Thursday, November 8, 2007

Incompetent or Unethical?

A recent decision of the Illinois Review Board underscores the distinction between marginal and unethical performance by an attorney. The lawyer represented a client in a case charging aggravated sexual assault. The contested issue was the quality of the lawyer's attempt to impeach a state's witness. The board upheld a finding that the Administrator did not meet the burden of proof for an ethical violation in the lawyer's representation:

"Incompetence and neglect are not identical, and a finding that an attorney engaged in neglect does not require a finding that he or she was also incompetent. In re Slaughter, No. 97 CH 82 (Review Board Nov. 9, 1999), approved and confirmed, No. M.R. 16460 (March 22, 2000). Not every attorney error constitutes incompetence. In re Mason, 122 Ill. 2d 163, 169-70, 522 N.E.2d 1233, 119 Ill. Dec 374 (1988). Conduct, even if legal malpractice, is not always a disciplinary violation. Mason, 122 Ill. 2d at 169-70, 522 N.E.2d 1233, 119 Ill. Dec 374. Similarly, a finding that a defendant has not received the effective assistance of counsel does not automatically translate into an ethical violation. In re Washington, No. 99 CH 58 (Hearing Board Dec. 31, 2003), affirmed in part, sanction modified, No. 99 CH 58 (Review Board Oct. 27, 2004), approved and confirmed, No. M.R. 19844 (Mar. 18, 2005); In re Algee, No. 96 SH 90 (Hearing Board June 30, 1997); In re Gursel, No. 93 CH 539 (Hearing Board Feb. 7, 1995). Instead, the respondent’s performance as a whole must be considered. See Mason, 122 Ill. 2d 163, 522 N.E.2d 1233, 119 Ill. Dec 374.

Here, there were a number of errors and certain specific points as to which [the lawyer's]’s performance was properly criticized. However, given his performance as a whole, the Hearing Board’s finding that the Administrator did not prove incompetence is not against the manifest weight of the evidence.

[The lawyer] articulated a cogent theory of defense, in opening statement and closing argument. He cross-examined prosecution witnesses in a manner consistent with that theory."

This case reinforces the idea that a disciplinary prosecution should not second-guess an attorney's exercise of professional judgment. Lawyers are far more likely to be sanctioned for inaction rather than poor performance.

The board found other violations and recommends a six-month suspension. (Mike Frisch)

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