Tuesday, October 19, 2010

Conviction Required?

The Illinois Review Board has affirmed a hearing board finding that an attorney engaged in dishonest conduct by improperly notarizing four documents but overturned the finding that the attorney committed a criminal act in violation of the applicable Illinois ethical rule. The Review Board reduced the proposed sanction from a nine-month suspension to a public censure.

The Review Board's analysis of the "criminal act" provision of Rule 8.4:

Rule 8.4(a)(3) states, in part, that "[a] lawyer shall not…commit a criminal act." Therefore, in our view, a finding by either the Hearing or Review Board that a criminal act was committed should not be made in the absence of a criminal conviction rendered by a court of law.

A Hearing or Review Board panel may find, based on clear and convincing evidence, that a lawyer violated a statute that has criminal penalties, and may sanction him based on that violation if his conduct was contrary to a professional conduct rule or established precedent. But we conclude that it cannot take the additional step of finding him guilty of "a criminal act" if there has been no court rendered conviction. The reasons for this conclusion are implicit in our system of justice. A criminal defendant is entitled to trial by jury and his guilt must be proved beyond a reasonable doubt, not by clear and convincing evidence.

Supreme Court precedent supports our conclusion. See, for example, In re Harris, 93 Ill.2d 285, 292-94, 443 N.E.2d 557, 66 Ill. Dec. 631 (1982), which states:

Attorney disciplinary proceedings are not criminal in nature….a disciplinary proceeding is not to be equated with a criminal proceeding, nor is the respondent attorney entitled to the same specificity as to the offense charged, or to the full panoply of rights afforded a criminal defendant.

The point we make is illustrated most vividly by In re Ettinger, 128 Ill.2d 351, 368-69, 538 N.E.2d 1152, 131 Ill. Dec. 596 (1989). In that case a lawyer who had been acquitted of bribery in a federal criminal trial was subsequently disciplined for the same conduct. The Supreme Court affirmed the principal that "an acquittal in a criminal proceeding against an attorney will not act as a bar to subsequent disciplinary proceedings based upon substantially the same conduct," pointing out that "the burden of proof in the two proceedings is different."

Although the issue of whether the lawyer had committed "a criminal act" never arose in the disciplinary proceeding in that case, clearly no Hearing or Review Board panel, in the face of a criminal court acquittal, could have found that the lawyer had committed "a criminal act." And so it must be with all cases. In short and from a legal perspective, it simply cannot be known whether "a criminal act" has been committed until there has been a conviction rendered by a court of law.

Because there was no evidence presented that Respondent was convicted of a crime with respect to the issues in this disciplinary case, we conclude that the Hearing Board erred in finding a violation of Rule 8.4(a)(3).

The attorney has a record of prior discipline. Howver, the misconduct found here took place before the conduct that had led to the earlier sanction.

My own view is that the legal analysis here is flat-out wrong. The rule prohibits the commision of a criminal act. It does not, by its plain terms, require a criminal conviction. Many criminal acts are not prosecuted for a wide variety of reasons. This does not render the conduct meaningless as a matter of legal ethics.

The D.C. Court of Appeals took a contrary view in In re Gil, 656 A.2d 303 (D.C. 1995).

(Mike Frisch)


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But doesn’t your reading lead to an undesired consequence? If the lack of conviction is not considered dispositive, then surely the conviction must also not be considered dispositive? In other words, if the disciplinary prosecutor is allowed to argue that the attorney committed a criminal act despite the absence of a conviction, then surely the attorney should also be allowed to argue that he did not commit a criminal act despite the presence of a conviction in a criminal proceeding?


Posted by: FixedWing | Oct 19, 2010 2:31:23 PM

So whatever happened to "innocent till proven guilty"? What happens if there is no "civil" equivalent? Absent a finding of guilty, how can one be charged w/something that cannot be proven at a lesser burden. Some criminal offenses can only be tried in criminal court and there is no alternative to anything lesser, when one is innocent how can a charge then persist? If an offense can only be brought in a criminal court, then how does jurisdiction apply to any other court w/o that being a criminal court?

Posted by: roibn kay | Oct 25, 2010 12:05:27 AM

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