Friday, August 8, 2008

Unauthorized Communication

An Illinois hearing board has recommended a 45-day suspension of an attorney who was found to have violated Rule 4.2 (unauthorized communication with represented party) by interviewing a defendant separately charged in a criminal case involving first degree murder out of the same incident in which the attorney's client had been accused. The board found:

The undisputed facts are that in April 2006 Anthony Bell and Christopher Mixon were charged by separate informations in Knox County with First Degree Murder arising out of the same incident. Bell was charged in Case Number 06 CF 241, based upon the theory that Bell was the person who actually shot and killed Thomas Lynch.  Mixon was charged in Case Number 06 CF 242 on the basis of accountability. The State’s Attorney’s theory for Mixon’s accountability was that Mixon handed the gun to Bell immediately before Bell shot and killed Lynch. The evidence to support the allegation that Mixon had handed the gun to Bell came from Bell’s post-arrest statement to the police. Bell’s statement was videotape and transcribed. In his statement, Bell claimed that Mixon handed him the gun immediately before Bell fatally shot Lynch, and that he (Bell) would not have taken any action against Lynch "[i]f Chris wouldn’t have handed [Bell] the gun."

The public defender, James Harrell, was appointed to represent Bell, and the alternate, or conflict, public defender, Geoffrey Campbell, was appointed to represent Mixon. Campbell became ill, and the Respondent was appointed to replace Campbell as Mixon’s attorney on May 8, 2006. Anthony Bell sent a letter to the Respondent on May 10, 2006, stating that he was not satisfied with Mr. Harrell’s representation of him, and asked if the Respondent "would pick up my case." Bell also stated in his letter that he would testify that Mixon did not hand him the gun. After receiving Bell’s letter, the Respondent asked her investigator, Mac Glass, to visit Bell at the jail and find out if Bell was willing to speak with the Respondent. Glass met with Bell, and reported to the Respondent that Bell would speak with her. On May 23, 2006, the Respondent went to the county jail, accompanied by a court reporter and Mr. Glass, and spoke with Bell. The Respondent did not contact Mr. Harrell about her interviewing Bell. Bell gave a statement to the Respondent at the jail and a transcript of the statement was prepared by the court reporter. In the transcribed statement, Bell claimed that Mixon had not handed the gun to Bell. The Respondent did not provide Mr. Harrell with the transcript of Bell’s statement.

The hearing board rejected the suggestion that the Rule did not apply to related cases where defendants in related cases were not jointly charged:

We note that the refusal of a co-defendant’s counsel to allow a respondent to speak with the co-defendant is not a necessary requirement for a violation of Rule 4.2. A violation occurs when a respondent does not "obtain the prior consent" of the co-defendant’s counsel. (Rule 4.2) However, communicating with a co-defendant after his or her attorney has refused consent to do so, is a "blatant disregard of his co-counsel’s wishes" and more aggravating. Morelli, 01 CH 120, Review Board Report at 15.

We also note that we reject the Respondent’s testimony that she did not think Mixon and Bell were "co-defendants." The Respondent was the only one involved in the Mixon/Bell matter who indicated that Mixon and Bell were not co-defendants. Public Defender Harrell believed Mixon and Bell were co-defendants. Alternate Public Defender Campbell believed they were co-defendants. State’s Attorney and now Circuit Court Judge Mangieri referred to Mixon and Bell as co-defendants. Finally, the judge presiding at Mixon’s trial described Mixon and Bell as co-defendants. Thus, the decision in Morelli, as well as the decisions set out below, provided notice that the Respondent’s conduct violated Rule 4.2.

The attorney also was found to have violated Rules 1.16 (withdrawal from representation) and 8.4 by failing to provide Bell's transcribed statement to Mixon's new counsel. The dishonesty finding was based on the false denial that she had any such statement. (Mike Frisch)

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