ARDC Proposes 30 Day Suspension For Lawyer Who Failed to File Post-Conviction Petition

This is a recommendation of the ARDC Hearing Board decided on September 30, 2019. A lawyer was retained to file a post-conviction petition for a client who had been convicted of aggravated criminal sexual abuse. The lawyer had doubts about filing the petition because more than three years had elapsed since the date of conviction. She was charged with charged with failing to keep a client reasonably informed about the status of the matter, failing to promptly comply with reasonable requests for information and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rules 1.4(a) (3), 1.4(a)(4) and 8.4(c) of the Illinois Rules of Professional Conduct (2010). This appears to be a case where the lawyer could have avoided discipline by (a) refunding the client’s fee; and (b) telling the client the truth that she had not and could not file a post-conviction petition.

In May 2001, Randall Baker was convicted of aggravated criminal sexual abuse. The conviction was based on Baker’s guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), which permits a defendant to consent to imposition of a sentence without admitting guilt. Baker was sentenced to probation, which he completed in 2005. An attorney other than Respondent represented Baker in those proceedings. (Jt. Stip. at par. 1; Adm. Ex. 2 at 7, 11). 

As a result of this conviction, Baker was required to register as a sex offender throughout his lifetime. On or about August 10, 2017, Baker consulted with Respondent about challenging this requirement. They agreed that Respondent would represent Baker in filing a post-conviction petition. Baker gave Respondent a check for $10,000 for her fee. (Jt. Stip. at pars. 2, 3, 4).

Respondent and Baker were scheduled to discuss the case on October 26, 2017. That day Respondent sent Baker a text message, stating she needed to reschedule their conference because her son was in the hospital and extremely ill. Respondent knew this statement was false. (Jt. Stip. at pars. 5, 6). 

Between October 26 and November 3, 2017, Baker sent Respondent several text messages asking about the status of his case. As of November 2, 2017, Respondent had not replied to any of those requests. (Jt. Stip. at pars. 7, 8). 

On November 3, 2017, Respondent sent Baker a text message, stating that she had lost her phone at the hospital and had to “regroup and recover all of its info.” (Jt. Stip. at par. 9). That statement was also false because Respondent had not lost her phone. (Ans. at par. 14; Tr. 21). Respondent also stated Baker’s petition was complete and she was “very pleased with it.”

(Jt. Stip. at par. 9). Respondent had done some relevant work, but had not drafted a petition. (Tr. 21-24; Adm. Ex. 2 at 4-6). 

The November 3, 2017 text message was Respondent’s last communication to Baker. (Tr. 24-25). Between November 4 and November 10, 2017, Baker sent Respondent multiple text messages asking about the status of his case. Respondent did not reply to any of those messages. Respondent also did not reply to a letter Baker sent her on December 11, 2017, asking that Respondent notify him if she would continue as his attorney and asking for a refund if she would not continue to represent him. (Jt. Stip. at pars. 10, 11, 12, 13; Adm. Ex. 1 at 5). 

C. Analysis and Conclusions

A lawyer shall keep a client reasonably informed about the status of the matter and promptly comply with reasonable requests for information. Ill. Rs. Prof’l Conduct Rs. 1.4(a)(3), 1.4(a)(4). Rule 1.4(a) imposes a duty on attorneys to take the necessary steps to keep clients informed about their cases, as well as a duty to promptly respond to client questions and requests for information. In re Harris, 2013PR00114, M.R. 27935 (May 18, 2016). A violation of Rules 1.4(a)(3) and 1.4(a)(4) can be found where an attorney has failed to respond to multiple requests from a client about the status of the client’s matter. See Harris, 2013PR00114 (Hearing Bd. at 8-9). Here, as per the parties’ stipulation, Respondent did not respond to multiple inquiries from Baker about the status of his case and thereby violated Rules 1.4(a)(3) and 1.4(a). 

It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Ill. Rs. Prof’l Conduct R. 8.4(c). Clearly, a violation of Rule 8.4(c) can be found where an attorney intentionally misrepresents facts to a client. In re Hyman, 2013PR00110, M.R. 27380 (Sept. 21, 2015). Respondent made false statements to Baker about the reasons for rescheduling their conference, her delay in responding to him and having prepared a petition. As per the parties’ stipulation, Respondent thereby violated Rule 8.4(c).

The ARDC Hearing Panel rejected the Administrator’s claim that the lawyer had violated Rule 1.4(a)(2) – failure to reasonably consult with a client.

The ARDC Hearing Panel appears to have recommended the 30-day suspension because it was convinced that the lawyer had lied to her client.

Source – In re Chandra Lin Justice 2018 PR 00078

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