Competence In Criminal Defense At Issue

An Illinois Hearing Board found that an attorney had rendered incompetent representation in defending a drug case and in an unrelated appeal.

The hearing board recommended a four-month suspension and restitution

Based upon the foregoing guidelines, we find that Respondent failed to provide competent representation to Hernandez. In reaching our finding, we have relied heavily upon the expert testimony of Brandstrader and DeLeon, which we found to be credible, compelling, and unrebutted. Both testified that no competent attorney would have failed to recognize the need to file a motion to suppress Hernandez’s inculpatory statement. Their opinions are buttressed by the fact that DeLeon did, in fact, file such a motion, which was successful and resulted in the case against Hernandez being dismissed.

We have considered Respondent’s testimony that she and Carroll chose not to file a motion to suppress as part of their defense strategy, but it does not change our finding. Even accepting her testimony, we find, based upon the expert testimony, that there was no reasonable basis upon which Respondents could conclude that this was a valid strategy for them to follow. The unrebutted testimony of DeLeon and Brandstrader established that the decision was so unreasonable and ill-advised that no competent attorney would have made it, and therefore that it did not meet the basic standards of competency to which Illinois attorneys are held.

The committee rejected a failure to communicate charge but sustained an unreasonable fee allegation

it is clear from all of the evidence that Respondent and Carroll followed a strategically unwise and objectively unreasonable course of action that could have landed Hernandez in prison or, perhaps worse, resulted in his deportation. Their representation of Hernandez was utterly ineffectual and could have had dire consequences for him. Moreover, Hernandez was required to spend another $10,000 to hire DeLeon, who was able to get the case against Hernandez dismissed. We therefore are persuaded by the experts’ opinions that Respondent was not entitled to collect any fee from Hernandez because she failed to represent him competently, which resulted in him having to hire another attorney to receive competent representation.

Misconduct in an unrelated appeal matter

In finding that Respondent failed to provide competent representation to Castellanos, we have relied upon Brandstrader’s unrebutted testimony about the egregious and inexcusable flaws in the appellate brief filed by Respondents, which Respondents could have attempted to rectify with a motion to supplement the record or a motion to file an amended brief, but did not. Moreover, the appellate brief filed by Respondents is in evidence. As is apparent from our own review of it, it is devoid of anything that could be construed as analysis of or argument regarding the issues Castellanos was raising on appeal. We thus find that the appellate brief was “inadequate to constitute even basically reasonable advocacy for” Castellanos.

Failure to communicate, no. Unreasonable fee, yes.

Sanction

we recommend that Respondent be suspended for four months and until she makes restitution of $4,500 to Hernandez and $11,250 to Castellanos.

(Mike Frisch)