“I’ll Stay For Sentencing”
The Illinois Administrator has charged an attorney with practicing while on a six-month disciplinary suspension.
The complaint alleges
Beginning on June 6, 2014, and continuing through December 6, 2014, Respondent was not authorized to practice law, or to hold himself out as being authorized to practice law, in the state of Illinois.
On June 4, 2014, prior to the effective date of Respondent’s suspension, Respondent represented Geraldine Hudson (“Hudson”) in the trial of a criminal matter docketed as People v. Geraldine Hudson, case number 13 MC 1190555, in the Circuit Court of Cook County. A jury found Hudson guilty of criminal trespass to property, and Hudson’s sentencing hearing was set for June 25, 2014.
When June 25 arrived
…Respondent appeared with Hudson before Judge Clarence Burch at the sentencing hearing…The Assistant State’s Attorney was Joel Bruckman. At that time, Respondent identified himself for the record as, “Marlin Kirby, on behalf of the defendant” and presented a motion to withdraw as counsel of record because he does not handle appeals. The following exchange then took place between Respondent, Judge Burch, and Mr. Bruckman:
Mr. Bruckman: Judge, this motion indicates that counsel is withdrawing for purposes of handling the appeal. But what about for sentencing and post-trial motions? We’re not there yet.
Judge Burch: We’re not at the appeal process yet.
Mr. Kirby: I was looking forward, but I’d like to withdraw now, if that’s okay.
Mr. Bruckman: Judge, I’d have an objection to that being that I believe the defendant is entitled to representation for purposes of sentencing. Since we have the 30 days that post-trial motions need to be – –
Judge Burch: You have a right to withdraw at any point. I just don’t want to leave your client unprotected.
Mr. Kirby: Sure. I understand that.
Judge Burch: If you have mutually agreed to terminate services – –
Mr. Kirby: Well, I can participate in the sentencing, but I don’t want to go further after that, if that’ll help. Will that be okay?
Judge Burch: It’s up to your client.
Ms. Hudson: It’s up to the attorney.
Mr. Bruckman: I also just want to make sure that the defendant is admonished and knows what’s going on here with the 30 days. If he withdraws today, I don’t want this to come back with ineffective assistance because she doesn’t know what’s going on.
Judge Burch: I understand what you’re saying, and I’m kind of concerned with that, too. We had a jury trial and today was set for sentencing. But I don’t want to force you to stay on the case if you want to withdraw. So as your counsel says, it’s between the two of you. What do you want to do?
Mr. Kirby: I’ll stay for sentencing, and then after that – –
Respondent proceeded to represent Hudson in the sentencing hearing, which included an examination of Hudson and argument on her behalf.
At no time did Respondent inform the court or opposing counsel that he was currently suspended and unauthorized to practice law.
Respondent’s representation to the court that he was authorized to represent Hudson and his failure to advise the court that he was suspended from the practice of law were dishonest, and Respondent’s representation of Hudson while suspended from the practice of law constituted a fraud on the court.
(Mike Frisch)