Application False Statements Draw Proposed Suspension
An Illinois Hearing Board has recommended a one-year suspension based on findings that an attorney made false statements in judicial and prosecutor applications
In a two-count Complaint, the Administrator alleged that Respondent knowingly made false statements in applying for a judgeship and interviewing for a first chair felony prosecutor position. The Administrator charged Respondent with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010). In his Answer, Respondent admitted the statement in his judicial application was incorrect, neither admitted nor denied making the statements attributed to him in his interview, and denied the charges of misconduct.
Statement at issue
On December 9, 2016, Respondent signed an Application for Appointment to Office of Associate Judge for the Twenty-Second Judicial Circuit. He submitted the application and was interviewed. The application asked him to list the last two jury cases he tried to verdict within the previous five years. One of the cases Respondent listed was People v. Castillo, 10-CF-2035, in Winnebago County. Respondent certified that all of the statements he made in the application were true, complete, correct, and made in good faith. (Adm. Ex. 14).
Respondent admits he was not a trial attorney for People v. Castillo and did not answer that question correctly.
Finding
Even if we did accept as true Respondent’s testimony that he explained his role during his interview, it would not excuse making a knowing misrepresentation in the application and certifying it as true. Consequently, we find that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c).
Alleged misrepresentations in interviewing for the prosecutor job
We found attorneys Wilbrandt, Freese, Gara, Combs, and Kenneally to be credible witnesses. They had clear recollections of the interview and subsequent events. Their testimony as to Respondent’s representations about his trial experience was detailed and consistent. We find it highly improbable that all five attorneys misheard, misunderstood, or mischaracterized what Respondent said. We disagree with Respondent’s assertion that inconsistencies in their testimony call into question the reliability of their recollections. While there were slight discrepancies on inconsequential details, such as where someone sat during the interview, there were no significant inconsistencies surrounding what they heard Respondent say. We also reject Respondent’s attempt to discredit Combs’ testimony and find Combs was a credible witness.
Findings
based on the credible testimony of attorneys Kenneally, Wilbrandt, Freese, Gara, and Combs, we find the Administrator proved by clear and convincing evidence that Respondent falsely stated he tried cases while he worked for the Appellate Prosecutor and, when pressed for specifics, misrepresented that he was specially assigned to the Champaign County State’s Attorney’s office to prosecute drug cases, tried cases with attorneys Chuck Colburn and Pam Wells, and acted as trial counsel for the People v. Vasquez case.
We further find that Respondent falsely stated he tried felony cases as a first chair attorney for the Cook County State’s Attorney.
Evidence of a judge he had clerked for
Justice Hutchinson testified about two incidents when Respondent took items from her office to his home. On one occasion, when she could not locate the office postal meter, she asked Respondent about it, and he said he did not know where it was. Later that day, Respondent said he found the postal meter in his garage, and he brought it back to the office. According to Respondent, he asked Justice Hutchinson if he could take the postal meter home. She did not recall him asking but does not doubt that he did. (Tr. 401). Respondent also took a ladder from the office. Justice Hutchinson remembers him asking to borrow it, and he brought it back when she asked where it was. (Tr. 410). Justice Hutchinson further testified there have been times when Respondent did not come into the office for two or three days and did not communicate with the office because he had a migraine. (Tr. 413).
The board rejected mitigation based on Respondent’s testimony about drinking and drug use
We do not consider as mitigation Respondent’s claimed alcohol and/or prescription medication use or abuse. There is no evidence before us from a health care provider substantiating Respondent’s testimony regarding his dependence at the time of the interview or any subsequent treatment efforts. While we in no way diminish the seriousness of such issues, the evidence is insufficient for us to find that Respondent’s misconduct or memory lapses were causally connected to alcohol and prescription drug consumption.
Sanction
Based on Respondent’s pattern of fabricating his work history, some of which he repeated in his testimony here, we conclude that the recommended sanction must be sufficient to impress upon Respondent the importance of complying with ethical rules and must protect the integrity of the profession. We determine that a one-year suspension will fulfill these purposes and is within the range of sanctions imposed in comparable cases. Accordingly, we recommend that Respondent, Scott Ian Jacobson, be suspended for one year.
(Mike Frisch)