 |
Home | Search | Browse | About IPO |
Staff |
Links |
Judicial Rulings
Expanding conditions when
attorney put on probation
instead of suspension
The Illinois Supreme Court has stayed a three-year suspension and instead imposed three-year probation on an attorney who forged a signature on a legal document and then lied about it in a sworn statement during the disciplinary process. By its decision, the court extended conditions that allow probation instead of suspension.
Under the Rules of Professional Conduct probation may be imposed when the attorney's acts do not warrant disbarment and the attorney has a temporary disability that permits continued performance of legal services without public harm or disrepute to the courts or legal profession (134 111. 2d R. 772(a)). The court has historically considered alcoholism or mental illness to constitute the required disability. In this case both the Hearing Board and the Review Board of the Attorney Registration and Disciplinary Commission (ARDC) recommended that the use of probation be expanded. This change was also urged in the Illinois State Bar Association's amicus brief.
The attorney involved, practicing in a poor community and frequently unpaid, averages 25 hours of pro bono work per month for community agencies. He forged a signature to speed up payment to a bankrupt client in a settled damages suit without any hope of securing payment of his own fees.
The court said that through probation "the public benefits because it does not lose the opportunity to be served by able counsel," while "the lawyer does not forfeit all gainful employment or valuable experience in his chosen field." It noted adequate provisions to encourage a suspended attorney to behave, while "the public nature of the proceedings ... send[s] a clear message to both the respondent and the public at large that this court does not and will not tolerate or minimize attorney misconduct in this State." It said, "We are hard-pressed to discern why these benefits should be limited to ... mental illness or substance addiction." The court will further study the rules on the use of probation.
Justice Mary Ann McMorrow wrote for the majority in In re Jordan (Docket No. 74929) filed November 18.
Rule on expert witness,
complex hospital bill
Board certification affects the weight to be assigned to a physician's expert testimony, not to its admissibility, according to the Illinois Supreme Court. This was the one matter of interpretation of law in a complex malpractice opinion filed November 18.
Another element may interest those who have been nonplussed by complex hospital bills. A detailed bill was excluded as evidence since it did not show which charges were attributable to the alleged malpractice and which would have been incurred for simpler treatment if there had been earlier, correct diagnosis. The court said, "Such an impressive bill could have confused or misled the jury." It also pointed out that a hospital administrator, willing to testify to the average costs of the simpler treatment, "was incapable of determining what charge was for what service."
Justice James D. Heiple wrote the majority opinion in Gill v Foster (Docket No. 74350). Justice Moses W. Harrison II, joined by Justice Mary Ann McMorrow, dissented about the other findings.
Home invasion: Explaining
fine points to jury
The Illinois Supreme Court said that the Illinois Pattern Instructions (Criminal) for juries on home invasion needs an item on limited unauthorized entry.
The case concerned 2 a.m. violence when five men sought to recover from a resident of the home in question money given to him for undelivered drugs. There was some evidence that they were invited to enter the home, and the defendant said that his initial purpose was recovery of the money.
The trial judge supplemented the pattern instruction on home invasion with the definition: "An entry into the dwelling in question is unauthorized even when initially invited when the defendant or one for whose conduct he is legally responsible commits illegal acts within the dwelling." The court said that precedent decisions made criminal intent essential and said that, pending addition of a new instruction, "an entry into a dwelling be defined as unauthorized, even when initially invited, when the defendant or one of those for whose conduct he is legally responsible has, at the time of entry, an intent to commit criminal acts within the dwelling."
Justice Moses W. Harrison II wrote the opinion in People v Bush (Docket No. 73681).
Resentencing three-time losers
Two Illinois statutes provide enhanced punishment for recidivists. If appellate courts remand because the requirements for enhanced sentence have not been met, the state can renew sentencing hearings without placing defendants in double jeopardy. The Illinois Supreme Court ruled October 21 on five consolidated cases in which there had been disagreement at the appellate level.
The Habitual Criminal Act provides a sentence of natural life for those guilty of three Class X offenses within 20 years (see Ill. Rev, Stat. 1987, ch. 38, par. 33b-l). Under the Unified Code of Corrections those convicted of a
Month 1994/lllinois lssues/27
Class 1 or Class 2 felony with two prior convictions at Class 2 or higher are to be sentenced as Class X offenders (see Ill. Rev. Stat. 1987, ch. 38, par 1005-5-3(c)(8)). Both acts spell out procedures for sentencing hearings separate from the trial, and both were questioned in these cases.
The ground for these appeals was the U.S. Supreme Court decision in Bullington v Missouri (451 U.S. 430, 438 (1981)), which made an exception to the principal that double jeopardy considerations do not apply to sentencing hearings. Bullington involved the death penalty, and since Illinois' law is similar to Missouri's, the attempt was made to extend the exception here. The U.S. opinion held that Missouri's sentencing hearing in capital cases has three due process protections that make it resemble a second trial. Neither the U.S. Supreme Court nor the Illinois Supreme Court had considered whether the Bullington exception applies in noncapital sentencing.
Justice Charles E. Freeman wrote the opinion in People v Levin, Tyson, Knoop, Johns and Carter (Docket Nos. 71542, 71820, 72736, 72929 73108 cons.); Justice John L. Nickels did not participate. F. Mark Siebert
28/January 1994/Illinois Issues
|
|