The ARDC Review Board has recommended a 60-day suspension for a lawyer who made a material misstatement in a motion to vacate a conviction. In Illinois an old conviction, even if you have led a blameless life, can lead to dire consequences because you are forever barred from holding any professional license – even one to cut hair. This harsh rule has been criticized and challenged but it has stood the test of time. Here a lawyer made a false statement in a motion to vacate a conviction and the Review Board has recommended a 60-day suspension.

In March 2017, Respondent agreed to represent Courtney Chester in an effort to have her 2001 battery conviction voided so that she could apply to nursing school. Chester was 17 when she was charged with battery, but she had turned 18 on the day before she pled guilty to the charge. Thus, she was 18 at the time of her guilty plea and conviction. Respondent knew she was 18 when she pled guilty.

“Respondent began conversations with Assistant States Attorney Joseph Lesner about Chester’s situation. Lesner told him to get a motion on file. Respondent thus prepared and filed with the court a motion to vacate Chester’s guilty plea and conviction. In the motion, Respondent stated that Chester was 17 at the time she was charged and sentenced. He further stated: “As [Chester] was only 17 at the time of the plea and conviction[,] her plea and conviction should properly be voided.” (Admin. Ex. 1 at 5.) He knew that statement was false when he filed the motion, because he knew that Chester was 18 when she entered her guilty plea and was sentenced.

Respondent also sent a cover letter to Lesner explaining the motion, in which he stated that Chester was “trying to become a nurse and to do so she needs to remove her conviction for battery in 2001. She was 17 at the time and was eligible for court supervision.” (Admin. Ex. 1 at 6.)

About a month after filing the motion, Respondent appeared in court on the motion to vacate, in front of Winnebago County Circuit Court Associate Judge Brian Shore. Judge Shore questioned him about the basis of the motion, pointing out that Chester was 18 

when she pled guilty and that the motion, on its face, was not correct. Respondent told Judge Shore that he did not look at the actual plea date and that, when he wrote the motion, he believed Chester was 17 at the time of her plea, but subsequently determined that she was over that age. The judge continued to press Respondent about the incorrect statement, and Respondent continued to assert to the judge that he did not intend to state something false. The judge dismissed the motion to vacate because of the “blatantly false allegation.” (Admin. Ex. 3 at 3-8.) At his disciplinary hearing, Respondent acknowledged that his statements to Judge Shore that he did not look at the actual plea date and that he believed when he wrote the motion that Chester was 17 when she pled guilty were false. (Report of Proceedings at 34-35.)”

If you have a legal ethics issue and would like to discuss it with us, do not hesitate to contact us. Also, please review our legal ethics webpage. https://www.clintonlaw.net/legal-ethics.html

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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Lurie v. Wolin, 2017 IL App (1st) 161571 – Ill: Appellate Court, 1st Dist., 3rd Div. 2017 – Google Scholar:

Every now and then, even I am shocked by a court decision on a legal ethics issue. Here, the Appellate Court first remanded a case to the trial court. On remand, the trial court found that the attorney for the plaintiff had forged documents to make an untimely appeal appear timely. Accordingly the appeal was dismissed.  

The court’s summary explains its affirmance of the trial court’s findings:

¶ 1 This case comes before us for a second time. In the prior appeal, we held that Derek and Steven Lurie’s complaint adequately stated a cause of action against the defendants, Philip Wolin and Wolin, Kelter & Rosen, Ltd., for legal malpractice. We reversed the dismissal of the complaint. Lurie v. Wolin, 2014 IL App (1st) 130661-U. On remand, defendants asked the circuit court to reconsider the issue of whether it lost jurisdiction over the case before it entered the order we reviewed in the prior appeal. After an evidentiary hearing, the trial court found that the Luries’ attorney filed documents with date stamps falsified to make the court believe that the attorney had filed the documents within the time permitted. The circuit court found that it had lost jurisdiction in 2011, before it filed the order we reviewed in the prior appeal, when the Luries failed to timely file a motion to reconsider the dismissal of the complaint with prejudice.¶ 2 On appeal, the Luries argue that the law of the case doctrine barred relitigation of the jurisdictional issue and that the evidence did not support the finding that the circuit court lost jurisdiction in 2011. We agree with the Luries that the circuit court’s original implicit ruling that it had jurisdiction became the law of the case. However, because the allegations supported a finding that the Luries’ attorney perpetrated a fraud on the court, we find that the law of the case doctrine does not prevent us from considering the jurisdictional issue. The circuit court’s finding of fact that the attorney falsified the documents is not contrary to the manifest weight of the evidence, and it supports the ruling that the circuit court lost jurisdiction over the case in 2011, before it entered the order we reviewed in the prior appeal. Accordingly, we affirm the circuit court’s judgment dismissing the Luries’ complaint.

Comment: the lawyer who allegedly forged documents to make it appear that the appeal was timely has been disbarred.

