ter to Respondent's office indicating that the alleged act of child abuse at the school had not occurred, Respondent would convene a grand jury and subpoena her child to appear before the grand jury to testify. Mrs. Butterfield never sent Respondent the letter, and Respondent's office issued a number of grand jury subpoenas to the Butterfields and other persons who appeared to have knowledge about the alleged incident. Eventually, a judge quashed the subpoenas. A disciplinary grievance was filed against the Respondent, charging him with engaging in a prohibited conflict of interest. The supreme court censured him.
In re Heidecke, M.R. 7224, 91 CH 11 (January 28, 1991). The attorney was a part-time hearing officer for the Secretary of State. He was suspended for four years, following his federal conviction for extortion, when he asked for, and accepted, money from an applicant for a temporary driving permit, promising to award the permit to the unqualified applicant.
In re Sims, 144 Ill. 2d 323, 579 N.E.2d 865 (1991). Sims was State's Attorney of Perry County from 1980 through 1985. He used cannabis in the presence of other individuals from approximately 1979 to 1984. Sims also purchased, possessed, and used small quantities of cocaine in Perry and Jackson counties, Illinois, between 1979 and 1982. Sims failed to take any action in his role as State's Attorney in bringing criminal charges against those who sold and used controlled substances in his presence. Sims resigned as State's Attorney when threatened with a federal indictment, ceased his use of drugs, and worked for six years as an assistant Attorney General for the Virgin Islands prior to the imposition of discipline. While finding the evidence of Sims' rehabilitation compelling, the court ordered him suspended for two years.
In re Adelman, M.R. 7676, 91 CH 380 (September 26, 1991). The attorney was employed on a per diem basis in the Administrative Hearings Division of the Secretary of State's office. He paid a full-time employee $45,000 to quit his position, and then the attorney was hired to a full-time position. He was censured for engaging in conduct prejudicial to the administration of justice.
In re O'Connor, M.R. 10004, 91 CH 632 (May 19, 1994). The Respondent was suspended for one year and until further order, in part due to conduct that occurred while he was serving as an Assistant Cook County State's Attorney. Specifically, he was assigned to prosecute a defendant who had been charged with the robbery and murder of an elderly woman and the robbery of her companion, Ms. Eugenia Santiago. After Ms. Santiago, the key witness, did not appear in court to testify, and the state was unable to secure her appearance, Respondent and another prosecutor attempted to serve Ms. Santiago at her home. When Respondent arrived at Ms. Santiago's residence, he was carrying a handgun and attempted to intimidate the woman. As a result, criminal charges were filed against him and he was found guilty of unlawful use of weapons, a Class A misdemeanor.
In re Chancey, M.R. 10266, 91 CH 348 (September 23, 1994). While serving as the First Assistant Lake County State's Attorney, the attorney prepared a false document that purported to be an order of the Illinois Appellate Court and signed the name of a retired appellate justice to the document. At the time, the attorney was involved in a criminal proceeding regarding an alleged child abduction. A natural father had allegedly abducted his child and would not return the child until several conditions were met. One of the conditions was that he wanted an appellate court order allowing annual visitation with the child. The attorney knew that it would be impossible to obtain a legitimate court order, because no case was pending in the appellate court. He was, however, concerned about the safety of the child. The Review Board found that although he may have had a good motive, he still engaged in dishonesty and deceit, and the Board recommended that he be reprimanded. The supreme court permitted the Review Board reprimand to stand.
In re Mattson, M.R. 12186, 94 SH 644 (March 26, 1996). The attorney was an Assistant Attorney General. He was disbarred based on findings that he took money from the desks and purses of co-workers, fraudulently billed state agencies for stays at hotels, and committed criminal trespass to a private residence.
