Petition Allowed by the Illinois Supreme Court
and Imposing Discipline on Consent
Allowed May 18, 2010
IN THE SUPREME COURT OF ILLINOIS
In the Matter of:
Supreme Court No. M.R. 23794
Commission No. 09 CH 89
PETITION TO IMPOSE DISCIPLINE ON CONSENT
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Lea S. Black, pursuant to Supreme Court Rule 762(b), with the consent of Respondent, Kristine Ann Peshek, and with the approval of a panel of the Hearing Board, petitions the Court to enter an order suspending Respondent for sixty (60) days.
I. SUMMARY OF PETITION
1. Respondent was admitted to practice law in Illinois in 1989, and she is 53 years old. Between June 2007 and April 2008, Respondent wrote and published an Internet web log ("blog"), one-third of which was devoted to discussing her work at the Winnebago County Public Defender's office and her clients. In the work-related blogs, Respondent provided some information about her clients' identities and posted confidential information about their cases or her discussions with them. Respondent also failed to disclose to a tribunal that one of her clients had made false statements about her drug usage during the course of a guilty plea. A full description of Respondent's conduct is set forth in section II, below.
2. Respondent has not been previously disciplined and has been cooperative during the disciplinary proceedings. She has expressed remorse for her misconduct. A discussion of mitigating and aggravating factors is included in section III, below.
3. In consideration of Respondent's conduct and the factors in mitigation, a sixty (60) day suspension is warranted and is within the range of the sanctions imposed in comparable
cases, including In re Nelson, M.R. 19657, 02 CH 12 (November 17, 2004), In re O'Connor, M.R. 19328, 01 CH 96 (May 17, 2004), In re Koziol, M.R. 8797, 92 CH 549 (January 27, 1993), and In re Barringer, M.R. 17621, 00 SH 80 (September 21, 2001). A full discussion of the discipline recommended is set forth in section III, below. Respondent's affidavit is attached as Exhibit One.
4. At the time this petition was prepared, a two-count complaint was pending before the Hearing Board of the Commission. The members of the panel assigned to consider the matter have, as required by Supreme Court Rule 762(b)(1)(b), reviewed this petition and approved its filing with the Court. A copy of the Hearing Board order approving the submission of this matter to the Court is attached as Exhibit Two. A copy of the transcript of the Hearing Board proceedings is attached as Exhibit Three.
II. FACTUAL BASIS FOR RECOMMENDATION
A. Publishing client confidences or secrets on the Internet
5. Between June 2007 and April 2008, Respondent, who was an assistant public defender in Winnebago County, wrote and published a blog on the Internet, one-third of which was devoted to discussing her work at the Public Defender's office and her clients; the remaining content of the blog concerned Respondent's health issues and her photography and bird-watching hobbies. In the work-related blogs, Respondent referred to her clients by either their first name, a derivative of their first name, or their jail identification number.
6. Respondent's blog was open to the public and was not password protected, and the contents of her blog were continuously available to anyone with access to the Internet. Respondent maintained a site meter on the blog that counted the number of visits to the blog, and Respondent knew that her blog received approximately 35 visits per day.
7. On March 14, 2008, while Respondent represented a college student in relation to allegations that he had possessed a controlled substance, she published an entry on her blog that referred to that client by his jail identification number. The blog entry stated that the client was not guilty but was pleading to the drug charges to protect his older brother, whom Respondent knew from prior dealings involving charges that the brother had possessed drugs and guns.
8. On March 28, 2008, while Respondent represented a diabetic client in relation to his drug charges, she published an entry on her blog that referred to that client by his first name. The entry stated that the client had lied to the court about his drug use, which Respondent and others involved in the case discovered when the client's drug test later came back positive for cocaine. The entry also stated that the client had been under the influence of cocaine when he appeared before the judge.
9. On April 9, 2008, while Respondent represented a woman in relation to allegations that she had violated the terms of a previous order of probation, she published an entry on her blog that referred to that client by a derivative of her first name, and stated that the client had lied to the judge during sentencing by telling the judge that she was not using drugs. Respondent's blog entry said that immediately following sentencing, the client had informed Respondent that she was using methadone, and that the client had asked Respondent if she could go back before the judge and inform him that she was on methadone. Respondent told the client that she could not inform the judge that she was on methadone because the judge would put the client in jail for having just lied to him about being under the influence of drugs.
10. Although Respondent was aware that her client had misinformed the court regarding her drug usage, at no time did Respondent call upon her client to rectify her
misstatement to the court, nor did Respondent inform the court that her client had admitted using methadone.
11. The information that Respondent revealed about her clients in the blogs referred to in paragraphs seven through nine, above, was confidential, and Respondent knew that the information was confidential, or that its revelation would be embarrassing or detrimental to her clients.
12. In addition to the blog entries described above, in a blog entry dated February 5, 2008, Respondent referred to a judge as being "a total asshole," and in a blog entry dated March 11, 2008, Respondent referred to a judge as "Judge Clueless."