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This discipline matter arose out of a foreclosure case which was removed to federal court. The court ordered the attorney to draft and file an amended complaint, but the attorney missed the deadline. The case was then dismissed. The attorney then filed a Rule 60(b) motion in which he claimed that he had not received the orders of the court because they had an incorrect email address for him. Because this assertion was not accurate the district court requested further information and issued a rule to show cause. The Fifth Circuit explains:

In his Verified Response, Ramos admitted he had received the e-mail notifications for the litigation but claimed he only became aware of them after conducting further research of his e-mail account and submitting the correct e-mail address to the clerk’s office. Ramos stated he began drafting the motion for reconsideration prior to this realization, but due to an undisclosed personal difficulty, he failed to update the motion to reflect his knowledge of the e-mails. Ramos maintained his statements to the court regarding his lack of e-mail notification were not knowing or intentional misrepresentations. He also requested the Chief Judge of the Northern District of Texas convene a three-judge panel pursuant to Local Civil Rule 83.8(h)(3) to make any final determination concerning possible discipline. The district court determined Ramos’s Verified Response raised additional concerns for why disciplinary action should be considered and created a separate miscellaneous matter to address this issue.

On February 8, 2016, the district court entered an order in the separate cause setting forth its basis for concern over Ramos’s actions. The district court concluded that Ramos’s (1) failure to comply with Rule 83.13(b), even if based on his staff’s errors, demonstrated his inability to conduct litigation properly, (2) acknowledged lack of receipt of electronic notice also demonstrated his inability to conduct litigation properly, (3) failure to read court e-mails and to file a truthful motion due to distractions in his personal life is unethical conduct that is unbecoming a member of the bar, and (4) request for a three-judge panel to hear any disciplinary action against him was a further indication of Ramos’s inability to conduct litigation properly. Although the district court noted Ramos took several mitigating steps,[2] the court found them to be unpersuasive and inferred Ramos’s actions were merely used to hide his mistake from his client. Before ruling definitively on the disciplinary action, the district court deemed it appropriate to provide Ramos an additional opportunity to file a written response and to request a hearing before the court.

On February 17, 2016, Ramos filed his latest response with his and his client’s declarations attached. Ramos claimed that his errors and omissions in the underlying action were the result of inexperience and poor business practices rather than deceitful or intentional conduct. In his declaration, Ramos noted that he sought the assistance of a solo-practice management expert to review his “client intake, case correspondence, and services-planning protocols to assure errors and lack of oversight and redundancy . . . do not occur again.” Based on these factors and the fact he fully explained the matter to his client, Ramos argued he lacked “the bad faith element necessary for severe sanctions such as suspension or disbarment . . . .” He also communicated a willingness to attend any CLE or other education programs the court deemed necessary to improve his law practice. Upon review of Ramos’s response, the district court determined a further response was necessary before it could determine what disciplinary action to take. The court ordered Ramos to submit his risk-management plan and a statement from the solo-practice management expert describing the nature of his advice to Ramos no later than March 21, 2016. Both documents were filed under seal.

On March 22, 2016, the district court entered an order suspending Ramos from practicing in the Northern District of Texas for four years.

The Fifth Circuit reduced the suspension to one year, holding that a four-year suspension was too much given the relative lack of experience of the lawyer.

If you have an ethics question, do not hesitate to contact me. 312-357-1515 extension 1.

BEFORE THE HEARING BOARD:

The ARDC has filed a complaint alleging that a lawyer visited a client in the hospital and obtained her signature on a will. He then took the will back to the office and had two people affix their signatures as witnesses.

Under Illinois law, the testator and the witnesses have to be in the same room and see each other sign.

After the client died, the lawyer filed the will with the Probate Court. It was there that the fraud was discovered.

The ARDC likes these cases because they are easy to prove. I understand how a lawyer who is hurrying might make a mistake like this.

Edward X. Clinton, Jr.

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ARDC  |  Clerk’s Office, Filings and Public Hearings:

This order resolves a number of disciplinary cases.  The case of former Illinois Assistant Attorney General, Htin Myat Win was the most significant. The Illinois Supreme Court ordered as follows:

“Mr. Win, who was licensed in 2012, was suspended for one year. While serving as an Assistant Illinois Attorney General, he made a false statement to a federal judge by claiming that he had notified a witness to appear for a hearing when, in fact, he had not sent notification to the witness. He then created and back-dated a letter to support his false claim, and he repeated the false statement to his supervisor. He later filed a false affidavit repeating the claim and made false statements to the ARDC by again claiming that he had notified the witness about the hearing. The suspension is effective on October 13, 2016.”

In the case of bankruptcy lawyer Jackson Edward Donley, the court issued the following order:

“Mr. Donley, who was licensed in 1981, was suspended for one year and until further order of the Court, with the suspension stayed after three months by a two-year period of conditional probation. He filed a Chapter 7 bankruptcy petition for a client in which he falsely stated that the client was unmarried and owed mortgage payments for his residence. In fact, he knew that the client resided with a spouse who had a substantial income, and the client had no rent or mortgage obligation for their home. Mr. Donley also falsely represented in the electronic pleadings that his client had signed printed copies of the pleadings. The suspension is effective on October 13, 2016.”

The Illinois Supreme Court also disbarred Bradley Aubel:

“Mr. Aubel, who was licensed in 1997, was disbarred. He was convicted in federal court of obstruction of justice after he converted client credit cards to his own use. In addition, he was convicted of filing a false income tax return when he materially understated his law business’s gross receipts.  He was suspended on an interim basis on January 3, 2013.”

Comment: false statements to courts tend to draw harsh penalties.

Edward X. Clinton, Jr.