boyd and later appeared before Judge Calabrese. After some discussion as to when the State could produce the requested video, Respondent said, "If the court wishes for me to go today, show me the video, and then I would go today." Judge Calabrese then replied that he would pass the matter for trial (apparently to allow her to view the video).
Boyd apparently told Respondent that she needed to leave to pick up a child from school that day and then she would return to the courtroom. When the court called the case again, Boyd was not there. Respondent indicated that the State was just now showing her the video and that Boyd had left to pick up her child. The judge replied that the case was set for trial and he issued a warrant for Boyd's arrest. Respondent replied, "Oh shit". When the judge asked her what she said, she said, "Oh shoot" and said it was her fault that Boyd was not present. The judge issued the warrant.
The Hearing Board concluded as alleged Respondent violated Rules 3.5(d), 8.4(d), and engaged in conduct which tends to defeat the administration of justice or to bring the legal profession into disrepute.
Count VIII: Conduct Intended to Disrupt a Tribunal in the Rivera Matter
On June 2, 2011, Respondent appeared before Judge Calabrese on behalf of Tony Rivera. She requested a reduction of Rivera's bond. After her request was denied by the judge, she began to raise her voice to the judge. When the judge noted he had not lost his hearing, Respondent continued to argue with the judge with a raised voice. Judge Calabrese stated, "Let me just indicate again, you are yelling on the record. This happens all the time when you don't get your way. Because you lose something doesn't mean you have to start yelling at me."
Following her outburst, Respondent was removed from her assignment and placed on office duty. In late July 2011, the Cook County Public Defender's Office terminated Respondent's employment.
The Hearing Board concluded that as alleged Respondent engaged in conduct intended to disrupt a tribunal in violation of Rule 3.5(d), engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d), and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
In recommending a sanction we are mindful that the purpose of the attorney disciplinary system is not to punish the attorney for her misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981(2006). Accordingly, we consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003).
Respondent, representing herself, testified in a rambling narrative. Respondent was admitted to practice law in Illinois and Indiana in 1981. She testified that she put herself through college and law school while raising six young children. Her first job after receiving her license was with the Indiana Lake County Prosecutor's Office. After about three years, she then took a job with the United States Department of Justice in the civil rights division, criminal section in Washington, D.C. In 1987, she returned to Illinois as an Assistant United States Attorney. In 1995, Respondent briefly went into private practice with Steven Shobat. She joined the Cook County Public Defender's Office in 2004. Respondent did not testify about her current practice, but mentioned that she had some personal difficulties at the time of her misconduct.
Her mother had recently passed away and she was still reeling from her death. Respondent's birthday was May 10, the day before the initial misconduct in this matter. She testified that her birthday reminded her of her mother. She also explained her conduct by saying that she was working in a "hostile environment." The Administrator opted not to cross-examine Respondent.
In mitigation, Respondent also offered the testimony of Steven Shobat. Shobat met Respondent when they were both at the U.S. Attorney's Office. At that time, Respondent was a mentor to Shobat and had a reputation as an ethical and honest attorney. In 1994, they left the U.S. Attorney's Office and went into a private criminal defense practice together. The partnership lasted about eighteen months. While they initially had a falling out, they have since resumed their friendship. Shobat said that Respondent is passionate about her clients.
The Hearing Board made the following observation about mitigation and aggravation:
In mitigation, it is clear Respondent was a talented trial attorney who enjoyed an accomplished career. Prior to this proceeding she had an unblemished record in over 30 years of practice. Mr. Shobat testified to Respondent's reputation as a passionate and ethical advocate.
In aggravation, Respondent showed no remorse and never acknowledged her misconduct. See In re Lewis, 138 Ill. 2d 310, 562 N.E.2d 198 (1990). Her arguments and demeanor at this hearing demonstrated she has no appreciation of her transgressions. Instead of accepting responsibility, Respondent rationalized her misconduct and blamed others. We are also troubled by Respondent's failure to participate fully in these proceedings and consider it a significant factor in aggravation.
Respondent argues her conduct caused no actual harm to any client. However, we may consider in aggravation the potential harm to Respondent's clients. 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 attorney's lack of care). To that end, it is well settled that more severe discipline is warranted to deter misconduct in criminal cases. In re Hall, 95 Ill. 2d 371, 447 N.E.2d 805 (1983).
The Hearing Board's findings about the Respondent's demeanor should be given deference because it was in the best position to make this determination. In re Spak, 188 Ill. 2d 53, 719 N.E.2d 747, 754 (1999). We also agree that an attorney's conduct and demeanor in a disciplinary hearing is a proper consideration when determining the appropriate sanction. See, e.g., In re Samuels, 126 Ill. 2d 509, 535 N.E.2d 808 (1989); In re Zurek, 99 CH 45 (Review Bd., March 28, 2002), recommendation adopted, No. M.R. 18164 (Sept. 19, 2002).
The ninety day suspension is also consistent with precedent. In a case somewhat similar to this matter, In re Carroll, 09 CH 78 (Review Bd., Jan. 3, 2013), approved and confirmed, No. M.R. 25952 (May 22, 2013), the attorney was suspended for ninety days for failing to communicate plea offers to two criminal defendant clients. Attorneys have also been suspended for revealing confidential information. In re Peshek, 09 CH 89, petition to impose discipline on consent allowed, No. M.R. 23794 (May 18, 2010). Accordingly, we find no legal basis for challenging the sanction recommendation of the Hearing Board.
Like the Hearing Board, we are very troubled by the record that reflects that the Respondent ignored responsibilities to clients, acted out in ways that lack the judgment required by the circumstances and does not seem to appreciate the significance of any of this. Accordingly, we recommend to the Court that Respondent, Therese Cesar Garza, be suspended from the practice of law for ninety days.
Anna M. Loftus
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office onJanuary 24, 2014.
Kenneth G. Jablonski, Clerk of the