13. On April 18, 2008, Respondent's supervisor became aware that Respondent was publishing blogs containing information about her clients, and Respondent was terminated from her employment as an assistant public defender based upon those publications.
14. Respondent's blog entries contained sufficient identifying information such that Respondent's co-workers, employees of the State's Attorney's Office, police, bailiffs, or other participants in the Winnebago Circuit Court system could determine the identity of the clients and judges to whom Respondent's blog entries referred. The blog entries also contained sufficient information such that a motivated person who was not involved with the Winnebago County judicial system could, using other publicly available information, determine the identity of the judges and clients referenced in Respondent's blog entries.
B. Conclusions of Misconduct
15. By reason of the conduct described above, Respondent has engaged in the following misconduct:
failing to call upon a client to rectify a fraud that the client perpetrated on the court, in violation of Rule 1.2(g) of the Illinois Rules of Professional Conduct;
using or revealing a confidence or secret of the client known to the lawyer, in violation of Rule 1.6(a) of the Illinois Rules of Professional Conduct;
failing to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, in violation of Rule 3.3(a)(2) of the Illinois Rules of Professional Conduct;
conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;
conduct that is prejudicial to the administration of 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.
C. Respondent's Background and Additional Considerations in
Mitigation and Aggravation
16. Respondent is 53 years old and was admitted to the practice of law in Illinois in 1989. She has not been previously disciplined and has been cooperative during the disciplinary proceedings. She has also expressed remorse for her conduct.
17. In March 2007, Respondent was diagnosed with acute stress disorder after having been punched in the face by a client while in court. Respondent began blogging shortly after her diagnosis as a method of managing the stress associated with that incident.
III. RECOMMENDATION AND DISCUSSION OF PRECEDENT
18. The Administrator respectfully requests that the Court enter an order suspending Respondent for 60 days. This recommendation is supported by the following precedent.
19. Respondent's conduct in revealing client confidences in her blogs is similar to the respondent's conduct in In re Nelson, M.R. 19657, 02 CH 12 (November 17, 2004). Nelson, while employed by the Chicago Transit Authority, removed confidential documents from her supervisor's cabinet and used information from those documents in a civil complaint that she filed against the CTA and some of its employees. After she filed her complaint, Respondent produced the misappropriated documents in response to a discovery request. Respondent was then suspended from her position at the CTA, and eventually was terminated. Nelson was suspended for 90 days. While Respondent's conduct in the case at hand and Nelson's conduct both involved revealing client confidences, Nelson's conduct also involved misappropriating documents and attempting to use them for personal gain, factors not present in the instant case. Therefore, a greater sanction was warranted in Nelson than in the case at hand.
20. In In re O'Connor, M.R. 19328, 01 CH 96 (May 17, 2004), the respondent transmitted confidential information about his firm's client to opposing counsel in a litigation matter handled by the respondent's partners. That information included the amount the client would have been willing to accept in settlement. O'Connor was suspended for 30 days. Respondent's revelation of client information is similar to the conduct that formed the basis for a 30-day suspension in O'Connor, but it involved more clients and the failure to disclose a client's false statements to a tribunal. Therefore, a 60-day suspension is more appropriate than the 30-day suspension imposed in O'Connor.
21. Respondent's misconduct also included her failure to disclose to a tribunal information necessary to avoid assisting a client in a fraudulent act. In In re Koziol, M.R. 8797, 92 CH 549 (January 27, 1993), the respondent allowed a judgment for dissolution of marriage in favor of his client to be entered after learning that the petition for dissolution of marriage
contained false and misleading statements regarding the existence of marital real property, and omitted the fact that his client and his client's spouse had already obtained a divorce in Poland. The Court censured Koziol.
22. Respondent's conduct in referring to a judge as "clueless" and referring to another judge as "a total asshole," is similar to the respondent's misconduct in In re Barringer, M.R. 17621, 00 SH 80 (September 21, 2001). In that case, the respondent filed a motion to substitute a judge in a client's dissolution of marriage matter. The motion contained false statements about the judge's financial obligations and credit limits. The motion also contained false allegations that the judge had conducted an ex parte interview with Barringer's client's son. Barringer was censured. While Respondent's conduct was similar to the respondents' conduct in Koziol and Barringer, Respondent also revealed client confidences in her blogs. Therefore, a 60-day suspension is more appropriate than the censures imposed in Koziol and Barringer.
23. Given Respondent's actions in revealing her client's confidences on the Internet, and her actions in advising her client not to correct her misstatement to the court, a 60-day suspension will serve the purposes of the disciplinary system and is within the range of this Court's precedent in cases involving comparable misconduct.
WHEREFORE, the Administrator, with the consent of the Hearing Board, requests that the Court enter an order suspending Respondent for 60 days.
Lea S. Black