Friday, March 2, 2018
An Illinois Hearing Board recommends a year and a day suspension for findings neglect while rejecting a series of other charges levied by the Administrator
This matter arises out of the Administrator's four-count Complaint alleging Respondent engaged in dishonesty by knowingly making a false statement to a police officer (Count I); committed the criminal act of possession of cocaine and thereby also engaged in dishonesty (Count II); committed the criminal act of driving under the influence (Count III); and failed to act with reasonable diligence, failed to keep a client reasonably informed and failed to expedite litigation (Count IV). Respondent did not answer the Complaint, and the allegations were deemed admitted. Respondent failed to appear at her disciplinary hearing.
Count I alleged
On October 13, 2016, Respondent left her home alone, driving a white pickup truck. She drove to Bogies Sports Bar in Morris, Illinois. After leaving Bogies, Respondent crashed her truck into a parked utility vehicle. At about 11:20 p.m., Mia Shannon, a concerned citizen, called 911 and reported a car crash. Shannon saw Respondent's white truck traveling on west Chapin Road in Morris and saw the truck crash into a parked utility vehicle. Morris Police Officer Mark Vanderploeg was dispatched to the area to investigate.
At 11:23 p.m., Officer Vanderploeg observed that a white pickup truck had crashed into a parked heavy duty utility vehicle on Chapin Street. No one was inside or near the pickup truck. Inside the truck, Officer Vanderploeg found a deployed airbag with blood on it, an earring in the driver's seat, an empty plastic cup next to spilled liquid and a strong odor of alcohol, drug paraphernalia with residue, cannabis, and pills.
After conducting some investigation about the circumstances of the crash, Officer Vanderploeg went to a hospital where he spoke with Respondent. Her speech was slurred and she smelled of alcohol. Respondent told him that her truck had been stolen. However, Respondent had crashed her truck on Chapin Road. Her statement that her truck was stolen was false, and she knew it was false.
Based upon the above information regarding the overall physical and mental condition of Respondent on the night in question, we are unable to find that Respondent knowingly sought to deceive the police by making a false statement about her vehicle being stolen. Rather, we find it much more likely that Respondent made statements while in a confused state of mind based upon alcohol use, physical injuries arising from the accident, or both.
Thus, we find that the Administrator failed to prove that Respondent engaged in dishonesty, fraud, deceit or misrepresentation by knowingly making a false statement to a police officer, as charged in Count I.
Count II arose from these alleged facts
On December 24, 2016, at 1:42 a.m., Deputy Butterfield and Sergeant Clampitt, both of the Grundy County Sheriff's Office, located Respondent inside Honest Abe's Tavern, a bar in Will County. Respondent was wanted in Will County on a failure to appear warrant stemming from a Joliet traffic ticket. The officers entered the bar and saw Respondent inside. They told bar security personnel that they were there to speak to Respondent. Security informed the officers of Respondent's exact table inside the bar.
Security personnel informed Respondent that the police were there to speak with her. Respondent then picked up her jacket and walked over to the bar section of Abe's. Respondent had two small plastic bags containing cocaine and cannabis inside her jacket. She walked over to Philip Centracchio and handed him both plastic bags. Both Respondent and Centracchio were immediately detained by deputies.
While being detained, Centracchio stated that the plastic bags did not belong to him and that Respondent had walked up to him and handed them to him. The contents of the plastic bags were suspect cannabis and cocaine, and one bag field tested positive as cocaine.
On December 24, 2016, Respondent was arrested for possession of cocaine and charged with Possession of a Controlled Substance in case number 2016CF282 in Grundy County. A custodial search of Respondent found drug paraphernalia (a bowl) with cannabis residue. The suspect cannabis was entered into evidence. As of the date of the filing of the disciplinary Complaint, the criminal case was still pending in Grundy County.
Nope as to dishonesty
The unlawful possession of a controlled substance, including cocaine, under 720 ILCS 570/402, does not include any element of dishonesty or deceit. Additionally, we have not been cited to and we have not found any authority to support a finding of dishonesty based upon the possession of a controlled substance. We note, for example, that in Scarnavack, 108 Ill. 2d at 459, the respondent engaged in misconduct by possessing .46 grams of cocaine. However, the findings of misconduct did not include dishonesty. Thus, we find that the Administrator failed to prove that Respondent engaged in dishonesty, fraud, deceit or misrepresentation by knowingly possessing cocaine.
