Tuesday, October 9, 2012

Retained Counsel No Bargain

A defendant who was convicted of attempted first degree murder and aggravated battery with a firearm became unhappy with the appellate representation of the public defender. Through his mother, he retained as counsel the father of a friend. The retained attorney's ensuing neglect caused the appeal to be dismissed.

An Illinois Hearing Board has recommended an eighteen-month suspension:

In aggravation we consider, the harm caused by Respondent's inaction. As a consequence of Respondent's misconduct, Lance's appeal was dismissed for want of prosecution. Respondent's inaction deprived Lance of his constitutional right to appeal his criminal conviction. The Supreme Court has recognized that since this type of harm "is less susceptible to monetary valuation or remedy than the loss of a civil suit for damages, more severe discipline is appropriate to deter neglect in criminal cases than in civil cases." See In re Ring, 141 Ill. 2d 128, 145, 565 N.E.2d 983 (1990). Further, Respondent's failure to provide Lance with copies of his transcripts has delayed Lance in seeking any alternative post-conviction relief and required Lance to file pro se motions with the Appellate Court, which has needlessly burdened both the court and Lance.

Additionally, Patsy was negatively affected by Respondent's misconduct. While Patsy ultimately received a refund of the $10,000 retainer fee she paid Respondent, she was without that money for approximately two years. In addition, after contacting the ARDC about Respondent, Patsy had to wait another year for her refund, which she ultimately received in full after the hearing in this matter. Given Patsy's poor financial circumstances, the deprivation of this money had a
significant impact on her. Moreover, Patsy, after having paid Respondent, did not have the financial means to hire another attorney to represent her son, which has also delayed Lance in seeking post-conviction relief. Furthermore, the legal profession was clearly harmed by Respondent's conduct, as evidenced by Lance's testimony that he will never again trust another attorney and Patsy's testimony that she no longer trusts anyone.

The attorney had a record of prior discipline. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/10/adefendant-who-was-convicted-of-murder-became-unhappy-with-the-appellate-representation-of-the-public-defender-through-his-m.html

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