Competence Issues Draw Proposed Suspension

The Illinois Review Board has recommended a four month suspension for misconduct in two criminal defense matters

Respondent and Carroll (collectively “Respondents”) represented two defendants, Tomas Hernandez (“Hernandez”), and John Castellanos (“Castellanos”), in separate criminal cases. Although Respondent and Carroll both engaged in the charged misconduct, the Hearing Board carefully considered Respondent’s own actions, as do we.

The Hearing Board found that Respondent failed to provide competent counsel to Hernandez by failing to file and litigate a motion to suppress an inculpatory statement that Hernandez made to the police while he was in custody, before he was given his Miranda warnings, as required by Miranda v. Arizona, 384 U.S.436 (1966). (Hearing Bd. Report at 12-14.)

The Hearing Board also found that Respondent provided incompetent counsel to  Castellanos in connection with his post-conviction proceedings by filing a totally inadequate appellate brief, and failing to attempt to amend the brief or supplement the record, and failing to file a reply brief. (Hearing Bd. Report at 23-25.)

Additionally, the Hearing Board found that the attorney’s fees that Respondent charged and collected from Hernandez ($4,500) and Castellanos ($11,250) were unreasonable, in that Respondent was not entitled to collect any fees in light of her incompetent representation. (Hearing Bd. Report at 15-16, 26.) On appeal, Respondent does not dispute those findings of misconduct.

Respondent appealed here, seeking either a censure or a stayed suspension with probation.

Prior discipline

In May 2018, Respondent was censured in a prior disciplinary case for failing to provide competent representation to a client in a real estate matter, and charging that client an unreasonable fee. See In re Gonzalez, 2015PR00133 (Hearing Bd., July 10, 2017), recommending censure, (Review Bd., Feb. 23, 2018), petition for leave to file exceptions allowed, M.R. 29325 (May 24, 2018). In that case, Respondent was hired to transfer an interest in a land trust, which she failed to do. Respondent drafted and recorded a bill of sale to make the transfer. The bill of sale, however, was legally ineffective and did not transfer the interest because the property was held in a land trust, and only the trustee could transfer the property. Respondent charged her client $4,000, even though Respondent failed to transfer the interest in the property. Respondent was censured; she was also ordered to pay $4,000 of restitution to her client to repay the attorney’s fee she received, and she was ordered to complete the ARDC’s Professionalism Seminar.

Sanction

we agree with the Hearing Board’s recommendation, and we recommend that Respondent be suspended for four months, and until she pays restitution of $4,500 to Hernandez and $11,250 to Castellanos. In particular, we conclude that a four-month suspension, with restitution, is needed to deter Respondent and convince her of the seriousness of her misconduct; and to help preserve public confidence in the legal profession.