Not Cacciatore

An attorney’s false statements concerning his client’s age merits a 60-day suspension according to this recommendation  of the Illinois Review Board

Respondent was admitted to practice in Illinois in 1994. He practices in the areas of civil rights, criminal defense, and business litigation. He has no prior discipline.

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.)

As to sanction

Respondent…urges us to follow In re Cacciatore, 94 CH 793, petition to impose discipline on consent allowed, M.R. 10776 (Mar. 27, 1995), and recommend that he be censured or, at most, suspended for no more than 30 days. We decline to do so because we find Cacciatore distinguishable from this matter.

In Cacciatore, the respondent agreed to, and the Court allowed, a censure where the respondent misled the court during a hearing by providing false information in response to an allegation that he violated discovery. The petition distinguished the respondent’s misconduct from other matters involving misrepresentations to tribunals, in that there was no evidence that the respondent’s misrepresentations “were part of a premeditated plan to deceive,” and that the respondent did not “attempt to create or present false evidence.” Rather, when confronted in court with allegations of discovery violations, he engaged in “a dishonest attempt to minimize the seriousness of his violation of discovery rules.” Id. at ? 28.

Thus, Cacciatore’s misrepresentation was a spur-of-the-moment lapse during the course of a hearing. Respondent, in contrast, engaged in a premeditated and deliberate attempt to deceive the assistant state’s attorney and the court by making false statements in the motion to vacate and the cover letter to Lesner. Then, rather than admitting what he had done when the court confronted him about the false statement in the motion to vacate, Respondent instead tried to convince the court that he had been mistaken about his client’s age. Because Respondent’s misconduct is not comparable to that in Cacciatore, a similar sanction is not warranted here.

Respondent also contends that a suspension of 60 days would be devastating to a small one-person practice. That may be true, but the effect that the suspension could have on Respondent’s practice does not justify rejecting the Hearing Board’s recommendation. As the Court has noted, that a suspension may disrupt and burden an attorney’s life is part and parcel of disciplinary sanctions. See In re Nesselson, 35 Ill. 2d 454, 461 (1966) (“As to [respondent’s] claim that his professional life will be virtually destroyed and that he and his family have already been humiliated by the mere pendency of these proceedings, these circumstances are present in almost every disciplinary proceeding”).

Accordingly, taking into account the nature of Respondent’s misconduct as well as the aggravation and mitigation in this matter, we recommend that Respondent be suspended for 60 days. We believe that this sanction is commensurate with Respondent’s misconduct, consistent with discipline that has been imposed for comparable misconduct, and necessary to serve the goals of attorney discipline and deter others from committing similar misconduct.

(Mike Frisch)