Censure Proposed For False Statement To Grocery Store Manager

An Illinois Board has proposed a censure of an attorney whose only proven misconduct was a false statement to a grocery store manager

The Administrator filed a Complaint against the Respondent on December 31, 2015. An Amended Complaint was filed on May 27, 2016. Count I of the Amended Complaint alleged that Respondent committed the crime of Disorderly Conduct, which reflects adversely on his honesty, trustworthiness, or fitness as a lawyer; and engaged in dishonesty by making a false statement to a grocery store manager. Count II alleged that Respondent committed the crime of Intimidation, which reflects adversely on his honesty, trustworthiness, or fitness as a lawyer; and used means that had no purpose other than to embarrass, delay or burden a third person.

The grocery store incident did not prove a Rule 8.4(b) violation

In this matter, we find that there is clear and convincing evidence that Respondent committed the criminal offense of Disorderly Conduct. Assistant State’s Attorney Siena testified that she negotiated with Respondent in regard to a plea of guilty to the disorderly conduct as charged in a Criminal Information. (Adm. Ex. 1 at 2). She filled out a Plea of Guilty and Order on Plea of Guilty documents which she discussed with Respondent before he signed them. The Order Respondent signed states that the plea “was voluntarily arrived at” and “is supported by a factual basis.” (Adm. Ex. 2 at 1-2). The Order, which was signed by the judge also states the “defendant is found guilty.” Siena’s testimony sufficiently showed that Respondent knew the nature of the charge to which he was pleading guilty and that his plea was voluntary. Thus, we find that Respondent’s knowing and voluntary plea of guilty to disorderly conduct was an admission that he did, in fact, commit that offense, and the judge’s Order shows there was a judgment of guilty grocery store incident led to a disorderly but not theft conviction.

 The same rule was not violated in emails to his mother’s condo association

Ms. Delaney testified via telephone that she is 59 years of age and is a Senior Secretary at Presence Resurrection Medical Center, where she has been employed for 20 years. She has resided at Birch Tree Manor #6, a condominium in Chicago, since it was built about 37 years ago and has been the president of the condominium association board since about 1990. The treasurer of the association is Alfredo Velasco. In her position as president, Delaney, has contacted people about problems or issues to be addressed, receives complaints from tenants, and receives information about property damage and maintenance matters. (Tr. 104-109).

In January 2012, Delaney exchanged e-mails with the Respondent in regard to a leak in the condominium of Respondent’s deceased mother. Delany has never met Respondent and her only contact with him has been through the e-mails. On January 14, 2012, Delaney received an e-mail from Respondent that stated:

Alfredo advised me he contacted you about a new leak . . . Please contact these assholes upstairs and tell them if they want to avoid spending the next two years in court with me they need to do 2 things, pronto:

1)    Fix the leaks. Our insurance company is already filing suit against them, so tell them to spend some money and fix the problem-maybe this time it is their water heater-whatever.

2)    Control their kid, [he] was driving up and down the floor with his bike or whatever until I left for the airport at midnight. This is not a problem for us, but the new owner and they are going to come to blows, a prediction I guarantee. Ignorant pollacks.

(Adm. Ex. 3 at 1-2).

Delaney said that after reading the above e-mail, she sent it to the condominium association attorney, Jill Rose Quinn, and sought advice on how to proceed. (Adm. Ex. 3 at 1). After receiving advice from Ms. Quinn, Delaney sent the following e-mail to Respondent on January 17, 2012:

In answer to your email, it is not the Board’s responsibility to intervene in disputes between owners. Contact [the other owner] at the address/telephone number you were provided previously.

(Adm. Ex. 3 at 3).

Delaney sent a copy of the above e-mail to the association treasurer, and to a brother and sister of the Respondent. (Tr. 109-15).

On January 17, 2012, Respondent sent another e-mail to Delaney. This e-mail stated:

Is no problem, I will sue them and the Association and then you can see these assholes in person at the courthouse and you can tell them, look you 2 ignorant jerks, you are a pain in the Ass’n’ ass and you are costing us money. Figure it out. That’s why they have courts. Adios.

