Tuesday, November 16, 2010

Don't Leave Files At The Xerox Machine

An Illinois Hearing Board has issued a report and recommendation in a case alleging three counts of misconduct against a former public defender. The attorney had served as a public defender from 1992 to April 2009, rising to a senior position at the time of the alleged ethics violations.

Two of the charges involved allegations that he had misrepresented himself as a member of the state's attorney office. The hearing board found that these charges had not been proven by clear and convincing evidence.

The third charge was a matter involving an allegation that he had copied and used materials mistakenly left at a xerox machine by another attorney who was serving as a guardian ad litem in a case where he represented a parent.  The GAL had taken the copies but left the originals on the machine.

The office had a policy that prohibited access to confidential information when public defenders represented adverse interests in such matters. The attorney openly used the materials (which he would have later gotten in discovery) in court on behalf of his client. He was confronted by his colleagues and attempted to justify his use of the materials. The prosecutor's office notified the ARDC.

The hearing board found:

The evidence established that the Lake County Public Defender’s Office has a well-established policy in place in cases such as this which involve the office’s dual representation of both parents and children in abuse and neglect matters. That policy is designed to address the serious ethical concerns inherent in its representation of adverse parties in these cases. The evidence showed that potential problems associated with this practice, as well as the ethical issues involved, are well-known. As [the Public Defender] testified, these issues have been the subject of various court decisions as well as ethics opinions which have considered the propriety of such arrangements...ISBA Opinion 91-17 specifically addresses the particular problems associated with arrangements similar to the one at issue here, which involves public defenders who share a common office and support staff representing both parents and children in abuse and neglect matters.

In response to these concerns, the Lake County Public Defender’s Office has implemented various measures that are specifically designed to deal with these ethical issues. One matter of particular concern is the potential for improper exchange or sharing of information between the attorneys on opposite sides of the case as a result of the shared use of office space, equipment, and support staff. In order to address this issue, the office has a policy which prohibits the parent attorneys and GAL attorneys from sharing information or having access to each other’s files. The office suite has also been specifically set up and designed with this issue in mind, so that the parent attorneys and the GAL attorneys have their offices located at the opposite ends of the suite. The two different types of attorneys also report to different immediate supervisors and store their files separately, either in their own offices or their own file cabinet.

The evidence further established that Respondent was clearly aware of the existence of this policy as well as the significant ethical concerns underlying it. Although the policy was not in writing, it is clear from all of the evidence presented that is was well-known and understood by everyone who worked in the office. With the possible exception of Respondent, this was supported by the testimony of every witness who testified at the hearing, including Respondent’s own character witness. The existence of the policy was also further reinforced through these various additional means, including the physical layout of the office space and the delineation of supervisory responsibilities. Respondent had not only worked in the Public Defender’s office for many years, he was supervisor of the Juvenile Division. As such, he was actually one of the individuals responsible for ensuring the policy was being followed. Based on all of the evidence presented, we believe that there can be no doubt that Respondent both knew about the policy and knew that the policy prohibited him from having access to the GAL attorneys files and other materials in cases of this nature.

In light of the foregoing, we further find that Respondent’s actions under the circumstances were not only improper and in violation of established office policy, they were also dishonest. It is clear from the evidence that Respondent knew when he came across the documents on the copier related to the Jaden G. matter that they did not belong to him. It is also evident that he knew that they belonged to the GAL and were not intended for his use. Respondent admitted as much when he said that he was angered by his realization that the GAL had received the records that he had been waiting for and they had not yet been provided to him. It is also clear that he knew that established office policy prohibited him from having access to the materials such as this, which belonged to his adversary in the case. While he may have initially come across the materials innocently, he had to know that he had no right to take or copy the documents for himself. For him to do so under all of these circumstances was clearly dishonest.

We also find it significant that Respondent failed, upon finding the documents, to take any real steps to investigate the matter further before deciding to take and copy the materials. Although he apparently left a message for [the prosecutor], he did not specifically mention his discovery of the documents on the copier. Nor did he research the issue or attempt to contact [the GAL] or [the Public Defender] by phone, even though he had both of their cell phone numbers. Moreover, he apparently did not even mention the matter to [the GAL] at the office the next morning before they both went to court. We believe that Respondent’s failure to undertake any further inquiry regarding the matter or to even notify anyone involved of his actions is further evidence that he knew that what he was doing was wrong.

Respondent suggested at the hearing that it was not improper for him to take the documents because he needed them to prepare for the hearing, he had a right to receive them anyway, and they should have been provided to him in discovery. He pointed out that the judge confirmed this the next morning when he determined that was entitled to receive all three pages.

He also noted that nothing in the materials was privileged or confidential and that his actions did not result in the breach of any client confidentiality.

As to sanction:

Respondent’s misconduct here in improperly taking and copying documents that did not belong to him is clearly serious, particularly because it involves dishonesty. Through his actions he violated a well-known office policy that was specifically implemented to address serious ethical concerns. His behavior is particularly inexcusable in light of his role as a supervisor as well as his extensive experience in the office. An attorney of Respondent’s stature should set an example to others with respect to proper and ethical behavior, not bend or break the rules himself.

While we believe that his actions were clearly improper, we also note that he was not motivated by any personal or financial gain. Rather, as even the Administrator conceded, he was driven by his desire to aggressively and zealously represent the best interests of his clients. We also recognize that he had an honest belief that he was entitled to receive the documents in order to prepare his case and that they should have been produced to him through discovery. In addition, we note that he disclosed his actions promptly in court the next day and made no attempt to lie about the matter or to conceal his behavior. Further, there is no evidence that his misconduct caused any actual harm, either to his client, the other parties in the case, or the public. Nor did it result in the breach of any client confidentiality. While these considerations clearly do not negate or excuse Respondent’s actions, they do mitigate to some extent the seriousness of his wrongdoing.

There was also other significant mitigating evidence presented here. The evidence demonstrated that Respondent has devoted his entire legal career to public service as an attorney with the Lake County Public Defender’s Office. Much of this time has been spent working in the Juvenile Division on delinquency and abuse and neglect matters, an undoubtedly challenging and worthwhile area of practice. He has also been involved in various charitable and other volunteer activities, both within the legal profession and the community at large. He has authored a number of published articles on juvenile and other criminal law matters and has participated in various legal seminars geared toward educating and improving the profession. He spent three years mentoring a child through the Big Brothers and Big Sisters program and received an award for his efforts in this regard. He has also spent a considerable amount of time volunteering at local schools, with the Boy Scouts, and for an organization that focuses on juvenile delinquency issues. Respondent’s volunteer and charitable activities are significant and commendable.

We also consider in mitigation that Respondent has not been the subject of any prior disciplinary action throughout the course of his 18 years in practice. Further, he acknowledged at the hearing that he exercised poor judgment in the way that he handled the matter and expressed regret and remorse. He also presented several character witnesses who attested to his overall integrity and favorable reputation for honesty.

One member would find that one of the misrepresentations had been proven but not the file copying charges. (Mike Frisch)

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