Out Shopping

The Illinois Review Board recommends dismissal of dishonesty charges against  an attorney “in his 60s” with no record of prior discipline.

There were allegations against him arising from a grocery store incident and an offensive email

The following facts are based on the testimony of Phillip Munoz, a store manager of the Hy-Vee grocery store in Peru, Illinois. On August 10, 2013, Mr. Munoz was walking through the store when he noticed Respondent pushing a cart of groceries and placing groceries into plastic grocery bags. Mr. Munoz thought Respondent’s behavior seemed suspicious so he started watching him. Mr. Munoz testified that Respondent noticed that Mr. Munoz was watching him, and left the grocery cart in the back corner of the store and went to the cafe at the opposite end of the store.

Mr. Munoz, accompanied by another manager, went to the cafe and sat down at Respondent’s table, where Respondent was eating by himself. Mr. Munoz asked Respondent what was going on with the grocery cart. Mr. Munoz testified that, at first, Respondent acted dumbfounded or shocked, and then became upset and told Mr. Munoz to be sure of the accusation he was making because he would have no problem suing Mr. Munoz.

Mr. Munoz asked for a receipt for the groceries. He testified that Respondent became belligerent and said he had already purchased the groceries, and that the receipt was in the grocery cart. Mr. Munoz told Respondent he would take a look in the cart. As Mr. Munoz started to walk away from the cafe, he turned and saw Respondent walk out the front door of the store and toward a car. A cashier told Mr. Munoz that Respondent had not paid for his meal. Mr. Munoz got the license plate of the car and called police. The cost of Respondent’s meal was $5.99 plus tax. Mr. Munoz testified that he found no receipt in the grocery cart.

Respondent eventually was charged with retail theft, a misdemeanor, for allegedly taking the meal at Hy-Vee without paying for it. The prosecutor assigned to the case and Respondent negotiated a guilty plea to a lesser offense of disorderly conduct. The information charged Respondent with “knowingly creat[ing] a disturbance, while located at the Hy-Vee,” in such an unreasonable manner as to alarm and disturb Phillip Munoz, and provoke a breach of the peace.” (Adm. Ex. 1 at 2.) Respondent was sentenced to two months’ supervision and ordered to pay $300 in fines and costs and $6.44 in restitution to Hy-Vee. He eventually paid those amounts in full, although he was late in doing so.

And

Prior to her death, Respondent’s mother lived in a condominium in Chicago. The condominium development had a condominium association, of which Gerlyn Delaney was president and Alfredo Valasco was treasurer.

Over the course of a few days in January 2012, Respondent sent three e-mails to Ms. Delaney, complaining about a plumbing leak in his mother’s condo unit, which appeared to be coming from the unit above. In all three e-mails, Respondent used derogatory language about the upstairs owners and condo association board members. In the second e-mail, he threatened to sue the upstairs owners as well as the condo association, and included “The Law Offices of Daniel G. Donovan” at the bottom of the e-mail. In the third e-mail, which he sent minutes after the second one, Respondent 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.)

Ms. Delaney testified at Respondent’s hearing that she felt scared and threatened by the third e-mail, not only for herself but mainly for Mr. Valasco, whom Respondent was referring to in the e-mail.

While the hearing board had found misconduct and proposed a censure

The only misconduct that the Hearing Board found Respondent committed was dishonesty. It found that Respondent’s statement to Mr. Munoz that he had paid for the groceries in his shopping cart was false. That finding, in turn, was based primarily on Mr. Munoz’ testimony that there was no receipt in the cart.

Crediting Mr. Munoz’s testimony as true, we find it insufficient evidence on which to base a dishonesty finding, because it does not prove clearly and convincingly that Respondent did not pay for his groceries. It proves only that Mr. Munoz did not find a receipt in the cart, which could have been because the receipt fell out of the cart or because Respondent was mistaken about where he left it. Or it could have been because Respondent did not pay for his groceries. But the absence of the receipt, even combined with Mr. Munoz’s observation that Respondent walked out of the store, are insufficient to meet the Administrator’s burden of proof on the issue of whether or not Respondent made a false statement to Mr. Munoz.

Moreover, Respondent’s guilty plea to disorderly conduct is not enough to support a finding of dishonesty. As we noted above, there is nothing whatsoever in the criminal information against Respondent to indicate that he engaged in dishonesty. The fact that Respondent “created a disturbance” in such an unreasonable manner as to alarm and disturb Philip Munoz, and provoke a breach of the peace” does not equate to clear and convincing evidence that he made a false statement to Mr. Munoz.

Other than Respondent’s guilty plea to disorderly conduct, and Mr. Munoz’ testimony that he did not find a receipt in the cart and that Respondent left the store, only inadmissible hearsay was presented to show that Respondent had not paid for either the groceries or the meal.

We thus believe it was a leap of logic for the Hearing Board to conclude, based on the evidence in the record, that Respondent made a false statement to Mr. Munoz.

The attorney did not participate in the proceedings (Mike Frisch)