Hanging Out

An Illinois Hearing Board proposes a nine-month suspension of an attorney convicted of two misdemeanor offenses

Respondent was licensed to practice law in 2017. (Tr. 84.) After graduating from law school, he worked for the Lake County State’s Attorney’s Office for about two and a half years. He then went to work for a law firm in McHenry County, doing criminal defense work. In February 2020, he opened his own firm in Waukegan, where he handles family law, personal injury, criminal defense, and some business transactions. (Tr. 84-87.)

At all times alleged in the Complaint, there was in effect a criminal statute in Illinois, 235 ILCS 5/6-16(a)(iii), which made it a misdemeanor offense to purchase or otherwise obtain alcoholic liquor and sell, give, or deliver the alcoholic liquor to a person under 21 years of age. (Ans. at par. 1.)

At all times alleged in the Complaint, there was in effect a criminal statute in Illinois, 235 ILCS 5/6-16(d), which made it a misdemeanor offense to rent a hotel or motel room for the purpose of or with the knowledge that such room shall be used for the consumption of alcoholic liquor by a person under 21 years of age. (Ans. at par. 2.)

Facts according to M.W.

M.W. was born on January 1, 2002. She met Respondent at the McHenry County Courthouse in December 2019. At that time, M.W. was 17 years old. She was at the courthouse for a pending juvenile domestic violence matter involving her and her mother. As a result of that matter, she was on house arrest and had to wear an electronic monitoring device. She also was required to abstain from using drugs and alcohol. (Tr. 16-19.)

M.W. testified that she had just come out of court and was waiting in the courthouse lobby while her mother was in the restroom. She saw Respondent and they started talking. Respondent said he could help her with her case and gave her his business card. (Tr. 19-20.) M.W.’s mother, S.W., approached them toward the end of the conversation, told Respondent that M.W. was an underage girl and “kind of shoved [M.W.] away,” and said “let’s go” to M.W. (Tr. 21.)

M.W. testified that, a few weeks later, after she had turned 18, she reached out to Respondent about hanging out. She testified that she gave him her address and invited him to come hang out at her house, and that he came over and they hung out outside the house. She denied that he went inside her house and into her bedroom, and that she was drinking from a bottle of Hennessy when he was there. (Tr. 35-37, 39.) 

Shortly thereafter, M.W. reached out to Respondent about hanging out again, and they made plans to meet on January 17, 2020 at the McHenry County courthouse. Respondent paid for M.W. to take an Uber to the courthouse. M.W. testified that she did not have any alcohol at her house before she went to the courthouse, did not have access to alcohol, and did not bring alcohol to the courthouse. She waited for Respondent while he finished matters in court, and when he was done, they left the courthouse and went to a bank and then to a liquor store. Respondent went into the liquor store while M.W. waited in the car, and Respondent came out of the liquor store with a bottle of Hennessy liquor, a bottle of Coca-Cola, and condoms. They were looking for a place to hang out and decided to get a hotel room at a Best Western. It was Respondent’s idea to get a hotel room, and M.W. went along with it. (Tr. 22-26, 35-36, 40-41.)

M.W. testified that, in the hotel room, they listened to music and talked. Respondent rubbed her leg but they did nothing else physical. Both of them were drinking. (Tr. 25-27.) She testified that, while they were at the hotel room, she told Respondent that she was on home detention and had to be home by 6 p.m., and her electronic monitoring device on her ankle was noticeable. (Tr. 26-27.) She also testified that she told Respondent that one of the conditions of her house arrest was that she was not permitted to have any alcohol. (Tr. 45.)

M.W. testified that she does not remember leaving the hotel, and that the last thing she remembers is using the bathroom, taking a few more sips of alcohol, and then waking up in the hospital with a broken ankle and badly bruised arm. She has no idea what happened between passing out at the hotel and waking up in the hospital room. (Tr. 28-29.)

M.W. was released from the hospital that same night. The next morning, officers from the McHenry County Sheriff’s Office picked her up and took her to the McHenry County jail for violating the conditions of her house arrest, because she drank alcohol. She was held in custody for three days and then released. (Tr. 31-32.)

Mother’s evidence

S.W. is M.W.’s mother. S.W. came home on January 17, 2020 to find M.W. unconscious at the bottom of the stairs. M.W.’s ankle was very swollen and purple. S.W. called 911, and M.W. was transported to the hospital.

Respondent’s testimony

We note that Respondent’s testimony differed from M.W.’s as to some details, such as whether he went into her house or just met her outside her house on their first meeting; whether or not she was drinking Hennessy in her room during their first meeting; whether or not she hid a bottle of Hennessy outside the courthouse on the day of their next meeting; and whether or not she told him she was on house arrest. We need not resolve these conflicts as they do not impact our misconduct finding, which is based solely on Respondent’s conviction.

Similarly, we did not consider Respondent’s testimony that he was unaware M.W. was under 21 when providing her alcohol, as it does not affect our misconduct finding or, as discussed below, our sanction recommendation. Respondent pled guilty to providing alcohol to a person under 21 years of age. While he may present evidence about the nature of his conduct for sanction purposes, he cannot challenge or impeach the conviction or its factual basis.

Among the extensive mitigation

Following George Floyd’s murder, Respondent flew to Minneapolis and bought and cooked hot dogs and hamburgers for about 400 people who were protesting at the murder site. (Tr. 100-101.) He also volunteers with an Illinois not-for-profit called Shower Up, which provides showers, toiletries, and clothing for people in need. (Tr. 103.) Finally, when he was in law school, he bought and donated hundreds of bottles of water to victims of the Flint, Michigan water crisis.

And

Respondent testified that, following the incident that led to his criminal conviction, he spoke to law students about the incident and how it has impacted his life, so that they could learn from his mistakes. He testified that this case has shown him that “what you do in your private life will also impact your law license,” and he wanted the students to know that “every little thing that you do matters.”

Aggravation

But significantly more aggravating than the risk of harm – and bearing out the concern of the hearing panel in Terronez – is that Respondent’s actions caused actual harm to M.W. Because of Respondent’s conduct, M.W. suffered injuries, including a broken ankle, the night Respondent provided her with alcohol; she continues to have pain in her ankle from arthritis; and this incident has negatively impacted her mental health. Moreover, she spent three nights in jail because she violated the terms of her house arrest by consuming alcohol.

Under the circumstances of this matter, we find the 60-day suspension requested by Respondent to be insufficient, given the seriousness of his conduct and the harm he caused to M.W. However, we also find the disbarment requested by the Administrator to be excessive and unsupported by relevant authority. The cases cited by the Administrator involve much more egregious misconduct occurring over longer time periods and other circumstances that are not present in this matter.

Proposed sanction

After reviewing the foregoing cases and considering the relevant circumstances of this matter, particularly the actual harm Respondent’s conduct caused M.W., we find that a suspension of nine months is commensurate with Respondent’s misconduct, consistent with discipline that has been imposed for comparable misconduct, and sufficient to serve the goals of attorney discipline and deter others from committing similar misconduct.

(Mike Frisch)