Thursday, October 25, 2012

Letter To Prosecutor Violated Defense Attorney's Duty Of Confidentiality

The Illinois Review Board has recommended a six-month suspension of an attorney for misconduct in the course of defending two criminal cases.

In one case, the client had denied any involvement in a murder for which he had been charged. Five days before trial, the client's story underwent a dramatic change and was revealed to the attorney.

The attorney violated his duty of confidentiality by disclosing the new story to the prosecutor:

The next day Respondent faxed a letter to Assistant State's Attorney, Duke Harris. In the letter, Respondent described in detail the shooting scenario that [his client] Mays had disclosed to Respondent. He informed Harris that his client and Shaw went to Spinks' apartment. Spinks opened the door, but when he saw the defendant and Shaw, he tried to close the door. Mays tried to "put his arm through the door to get in." According to the letter "the door hit the gun which Shaw had in his hand and it discharged" killing Spinks. The Respondent hoped the letter would persuade Harris that a lesser offense charge would be more appropriate for Mays. Respondent explained to the Hearing Board that his letter was "an attempt to get a plea agreement" and to let the assistant state's attorney know what testimony "my client would have to offer," presumably against Shaw. He did not consider that the letter could be viewed as an admission by Mays to the crimes of home invasion or felony murder. He told the Hearing Board that he did not know the felony murder law. On August 27, 2009, in an effort to persuade two witnesses to talk to him the Respondent also sent letters to Kathleen Faber and Roger Brown, in which he disclosed the information Mays had told him about the shooting scenario.

On August 28, 2009, Respondent received an e-mail from Assistant State's Attorney Harris informing the Respondent that Harris was going to file additional charges of home invasion and felony murder against Mays. On August 31, 2009, he did so filing a motion to file the additional charges against Mays. Respondent objected, claimed he was surprised by the new charges and requested a continuance of the trial. At the hearing on the motion, the prosecutor argued that the letter was "tantamount to a confession to a felony murder", that the charges could not come as a surprise to Respondent, and that it was therefore appropriate for the State to add the additional charges. The court agreed and granted the State's motion. The court denied Respondent's request for a continuance.

The attorney attempted to withdraw on the morning of the trial. The court denied the motion and the defendant was convicted.

In the disciplinary case, the attorney conceded that he did not have the client's informed consent to the disclosure. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/10/the-illinois-review-board-has-recommended-a-six-month-suspension-of-an-attorney-for-misconduct-in-defending-two-criminal-case.html

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