In re Peek, M.R. 9461, 94 SH 369 (March 26, 1996). Peek became a felony prosecutor in April 1992. He continued in that position until he resigned in September 1992. The month before his resignation, federal criminal charges were filed against him, alleging that he knowingly and intentionally conspired to possess cocaine and marijuana with the intent to distribute. The charges were dismissed and were not reinstated. The Administrator, however, filed a formal complaint alleging the same matters that were the subject of the criminal charges, specifically addressing Peek's interaction with a man named Timothy Lewis, on the basis of recordings of Peek's conversations with Lewis. The conversations, on their face, concerned drug activity; it appeared that the two men were arranging large-scale drug transactions. Peek's defense was that the conversations were staged and "pretend." An ARDC Hearing Board found that Peek's testimony was not credible. He was disbarred.
In re Lee, 96 SH 655 (Hg.Bd. Reprimand, Dec. 9, 1996). Respondent, as Ford County State's Attorney, altered, or directed someone to alter, the face of an arrest warrant issued by a judge for the arrest of Michael J. Taylor. Respondent was informed by a Chief Investigator of the Ford County Sheriff's Department that the information on the face of the warrant, which described Michael J. Taylor, including a physical description and date of birth, was incorrect. The investigator also provided Respondent with what was described as the correct identifying information for Michael J. Taylor. Respondent subsequently crossed out the existing identifying information on the warrant, typed on the new identifying information, and delivered it to the Ford County Sheriff's Department for execution. As a result of Respondent's actions, Ford County Sheriff's deputies arrested a man who did not commit the crime for which the warrant was issued. The Hearing Board determined that a reprimand was appropriate for the misconduct in question.
In re Gregorich, M.R. 12998, 95 SH 436 (January 30, 1997). While this attorney was employed as a staff attorney for the Fourth District Appellate Court, he obtained an inter-office memorandum written by one justice to two others who were presiding with him on a particular matter. When the attorney decided to run for an appellate court judgeship against the judge who had written the memo, he disseminated its contents publicly in an effort to show that the judge was inept at handling civil matters (the judge's memo contained a tongue-in-cheek reference to his "chronic state of confusion about civil law"). It was found that the attorney had failed to act in a manner consistent with the integrity and independence of the judiciary as a judicial candidate (Rule 67(A)(3)(a) of the Code of Judicial Conduct and Rule 8.2(b) of the Rules of Professional Conduct) and engaged in conduct prejudicial to the administration of justice; conduct involving dishonesty; using or revealing, without authority, a confidence or secret of the court; and a breach of the fiduciary duty he continued to owe the appellate court as a former employee. He was suspended for four years and until further order of the court.
In re Krakowski, M.R. 14228, 96 CH 823 (January 29, 1998). While employed as an Assistant Attorney General, the attorney attempted to fraudulently avoid payment of a parking ticket, he misrepresented to his supervisors the circumstances surrounding his receipt of the ticket, and he made misrepresentations to the ARDC about the incident. The attorney was suspended for six months.
In re Blake, 97 CH 101 (recommendation of March 31, 1998). The attorney, who died before the disciplinary proceedings became final, was a hearing officer with the Illinois Department of Employment Security. While so employed, she applied for and received state unemployment insurance benefits, and she pled guilty in circuit court to state benefits fraud. It was recommended by the Hearing Board that she be suspended for one year and until further order of the court.
In re Mellen, M.R. 14936, 98 DC 1006 (May 27, 1998). Mellen was licensed to practice in 1994. He was disbarred upon consent after he was found guilty official misconduct and criminal sexual abuse. The conviction arose out of his conduct while serving as an Assistant Grundy County prosecutor. He forced a young woman to perform sexual acts in exchange for dismissal of a traffic citation. He told her that if she did not do as he asked, she would face a $2,000 fine and would not be able to get a driver's license for two years. Mellen also engaged in similar misconduct with other women who had cases pending in Grundy County.
