Attorney Registration and Disciplinary Commission administrator Mary Robinson wants the Illinois Supreme Court to suspend attorney Thomas Hildebrand from the practice of law indefinitely.
Robinson and her commissioners disagree with their own review board, which recommended in December that the Court suspend Hildebrand for a year.
"Disciplinary cases in Illinois clearly hold that when a respondent is unable or unwilling to reform his behavior, a suspension until further order is appropriate to protect the public," senior commission counsel Steven Splitt wrote in a Feb. 3 petition to the Court.
Splitt wrote that Hildebrand engaged in an obvious conflict of interest and deceptive actions while on probation for similar misconduct.
He wrote that, "…his posture before the Hearing and Review Boards – that no conflict of interest existed – revealed that he still does not recognize the nature of his actions."
The commission last year charged Hildebrand with conflicts of interest, dishonesty and unauthorized contact with another attorney's client.
The commission's hearing board determined last April that Hildebrand had engaged in most of the misconduct that the commission alleged. The hearing board recommended suspension until further court order.
The hearing board favored indefinite suspension because the misconduct occurred while Hildebrand was on probation from an earlier suspension.
The review board affirmed the hearing board's findings of misconduct but reduced the recommended penalty to a year.
"The Review Board had no viable basis for concluding that Respondent would suddenly change his outlook after a straight suspension," Splitt wrote.
"There is no reason to assume that a straight suspension would impress upon him the nature of his misconduct or the care he needs to exhibit in protecting future clients from harm," he wrote.
According to the commission, Hildebrand told Anne McFarlane on Easter Sunday of 2004 that for $1,000 he could get her out of Madison County jail the next day.
Police had arrested McFarlane and boyfriend Justin Counts 16 days earlier. Prosecutors had charged Counts with weapons felonies. They had charged McFarlane with aiding a fugitive and possessing a controlled substance.
Prosecutors intended to rely on McFarlane as a witness against Counts.
Counts hired Hildebrand to defend him. McFarlane talked to Hildebrand at the jail but did not hire him. She asked for a public defender.
Three days before Easter, a judge appointed attorney Rand Hale to defend McFarlane.
On Easter, Hildebrand told McFarlane he could get her out of jail the next day. She said her father told her Hale would represent her. She said she would not do anything without her father's consent.
The next day deputies took McFarlane to the courthouse. Hildebrand met her and said he had not been able to reach her father.
Hildebrand told her that Hale would be out of his office all week. If she wanted Hale to represent her, he said, she would spend another week in jail.
McFarlane pleaded guilty to felony charges and accepted two years on probation.
A month later she moved to withdraw her plea. A prosecutor agreed that if she successfully completed probation, the court would reduce the charges to misdemeanors.
McFarlane withdrew her motion.
All these events happened while Hildebrand practiced law on a probationary basis for representing parties with adverse interests in criminal cases.
The Supreme Court suspended him for ten months in September 2003, allowing him to resume practice on probation after four months. In its order the Court directed him to establish a system for avoiding conflicts of interest.
Hildebrand's failure to follow through exhausted the patience of the commission. The hearing board stated in its findings on the McFarlane case that his prior discipline was the most serious aggravating factor in its recommendation for indefinite suspension.
The hearing board found "no basis in the evidence to believe that Respondent is willing or able to comply with ethical requirements in the future."
The hearing board recommended indefinite suspension as "necessary to protect the public, the legal profession and the administration of justice."
The review board, however, decided that a year on suspension would be fair to Hildebrand.
Splitt's petition argued that, "The Review Board erred in recommending a straight one year suspension, as Respondent's recidivism and failure to reform his behavior show that he should have to petition for reinstatement before regaining the right to practice law."
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