(Adm. Ex. 3 at 4).

Delaney said she was “shocked” when she read the above e-mail and she had no idea how to respond to it. She then sent the e-mail to attorney Quinn. (Adm. Ex. 3 at 4). Later on January 17, 2012, Respondent sent Delaney another e-mail, in which he stated:

Further, if you really want me to solve this on my own, your asshole co-board member who you are protecting is going to get a crowbar over his head. Maybe in the legs because his head is too hard, he won’t get the point.

(Adm. Ex. 3 at 5).

Delaney sent the e-mail to attorney Quinn. Delaney explained that the e-mail “scared” her and she “felt threatened for herself and for Alfredo.” She added: “I realized that his law offices were right down the street from us, near his mother’s condo [and] I was afraid that he would come down and carry out what he had said.” Delaney called Alfredo and told him what occurred. She added that she “wanted to pick up the phone and call the police.” (Tr. 115-22).

No violation

There is no allegation in the Amended Complaint that the Respondent was representing a client when any of his conduct alleged in Count II occurred. Respondent was clearly attempting to have a leak in the condominium unit of his deceased mother repaired. The specific charge, set out above, does not refer to Respondent representing a client.

Additionally, we believe that Respondent had a valid basis for sending the e-mails to Ms. Delaney. That is, he wanted the condominium association to assist him in getting the owner of the unit from which the water was leaking to stop the leak. While we do not approve of some of the language he used in the e-mails, he was addressing an issue to the president of the association. Ms. Delaney testified that, in her position as president of the association, she receives complaints about property damage and other problems and issues that tenants want to be addressed…

Clearly the charge of intimidation against Respondent did not involve fraud, dishonesty, moral turpitude, personal morality, breach of trust, serious interference with the administration of justice, or a pattern of minor offenses. Although, intimidation may be considered a “crime of violence” the fact remains that there is no charge or evidence that Respondent engaged in, or took any steps to commit, any act of physical violence against anyone. See U.S. v. Unthank, 109 F.3d 1205, 1209-10 (1997).

Based upon the above, we find that the Administrator did not prove by clear and convincing evidence that the Respondent committed a criminal act, intimidation (720 ILCS 5/12-6(a)(1)) that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects.

Result

In this case, the Administrator requested the sanction of suspension for six months and until further order of the Court. (Tr. 138). We note that the Administrator’s recommendation was based upon all of the charges of misconduct, and we have found that only one of the charges was proved.

We find this case to be highly unusual in that the aggravation is more egregious than the misconduct. The only misconduct charged and proved was that Respondent engaged in dishonesty by knowingly making the false statement to Phillip Munoz, a grocery store manager, that Respondent “had paid for the groceries in his cart.” The false statement did not enable Respondent to remove the items from the store. Also, the misconduct did not occur while Respondent was representing a client, and did not involve any false statement to a client, court, or other attorney.

In aggravation, the Respondent failed to fully cooperate in his disciplinary proceedings. By failing to fully cooperate, Respondent caused the Administrator to file motions that otherwise would have been unnecessary. The Respondent’s failure to return and participate in the hearing following a short recess demonstrated a lack of respect for the disciplinary process of the Supreme Court. Also in aggravation, the Respondent engaged in dishonesty by leaving the Hy-Vee without paying the $6.44 he owed for a meal he ate.

There is also mitigation in this case. The Amended Complaint shows that Respondent was licensed to practice law in 1980, and it was stipulated that he has not been previously disciplined. Thus, Respondent has had a lengthy legal career of more than 35 years without having been previously disciplined. Also, Respondent did not engage in a pattern of misconduct, but rather his misconduct involved a single statement during a single incident. Additionally, the false statement Respondent made to the grocery store manager was not planned in advance, but was a spur of the moment statement made without any significant time for reflection. Thus, it was a “single, quick, and unreasoned failure of judgment.” In re Thebeau, 111 Ill. 2d 251, 256, 489 N.E.2d 877 (1986).

(Mike Frisch)