The ARDC has filed a complaint against a lawyer who filed a petition to vacate a 2001 battery conviction of a client. In the motion, the lawyer stated that the client was 17, but, in fact, she was 18 when she pleaded guilty. The case illustrates the enormous effect that an old conviction can have on a young person. The client was denied admission to nursing school because of a 2001 conviction, where she had no attorney present. For the lawyer, the difference between 17 (a minor) and 18 (an adult) was very significant.
The complaint alleges violations of Rule 3.1 (frivolous allegation), Rule 3.3(a)(1) (false allegation in a pleading) and 4.1(a) (false statement of fact to a third party).
The allegations of fact:
1. On April 6, 2001, the state’s attorney for Winnebago County charged Courtney A. Chester (“Chester”) with the offense of battery, allegedly occurring on March 29, 2001, a misdemeanor in violation of 720 ILCS 5/12-3(a)(2) of the Illinois Compiled Statutes. The clerk of the 17th Judicial Circuit Court for Winnebago County docketed the case as People v. Chester, case number 2001-CM-0002559.
2. In March and April of 2001, Chester was 17 years old.
3. On April 16, 2001, Chester appeared in court pro se and pled not guilty to the charge against her in case number 2001-CM-0002559.
4. On June 13, 2001, Chester appeared in court pro se, and the judge continued case number 2001-CM-0002559 to August 30, 2001, a date after Chester’s 18th birthday.
5. On August 30, 2001, Chester appeared pro se in court before the Honorable Brian Shore and pled guilty to, and was found guilty of, the battery charge. At that time, Judge Shore, pursuant to the conviction for the battery offense, entered an order sentencing Chester to conditional discharge for a period of 12 months.
6. On or about February 24, 2017, Chester applied to become a student in the nursing program at Rasmussen College. As part of her application, Chester consented to an independent background check. That background check identified Chester’s 2001 criminal conviction, and she was denied admission to the nursing program.
7. On or about March 1, 2017, Respondent and Chester agreed that Respondent would represent Chester in connection with her 2001 criminal conviction for battery. Respondent and Chester agreed, and Chester did pay Respondent $750 to represent her in the matter. Chester told Respondent that she had been 18 years old at the time she pled guilty to the battery charge in 2001. At that time, Respondent knew that Chester’s conviction was not eligible for expungement under 20 ILCS 2630/5.2, and so he agreed to request that a judge vacate her conviction.
8. Sometime between March 1, 2017 and May 17, 2017, Respondent spoke with Winnebago County Assistant State’s Attorney Joseph Lesner (“Lesner”) and asked Lesner whether he would consider agreeing to a motion to vacate Chester’s conviction in case number 2001-CM-0002559. At no point in that conversation did Respondent tell Lesner that Chester had been 18 years old at the time of her conviction or that her conviction could not be expunged. At no time before May 17, 2017 did Lesner tell Respondent that he would give favorable consideration to a motion to vacate the conviction.
9. On May 17, 2017, Respondent filed a motion to vacate Chester’s guilty plea and conviction in case number 2001-CM-0002559. In the motion, Respondent made the statement that “[Chester] was 17 years of age at the time of charging and sentencing.” Respondent also made the statement that because “[Chester] was only 17 at the time of the plea and conviction her plea and conviction should be properly voided.”
10. Respondent’s statements in the motion to vacate that Chester was only 17 years old at the time of her conviction were false because she was then 18 years old.
11. Respondent knew when he signed and filed the motion that the statements in paragraph 9 of this complaint were false because he knew that Chester had been 18 years old when she pled guilty to the battery charge and was sentenced.
12. Respondent sent a copy of the motion to vacate to Lesner and included a cover letter that repeated the statement that Chester had been 17 years old at the time of her battery conviction.
13. Respondent’s statement in the letter to Lesner that Chester was only 17 years old at the time of her conviction was false because she was then 18 years old.
14. Respondent knew when he made this statement that it was false because he knew that Chester was 18 years old when she pled guilty and was sentenced to conditional discharge.
15. Respondent appeared in court before Judge Shore in connection with the motion to vacate on May 23, 2017, and Judge Shore continued the matter until June 27, 2017.
16. Respondent and Lesner appeared in court before Judge Shore on June 27, 2017 in case number 2001-CM-0002559. When Judge Shore (referred to as “THE COURT”) called the case, he questioned Respondent about the motion to vacate:
THE COURT: Okay. The basis of the motion was the birthdate, but that’s not an issue anymore, is it?
RESPONDENT: Well, she was 17.
LESNER: She was 17.
THE COURT: Not at the time of the plea?
RESPONDENT: Yeah. I don’t know. I’ve still – –
17. At the June 27, 2017 hearing, Judge Shore also questioned Respondent regarding his statement in the motion to vacate that Chester was 17 years old when she pled guilty to battery:
THE COURT: Well, but you pled that she was 17 at the time she pled.
RESPONDENT: That’s what I believed when I wrote the motion, but subsequently I determined that she was, in fact, over that age, but – –
* * *
THE COURT: You did not research the pleading?
RESPONDENT: I did not research the date. I was researching other issues because that was my first option.
18. The statements Respondent made in open court relating to Chester’s age on June 27, 2017, as alleged in paragraphs 16 and 17 of this complaint, were false. Respondent knew that the statements were false because he knew that Chester had been 18 years old when she pled guilty and was sentenced.
19. In denying the motion on June 27, 2017, Judge Shore admonished Respondent for filing a “blatantly false allegation” that would have been “simply verifiable.”
Conclusion: Had the lawyer’s representations been more accurate, the client would have been better served.
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