In re Stewart, 98 SH 97, M.R. 15437 (February 1, 1999). Stewart was employed as an Assistant State's Attorney for Moultrie County, Illinois, when he delivered crack cocaine on three separate occasions to a friend who was also a paid informant of the East Central Illinois Police Task Force. He was terminated from his position and prosecuted. Stewart asserted an entrapment defense and was eventually acquitted after a jury trial. Since Stewart had admitted in trial, however, that he had delivered the crack cocaine to the informant, disciplinary charges were subsequently filed against him. Stewart agreed to a voluntary disbarment and his name was stricken from the Master Roll.
In re Bretz, M.R. 12243, 96 CH 118 (March 24, 1999). While serving as a county prosecutor, the attorney improperly charged a criminal defendant with felony aggravated criminal sexual abuse when he knew that a felony-charge requirement of a five-year age difference between a victim and the defendant was not met. Because there was no five-year age difference between the victim and the defendant, the defendant's offense only warranted a misdemeanor charge. In addition, while serving as the First Assistant State's Attorney, the attorney hid a file in his office during an ongoing criminal investigation of illegal storage of hazardous waste in order to impede further investigation or prosecution of a defendant. He was also disciplined for his role in a criminal trial where he failed to disclose on the record that he had a prior professional relationship with the judge. Finally, shortly after being appointed First Assistant, but while acting as a private attorney, he handled an "emergency" legal matter for a friend. In that matter, he failed to conduct a reasonable factual investigation before filing a petition for an emergency restraining order and failed to give notice to the opponent's counsel when he presented the petition. He was suspended for three years retroactive to the date of his interim suspension.
In re Berkel, 97 SH 115, Hg. Bd. Reprimand (March 24, 1999) (Michele Berkel) The respondent, a young assistant prosecutor, improperly attempted to gather information for use in a friend's contemplated divorce proceeding. She sent a letter to the Secretary of State's office using the State's Attorney's letterhead and inquired whether the friend's husband was publicly listed as an officer or agent for any registered business entities. In the letter, she falsely represented that the State's Attorney's office was investigating the husband. She also telephoned the Madison County Recorder's office and requested a search of their records for any public information relating to the husband, without disclosing that her request was unrelated to her official duties. The respondent was reprimanded.
In re Chrisler, M.R. 16097, 98 CH 58 (September 29, 1999). The attorney was convicted of misdemeanor theft for requesting and accepting payment from a client to represent her in a criminal case while he was employed as an assistant public defender and assigned to represent the client as part of his official duties. He was suspended for two years, retroactive to an interim suspension.
Practice and procedure before the attorney registration and disciplinary commission
In 1973, the Illinois Supreme Court enacted Rule 751, creating the Attorney Registration and Disciplinary Commission ("ARDC" or "the Commission") to exercise administrative supervision of the registration and discipline of members of the Illinois bar. Every attorney in good standing is familiar with the registration process that takes place annually between November and February, but most practitioners have little knowledge of disciplinary proceedings, which, although they bear many similarities to typical contested cases, are designed to formulate recommendations to the supreme court, rather than to arrive at final decisions.
Supreme Court Rule 753 creates the three boards that accomplish specifically designated functions in the disciplinary process: the Inquiry Board, the Hearing Board, and the Review Board. Members of the first two boards, which include attorneys and lay members, are appointed by the Commission, while members of the Review Board, all of whom are attorneys, are named by the supreme court. All of the boards act in panels of three members; Inquiry and Hearing Board panels consist of two lawyers and one layperson. In addition to its assigned duties in contested cases, each board is authorized to approve petitions to the supreme court for discipline on consent, under Supreme Court Rule 762(b). Consent petitions, if accepted by the court, eliminate the need to complete a contested proceeding.
The ARDC receives approximately 6,000 charges of attorney misconduct every year. While the vast majority of these charges are closed after investigation by staff lawyers, the more serious matters are brought before the Inquiry Board, which serves a function analogous to that of a grand jury. At a meeting of an Inquiry Board panel, an attorney for the Administrator (the chief executive officer of the ARDC) will present the basis for pursuit of a charge and ask the panel to vote a complaint, i.e., to agree that a formal disciplinary proceeding should be brought. Investigations conducted by the Administrator and proceedings before the Inquiry Board are confidential, as required by Supreme Court Rule 766.
