Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Illinois disciplinary review board report and recommendation that a criminal defense lawyer receive a 6 month suspension for his misconduct in representing and defending clients in two criminal cases. The disciplinary recommendation/report is In the Matter of: G. Ronald Kesinger, No. 1452908, Commission No. 2011PR00025 (October 24, 2012). The opinion is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10624.
According to the report, in the first case, an individual named Mays was arrested in December 2008 in Champaign County, Illinois and charged with the first degree murder of his neighbor, Spinks, who was killed by a single gunshot while standing in his apartment doorway. In May 2009, the lawyer agreed to represent Mays for a set fee of $15,000.00. Mays initially told the lawyer that he was not involved in the murder and that he had returned home that night from work accompanied by two female co-workers and discovered that his apartment had been burglarized. He claimed that whoever had killed Spinks had also stolen his property and had framed him by leaving his cap and jacket at the crime scene.
On August 26, 2009, five days before trial, the Mays’ story apparently dramatically changed and, after being told the new story, the lawyer sent correspondence to the prosecutor describing the new story in detail. According to the lawyer’s correspondence, Mays and Shaw went to Spinks’ apartment and Spinks opened the door and, when Spinks saw Mays and Shaw, he tried to close the door but Mays tried to “put his arm through the door to get in” and “the door hit the gun which Shaw had in his hand and it discharged”. On August 27, 2009, the lawyer also sent letters to two witnesses, Kathleen Faber and Roger Brown, which disclosed the information Mays had told him, in an apparent effort to persuade the two witnesses to talk to him.
On August 28, 2009, the prosecutor told the lawyer in an e-mail that he was going to file additional criminal charges of home invasion and felony murder against Mays and, on August 31, 2009, the prosecutor filed a motion to add the additional charges. The lawyer objected and claimed that he was surprised by the new charges and requested a continuance of the trial. At the hearing on the motion, the prosecutor argued that the lawyer’s communication was “tantamount to a confession to a felony murder”, that the charges could not have been a surprise to the lawyer, and that the additional charges were supported. The court granted the motion to add the charges and denied the lawyer’s request for a continuance. The lawyer then attempted to withdraw on the morning of the trial, the court denied the motion, the trial was held, and Mays was convicted.
The lawyer told the Illinois review board that his communication was “an attempt to get a plea agreement” and to let the prosecutor know what testimony his client “would have to offer”. The lawyer also said that he did not understand that his communication might be viewed as an admission to the additional crimes of home invasion and/or felony murder. Astonishingly, the lawyer told the review board that he did not know the Illinois felony murder law and he also conceded that he did not have the client’s informed consent to the disclosure.
In the second case, the client, Bufford, was one the three defendants charged with possession of cocaine, each of whom the lawyer agreed to represent for a flat fee of $5,000.00. The charges against the other defendants were dismissed; however, the case against the client remained pending. At the lawyer’s request, the client assigned his bond refund to the lawyer; however, since the $10,000.00 bond was greater than the fee of $5,000.00, he asked the lawyer to provide written confirmation of the fee arrangement. The lawyer then sent a letter stating: “Please be reminded that you posted $10,000 to be released from jail. Inasmuch as my fee is only $5,000.00, I will refund to you any amounts left over after deducting the sum of $5,000.00.”
The trial was set for February 23, 2009. On February 19, 2009, the lawyer sent correspondence to the client demanding additional fees stating that he was “getting perturbed” about the number of hours he had spent on the case and about the number of hearings he had attended and further:
“I have reviewed your file in anticipation of a trial next Monday. I find that it has been necessary to appear in Court thus far fifteen times since I first appeared on March 11, 2008. I anticipate I will have to appear on Monday, Tuesday and Wednesday for another twenty-five hours. Since I must expend five hours each time I must appear in Court, fifteen different appearances means seventy-five hours of time. Therefore, I will have expended over one-hundred [sic] hours on your case. When charging by the hour, my customary and usual fee is $250 per hour. This means the legal fee should be $25,000. I remind you that you paid me $5,000. It is necessary that you assign over the remainder of the Bail Bond in order for me to be adequately compensated for this case. Accordingly, I require that you sign the enclosed Assignment of Bond before I proceed on Monday.
The client did not receive the correspondence until after the February 23, 2009 court date. On the morning of February 23, 2009, the lawyer met with the client and discussed the amount of time he was spending on the case. He showed the client a document that he claimed showed the hours he had spent on the client’s matter and requested/demanded the remainder of the bond refund as a fee. The client refused and later testified that the lawyer then replied that the “money (was) signed over to him anyway” and that he was going to tell the judge he had a conflict of interest and ask to withdraw from the representation. The lawyer testified that he decided to file a motion to withdraw because the client insisted that certain witnesses be called, and the lawyer did not believe the witnesses would testify truthfully. He admitted that the client’s refusal to pay additional fees “played a role” although not a “primary role” in his decision to file the motion to withdraw.
The lawyer then filed a motion to withdraw stating as grounds “irreconcilable differences in strategy in that Defendant desires to proceed at trial in a manner that would cause his attorney to violate the Supreme Court Rules of Professional Conduct.” The client told the judge that he consented to the motion to withdraw and the judge granted and granted the client 21 days to hire new counsel. The client hired new counsel and the criminal case was dismissed in January 2010.
On February 2, 2010, the Clerk of the Court sent a bond refund check in the amount of $9,000.00 to the lawyer and he cashed the check and kept the entire amount. He testified that when he received the check, he believed that the client had signed the entire bond refund over to him and, when he checked his file, he saw an unsigned bond assignment and his letter of February 19, 2009, and thought he was entitled to the entire refund.
Sometime in February 2010, the lawyer sent the client correspondence stating that he had spent over 100 hours on the case, that his customary fee was $250.00 an hour, and enclosing a document that showed thirteen court appearances for five hours each, which included travel time of four hours to and from Champaign. At the disciplinary hearing, the lawyer admitted that, for the first eight appearances, he also was in court representing the co-defendants. The lawyer had charged five hours of time to draft a two page discovery motion and ten hours to draft a one page response to a motion for joinder of the cases and appear on the motion.
The lawyer testified at the board hearing that he realized that he might not have been entitled to the entire bond refund after he received notice of the disciplinary charge and after he checked with the clerk’s office and learned that the client had not signed over the remainder of his bond to him, he was “mortified”. The lawyer sent a letter to the disciplinary counsel stating that his memory was faulty and he also sent a refund check in the amount of $4,000.00 to the client with an apology in March 2011. The lawyer claimed that he had a “lot of things on my plate” and was distracted and going through a divorce in 2010 and was caring for two teenage daughters. He also said that he has trouble with his memory and did not intentionally convert the funds. The board’s report found that the lawyer engaged in overreaching the attorney-client relationship and breached his fiduciary duty in his attempts to renegotiate his fee with the client and that he had converted the funds, but that he did not act with a dishonest motive. The review board recommended a six-month suspension for the lawyer’s misconduct.
Bottom line: A criminal defense lawyer should not send letters to prosecutors with client confidential information that may amount to admissions of additional crimes “to attempt to get a plea” (especially without at least consulting with the client) and should be familiar with potential crimes with which the client may be charged (particularly before making admissions which may implicate him (or her) in those crimes), and should not take a fee (or a bond refund) that he or she has no right to take…
…be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670