IN THE SUPREME COURT OF ILLINOIS

In the Matter of:

SEAN MICHAEL MALATESTA,

Attorney-Movant, 

No. 6244655.

 

Supreme Court No. M.R.

Commission No. 2011PR00061

 

STATEMENT OF CHARGES PURSUANT
TO SUPREME COURT RULE 762(a)

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Lea S. Black, pursuant to Supreme Court Rule 762(a), states that on the date Sean Michael Malatesta (hereinafter "Movant") signed a motion requesting that his name be stricken from the Roll of Attorneys, a two-count complaint was pending before the Hearing Board charging Movant with the conduct that formed the basis for Movantís criminal conviction for attempted sexual intercourse with a minor, and with failing to report his conviction to the Administrator. If those charges had proceeded to hearing, the evidence set forth below would clearly and convincingly establish the misconduct described below:

I. DESCRIPTION OF MOVANTíS MISCONDUCT

A. Movantís conviction for Attempted Sexual Intercourse with a Minor

Commission records, police records, documents from the Los Angeles County Superior Court of California, witness testimony, and Movantís admissions would establish that:

1. For several days prior to December 15, 2003, Movant communicated with a female individual, C.G., on the internet. On December 15, 2003, Movant and C.G., agreed to meet the following day, and decided to meet at a Walgreens store near C.G.ís home in Torrance,

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California. C.G. informed Movant that she would wear a pink dress so that he would be able to identify her.

2. On December 16, 2003, Movant met C.G. at the Walgreens store, and the two immediately exited the store together and entered Movantís vehicle. Movant and C.G. then stopped at a fast food drive-through, where C.G. purchased some food. Shortly thereafter, Movant and C.G. parked Movantís vehicle in an isolated parking lot and began engaging in a sexual act.

3. Los Angeles Sheriffís Department Officer Daryl L. Williams observed Movantís automobile parked in the isolated area, and pulled his vehicle in behind Movantís vehicle, where he observed Movant and C.G. in the back seat of Movantís vehicle. Officer Williams approached Movantís vehicle and observed Movant and C.G. hurriedly attempting to replace their clothing. C.G.ís panties, a condom, and a condom wrapper were in the backseat area of Movantís vehicle.

4. Officer Williams immediately observed that C.G.ís 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 Movant, 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.

5. Officer Williams asked Movant how he knew C.G. and Movant falsely stated he had just met C.G. while shopping in the Walgreens. Movant told Officer Williams that he had never seen or talked with C.G. before.

6. 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

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questioning, C.G. denied that that she and Movant had engaged in sexual intercourse. Officer Williams concluded that, based on C.G.ís age, Movant had committed or was attempting to commit a crime in his interactions with C.G. Officer Williams transported Movant and C.G. to the Lomita, California, police station.

7. At the station, Officer Williams reviewed a videotape from the Walgreens store where Movant and C.G. had met and determined that Movant and C.G. exited the store approximately one minute after Movant entered the store, where C.G. had been waiting. Officer Williams concluded that those facts were was not consistent with Movantís statement that he and C.G. happened to meet while shopping at the Walgreens and struck up a conversation that led to them leaving together.

8. Based on Officer Williamsí observations and investigation, he determined that Movant had contacted C.G. for the purposes of a sexual encounter. Officer Williams placed Movant under arrest and charged Movant 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.

9. On December 18, 2003, the District Attorney of Los Angeles County, California, filed a one-count felony complaint against Movant, charging him with the felony of attempted unlawful sexual intercourse, in violation of California penal code 664/261.5(d).

10. On January 7, 2004, the State of California amended the complaint to allege Count I as a misdemeanor. Movant entered into a plea agreement with the State, whereby he agreed to plead no contest to the charges. The court found Movant guilty of attempted unlawful intercourse and sentenced Movant to two days in Los Angeles County jail, with credit for time

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already served, a period of probation for two years, 100 hours of community service and $120 restitution to the court. Movant was further ordered to not associate with C.G.

B. Failure to report a criminal conviction to the Administrator

11. Pursuant to Supreme Court Rule 761(a), Movant was required to notify the Administrator of his January 7, 2004 conviction for attempted unlawful sexual intercourse within thirty days of the entry of judgment of conviction, or on or before February 7, 2004. However, at no time before September 20, 2010, did Movant notify the Administrator of his conviction.

12. On February 27, 2006, after completing two years of probation, 100 hours of community service, and paying $120 restitution to the court, Movant filed a petition to expunge his January 7, 2004 conviction, and, on April 25, 2006, Movantís petition for expungement was granted.

13. In 2010, Movant applied for admission to the California Bar, and shortly thereafter, the California Bar learned that Movant had not reported his conviction for attempted sexual intercourse with a minor to the Administrator. The California Bar confronted Movant about the fact that he had not reported his conviction, and on September 10, 2010, Movant reported his conviction to the Administrator.

II. CONCLUSIONS OF MISCONDUCT

14. As a result of the conduct described above, Movant has engaged in the following misconduct:

  1. 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);

  2. conduct that is prejudicial to the administration justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct;

 

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  1. failure to notify the Administrator of his conviction, in violation of Supreme Court Rule 761; and

  2. 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.

Lea S. Black
Counsel for Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601
Telephone: (312) 565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Lea S. Black