If the Inquiry Board votes a complaint against a respondent, the Administrator prepares and files the complaint with the Hearing Board. After service of the complaint is made on the respondent, proceedings before the Hearing Board, and all subsequent steps in the disciplinary process, become a matter of public record.
Supreme Court Rule 753(c) requires that proceedings before the Hearing Board be conducted in accordance with the Code of Civil Procedures and supreme court rules, as modified by duly promulgated rules of the ARDC. The designated chairperson of a hearing panel will schedule prehearing and status conferences as necessary, to consider pleading and evidentiary issues, to monitor and supervise discovery, and to address other issues that may arise prior to hearing. See Commission Rule 260.
When a matter goes to hearing, it will be the Administrator's burden to prove the charges against a respondent by clear and convincing evidence, under Supreme Court Rule 753(c)(6). Hearings are conducted with the formality of civil trials. In addition to examination of witnesses by counsel, however, members of the panel will often direct questions to the witnesses during the formal proceedings. An attorney's character is always relevant in a disciplinary proceeding, but Commission rules specify that character evidence will not be received in the form of letters or affidavits; live testimony or, occasionally, evidence depositions are introduced by the respondent in most cases in an effort to mitigate the impact of any proved misconduct.
After oral closing arguments are presented, a matter is taken under advisement by the hearing panel, which will later issue a written report and recommendation summarizing the proceedings, analyzing the evidence, making formal findings as to each of the Administrator's allegations of misconduct, and recommending either that a particular discipline be imposed or that the complaint be dismissed. No post-trial motions are considered; a party's dispute with the Hearing Board's report and recommendation is preserved through the filing of a notice of exceptions with the Review Board.
The Review Board functions as an appellate tribunal, using procedures adapted from the supreme court's rules governing civil appeals. See Commission Rules 301-04, governing the filing of a notice of exceptions, the preparation of briefs and the presentation of oral arguments. Factual findings by the Hearing Board will be accorded deference by the Review Board, as they will by the supreme court, but the Review Board will reject or modify any findings that it determines to be against the manifest weight of the evidence. Supreme Court Rule 753(d)(3). That rule also authorizes the Review Board to make additional findings, if they are found proved by clear and convincing evidence; to approve, reject or modify the recommendation of the Hearing Board; to remand the case for further proceedings before the Hearing Board; or to dismiss the proceeding. Id.
There is no provision for any type of rehearing or reconsideration at the Review Board level. Reports and recommendations of the Review Board may be challenged by the administrator or the respondent by filing, in the supreme court, petitions for leave to file exceptions, which are prepared in a format similar to that of petitions for leave to appeal.
If neither the administrator nor the respondent wishes to contest a recommendation, after the Hearing Board or the Review Board has issued a report and recommendation, the matter must still be brought before the supreme court for entry of a final order. In such a case, the clerk of the Commission is directed by Supreme Court Rule 753 to file the report and recommendation as an "agreed matter," and the Administrator must file a motion in the Supreme Court, asking that the report and recommendation be approved and confirmed. Because the court considers these cases to fall within the exercise of its inherent and original jurisdiction, it reserves to itself the opportunity to reject or modify recommended dispositions, even in uncontested matters.
Legislative update 2000
By Marc C. Loro
One of the reasons that ISBA Presidents Cheryl Niro and Herb Franks advocated the formation of a Committee on Government Lawyers was the recognition that, traditionally, government lawyers have not joined the ISBA in numbers proportionate to their composition in the Illinois bar. Historically, government attorneys may have felt that the ISBA favored the interests of the private bar to the exclusion or detriment of the interests of the government lawyer. One of the most concrete ways that the Committee on Government Lawyers can have a measurable impact on the policies and programs of the ISBA is through the work of the Committee's Legislation Subcommittee. By demonstrating this impact through the work of the subcommittee, we hope to provide government lawyers with another reason for giving serious consideration to membership and participation in the activities of the ISBA.
