Tuesday, April 16, 2013

You Must Remember This, A Kiss Is Just A Kiss

An Illinois Hearing Board found that an attorney had engaged in misconduct worthy of a public censure but rejected allegations of ethical violations relating to the attorney's hugging and kissing a jail inmate:

We first find there was no evidence that Respondent used his status as attorney to obtain access to the interview room for the purpose of having personal physical contact with Miller. The Respondent's uncontradicted testimony was that he first met Miller at a social function, and knew both Miller and her mother. Correctional Lieutenant Candice Cain testified that Respondent expressly told her that he was Miller's attorney and also a "family friend." (Tr.139). He had previously presented Miller's mother. Respondent was informed that Miller was arrested and in the Sangamon County Jail by Miller's mother. Miller's mother asked him to visit Miller in the jail. Respondent explained that he already represented Miller in a visitation matter in another county, and he was going to talk with her about representing her in the matter for which she had been arrested. When Respondent went to the jail on November 6, 2002, he signed in as an attorney, and then talked with Miller about the matter for which she was arrested. Consequently, based upon the Respondent's reasonable and uncontradicted testimony, the allegation that he "used his status as Miller's attorney to obtain access to Miller for the purpose of having personal physical contact with her" was not proved.

It was also alleged in the Amended Complaint (par. 37), and mentioned by Administrator's counsel in closing argument (Tr. 299), that Respondent insisted the door to the room where he was meeting with Miller be closed. We find nothing suspicious or inappropriate for Respondent wanting the door to the interview room to be closed. Rather, we find it reasonable and appropriate for an attorney to try to assure that his or her conversation with a client or potential client remains confidential. It would serve little purpose for an attorney to visit a client or potential client in an interview room if the door remained open, so that anyone standing outside the doorway could overhear their conversation.

The testimony of Respondent Lieutenant Cain indicated that Respondent was not only the attorney for Miller, but that they were also friends. The day before his visit with Miller at the jail, he won his first election, having been elected to the Sangamon County Board. The behavior of Respondent and Miller in kissing, embracing, and "holding hands" as observed by then Corporal Tammy Powell could have been reasonably related to their excitement and joy of his election, rather than contact of a sexual nature. Additionally, Respondent explained that Miller was distraught by being in jail, and he put his hand over her hands to comfort her.

Powell also observed Respondent and Miller sitting face to face, a table between them, and with Miller's knees "between his legs." However, she did not indicate that their knees or legs touching. Powell also saw Respondent "rubbing her neck and shoulders." Respondent acknowledged that he gave Miller a "neck massage" after she complained of having an "ache in her neck." Additionally, there was no testimony that Respondent "grasped [Miller's] buttocks," as alleged in the Amended Complaint.

Furthermore, based upon the observations of the Respondent's behavior with Miller, Lieutenant Cain terminated the Respondent's visit, and told him "his behavior was unethical and it would not be tolerated within the facility." (Tr. 137). During closing argument, Administrator's counsel stated
that Respondent's behavior was "an incidental violation of jail policy." (Tr. 300). However, there was no evidence of what the alleged jail policy was or that any such policy was posted or otherwise made known to attorneys and other visitors. Respondent testified that he was not aware of any jail rule that prohibited all physical contact. Without any evidence as to what the jail policy, rule or regulation was regarding physical contact in November 2002, we have no basis on which to find that Respondent violated any jail policy.

We also note that there was no evidence that the Respondent's conduct constituted any security concern within the jail or that the physical contact between Respondent and Miller was other than fully consensual...

Based on the above, we find that the Administrator did not prove by clear and convincing evidence that the Respondent engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a) (5) of the Illinois Rules of Professional Conduct (1990).

(Mike Frisch) 


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