Discipline of public sector attorneys: Some recent dispositions of interest from Illinois and other states

In re Nelson, Ill. Sup. Ct. No. M.R. 19657 (November 17, 2004). The Illinois Supreme Court ordered a 90-day suspension of Ms. Nelson’s license to practice on the basis of her breach of fiduciary duty to her client and her use of client confidences without the client’s consent, in violation of Rule 1.6(a) of the Rules of Professional Conduct. While employed as a senior attorney in the legal department of the Chicago Transit Authority (CTA), Ms.

Nelson reviewed other employees’ personnel files, which she found while in the CTA offices on two Saturdays. She attempted to use the information from those files in support of a lawsuit that she brought against the CTA alleging violations of the Equal Pay Act. During the course of the litigation, she was terminated from her employment, and a federal magistrate judge ordered her to return the documents to the CTA, finding that the documents were confidential and that Ms. Nelson had acted inappropriately and without the knowledge or consent of the CTA in obtaining them. Her lawsuit was eventually dismissed for want of prosecution.

In re Cosgrove, Ill. Sup. Ct. No. M.R. 19629 (September 27, 2004). The Illinois Supreme Court censured this attorney for conduct that occurred while he was an Assistant State’s Attorney. Before the afternoon call began in the courtroom to which he was assigned, the presiding judge asked Mr. Cosgrove to review a particular case, which involved an overweight truck citation, and to see what he could do to “SOL it or whatever”; the judge explained that a friend of his had telephoned him about the case. When the case was called in court, Mr. Cosgrove stated for the record that he did not believe he would be able to meet his burden of proof, and he asked the judge to strike the matter. At the time, the police officer who had issued the citation in question was present in the courtroom, and his complaints about this conduct reached the State’s Attorney’s office, which suspended Mr. Cosgrove and eventually terminated his employment. In the disciplinary proceeding, it was found that Mr. Cosgrove had violated Rule 3.3(a)(1) of the Rules of Professional Conduct, by making a statement of material fact or law to a tribunal that he knew or reasonably should have known was false, and that he had engaged in a ex parte communication with a judge, in violation of Rule 3.5(j).

Iowa Supreme Court Board of Professional Ethics & Conduct v. Tofflemire, 689 N.W.2d 83 (Iowa 2004). Ms. Tofflemire was suspended indefinitely, with no possibility of reinstatement for two years. She was a full-time employee of the Labor Division of Iowa Workforce Development (IWD), a government agency and, with permission, also did contract work for the State Public Defender (SPD). A routine cross-match of her earnings was performed by the state Department of Revenue, because of her income from more than one state agency, and an investigation was initiated by the Labor Commissioner based on the revenue department’s findings regarding the amount of her income. It was discovered that, on some days, records showed that Ms. Tofflemire had claimed to work for the two agencies for more than 24 hours. Her timekeeping practices were found to constitute conduct prejudicial to the administration of justice; the Iowa Supreme Court also described her actions as “egregious enough to constitute illegal conduct involving moral turpitude.” It was also concluded that she had repeatedly over-billed the SPD and had collected an excessive fee. During a nine-month period, she took sick leave from IWD on 26 occasions, but records showed that she had been doing work for the SPD while on sick leave from the IWD. The court rejected her contention that the investigation had disclosed nothing more than “honest mistakes.”

In the Matter of Peasley, 208 Ariz. 27, 90 P.3d 764 (2004). Mr. Peasley was a prosecutor in the Pima County Attorney’s Office. In an attempt to bolster the credibility of a government informant, who was a key witness in a capital murder prosecution of two defendants, Mr. Peasley knowingly introduced false testimony from the lead detective in the case. The Arizona Supreme Court found that he had violated his duty as a prosecutor to seek justice, that he did so intentionally, and that his conduct caused actual or potential harm. His substantial experience as a prosecutor was found to be a relevant aggravating factor, as was his dishonest motive. The court ordered his disbarment.