And Count III
On January 15, 2017, Respondent visited Fergy's Bar & Grill on Main Street in Seneca, Illinois. Also on that date, Police Officer Michael Hetelle was on duty in the area of Main Street in Seneca. Shortly after 3:00 a.m., Respondent and another person were in the parking lot of Fergy's yelling at two other people across the parking lot. Respondent and the person with her got into a pickup truck with Respondent driving.
Respondent drove out of the Fergy's parking lot onto the roadway. After driving about two blocks, Respondent drove through a stop sign and was pulled over by Officer Hetelle. Inside the truck, there was a plastic cup containing alcohol. Respondent admitted to Officer Hetelle that she had consumed alcohol before driving that evening. Officer Hetelle smelled alcohol on
Respondent's breath, observed that her eyes were glassy and red, and that her speech was slurred. Respondent agreed to submit to a "standardized field sobriety test" (SFST). Respondent failed all SFSTs that were administered. Respondent refused to submit to a preliminary breath test.
Respondent was arrested for driving under the influence and taken to the police station. She was again offered a breath alcohol test, but declined to take it. A Summary Suspension was issued to Respondent. She was also issued citations for disobeying a stop sign, driving under the influence, and illegal transportation of alcohol. She was given a notice to appear in court on March 3, 2017, at the LaSalle County Courthouse, in case numbers 17 TR 465, 17 DT 21, and 17 TR 466.
Based upon the overall facts alleged, the exhibits presented by the Administrator, and the lack of any allegations regarding the arresting officer's education and experience, we are unable to find by clear and convincing evidence that Respondent committed the criminal act of driving under the influence of alcohol.
Thus, we find that the Administrator failed to prove by clear and convincing evidence that Respondent committed the criminal act of driving under the influence in violation of 625 ILCS 5/11-501, and as charged in Count III.
The Administrator requested the sanction of suspension for two years and until further order of the Court. (Tr. 38). We note that the Administrator's recommendation was based upon all of the charges of misconduct in the four-count Complaint and that we have found that the misconduct charged in Count I, a portion of Count II, and Count III was not proved.
The Respondent engaged in misconduct by committing the criminal offense of unlawfully possessing the controlled substance of cocaine. (Count II). The Supreme Court has made it clear that an attorney who commits the criminal act of unlawfully possessing even a small amount of cocaine demonstrates a lack of respect for the law and violates an attorney's solemn duty to encourage respect for the law. In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1 (1985).
Similarly, in In re Dempsey, 94 CH 454, M.R. 11064 (May 26, 1995), the Hearing Board stated that the attorney's "DUI conviction demonstrates his disrespect for the laws of this State" and "diminishes the public's confidence in the entire legal profession." Dempsey, 94 CH 454 (Hearing Bd. at 8-9). See also In re Schickendanz, 01 SH 108, M.R. 18725 (May 22, 2003); In re Law, 00CH 53, M.R. 17664 (Nov. 28, 2001). Thus, the Respondent's commission of a criminal act is serious misconduct.
Respondent also neglected a client's case and failed to take any steps to keep her client informed or to respond to several inquiries from her client over a five month period. (Count IV). Although the neglect occurred in one case involving one client, the Respondent failed to appear in court on three separate occasions The Supreme Court has stated that "[u]nethical conduct, especially in attorneys' relationships with clients, must not and will not be taken lightly by the profession or by this court." In re Gerard, 132 Ill. 2d 507, 541, 548 N.E.2d 1051(1989). The Court has also stated that the "neglect of a legal matter is in itself sufficient ground for suspension." In re Houdek, 113 Ill. 2d 323, 327, 497 N.E.2d 1169 (1986).
In aggravation, we consider that the Respondent's failure to appear in court for scheduled court proceedings caused harm to her client. Her failure to appear or timely appear in court caused her client Gilbert Milton to waste his time by going to court on five separate occasions when his cases were continued because of Respondent's absence or very late arrival. Respondent's neglect also caused her client to request and obtain appointed counsel to represent him after more than seven months of inaction and delay by Respondent. Additionally Respondent's neglect caused her client needless anxiety. In In re Smith, 168 Ill. 2d 269, 285, 659 N.E.2d 896 (1995), the Supreme Court stated "[r]espondent's claim that his clients did not suffer from his misconduct ignores the anguish that his inaction necessarily inflicted upon his clients."
...After considering the nature of the Respondent's misconduct, the aggravating factors, the mitigating factor, the cases set out above, and the purposes for a disciplinary sanction, we conclude that a suspension for one year and until further order of the Court is appropriate in this case to protect the public, the legal profession, and the administration of justice. This will require Respondent to petition and establish her fitness before she is again allowed to engage in the practice of law.