The legislation subcommittee began reviewing and commenting on legislation in January 2000. To date, the subcommittee has concentrated its efforts on the following areas: administrative hearings (central hearing panel, rules of evidence, Administrative Procedure Act, Administrative Review Law, etc.); the Freedom of Information Act; the State Gift Ban Act; labor relations affecting state employees; the Open Meetings Act; pension and retirement bills for state employees; the State Records Act; the Local Records Act; and tort immunity/liability issues affecting public employees. By the end of the General Assembly's spring session, the Committee had examined fifteen bills. Of those, the Committee discussed or issued substantive comment on ten bills, and issued an official position on five pieces of legislation.
In addition to reviewing legislation, the subcommittee also has undertaken to provide a summary of those bills recently signed into law that may be of interest to the government bar.
Public Act 91-730
Amends the Open Meetings Act. Changes the current exemption for emergency security procedures to remove the requirements that the security procedures be for an emergency and that the danger be described in the motion to close the meeting. Makes the exemption applicable to threatened and reasonably potential dangers as well as actual dangers. Effective 01-01-01.
Public Act 91-733
Amends the Clerks of Courts Act. Authorizes circuit court clerks to accept payment of fines, penalties, or costs by debit card. Effective 01-01-01.
Public Act 91-791
Amends the Counties Code. Provides that the county board of a county that provides and maintains a geographic information system may provide for an additional charge of $3 for filing every instrument, paper, or notice for record. Provides that funds collected pursuant to this amendatory Act must be used to implement and maintain a geographic information system.
Further amends the Counties Code. Provides that $2 of the additional fee must be deposited into a special fund in the county treasury and used solely for the equipment, materials, and necessary expenses incurred by the county in implementing and maintaining the geographic information system. Provides that the remaining $1 must be deposited into the recorder's special fund and may be used, in the recorder's discretion, to defray the cost of implementing or maintaining the system. Effective 06-09-00.
Public Act 91-818
Amends the Illinois Notary Public Act. Provides that the Secretary of State may appoint and commission as notaries public for a one-year term as many persons who are residents of a state bordering Illinois whose place of work or business is within a county in this state as the Secretary deems necessary (now, may appoint only persons residing in a county in this state). Makes corresponding changes regarding the application for a commission as a notary public, the appointment of the applicant as a notary public, the authority of a notary public to act, and the termination of the notary public appointment. Provides that the Secretary of State may appoint and commission as notaries public persons who are residents of a state bordering Illinois only if the laws of that state authorize residents of Illinois to be appointed and commissioned as notaries public in that state. Effective 06-13-00.
Public Act 91-871
Amends the Criminal Code of 1961 and the Code of Criminal Procedure of 1963. Provides that in a homicide prosecution or in a prosecution for certain sex offenses, law enforcement agencies and state's attorneys' offices shall preserve subject to a continuous chain of custody, any physical evidence secured in relation to a trial and sufficient official documentation to locate that evidence. Establishes the time period in which that evidence shall be retained. Provides that the failure to preserve the chain of custody of the evidence or to retain the evidence for the specified period is a Class 4 felony. Changes the mental state necessary for the commission of the new offense relating to chain of custody from "knowingly" to "intentionally." Effective 01-01-01.
Public Act 91-877
Creates the Public and Appellate Defender Immunity Act. Provides that no public defender, assistant public defender, appellate defender, or assistant appellate defender, acting within the scope of his or her employment or contract, nor any person or entity employing, supervising, assisting, or contracting for the services of a public defender, assistant public defender, appellate defender, or assistant appellate defender, is liable for any damages in tort, contract, or otherwise, in which the plaintiff seeks damages by reason of legal or professional malpractice, except for willful and wanton misconduct. Effective 06-30-00.
Public Act 91-879