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ARDC Hearing Board Recommends Suspension For Lawyer Who Missed Appeal Deadlines

Filed October 5.

This is a disciplinary case against Herbert Arthur Bates, an attorney in Illinois.  Bates was retained by a convicted criminal to handle his appeal.  Bates was paid $10,000.  Unfortunately, he missed numerous deadlines and the appeal was dismissed.  He also failed to return the transcripts to the inmate so the inmate could do the appeal by himself.  The ARDC Hearing Board recommended a suspension of eighteen months.  Bates ultimately refunded the money he was paid to handle the appeal.

The Panel explains:

“In March 2009, Respondent agreed to represent Lance in his criminal appeal and received $10,000 in attorney’s fees. The evidence shows that initially Respondent did some work on Lance’s appeal. However, after Respondent’s first motion requesting an extension was granted, he knew he had until June 12, 2009, to file Lance’s brief. Respondent did not promptly file Lance’s brief, and therefore, disregarded the court imposed deadline. After his second motion for an extension was denied, he did not file a motion to reconsider or a motion to file the brief instanter.

Respondent’s lack of diligence continued into December 2009 as Respondent still had not filed anything on Lance’s behalf since June 10, 2009. Even after the Appellate Court dismissed Lance’s case for want of prosecution on December 9, 2009, Respondent took no action.

Respondent waited until May 2, 2011, over a year after Lance’s case had been dismissed and after Respondent had been notified of the ARDC investigation, to attempt to file an appellate brief on Lance’s behalf. After considering all the evidence presented, we find Respondent failed to act with reasonable diligence and promptness in violation of Rule 1.3 of the 1990 and 2010 Rules.

Respondent asserts that despite the denial of the second motion for an extension of time and the dismissal of Lance’s appellate case, he continued to work on two different briefs for Lance and intended to file the final brief instanter. According to Respondent, Lance initially rejected both briefs, which added to the delay. We do not credit Respondent’s testimony that he drafted a brief prior to December 2009 and reviewed it with Lance during his second visit. Not only did Lance testify that Respondent did not show him a brief during his second visit, but Respondent did not enter that brief into evidence at the hearing.

With respect to the brief received into evidence, Respondent brought this brief to Lance nearly two years after he had been hired to represent Lance, after Lance’s appellate case had been dismissed, and after Respondent learned that Patsy had complained to the ARDC. Further, he did not attempt to file this brief until May 2011.

We also find Respondent failed to notify Lance about significant adverse developments in his case. According to Lance’s testimony, which we credit, Respondent neither informed him that the second motion requesting an extension of time was denied nor that his case had been dismissed for want of prosecution.”

Comment: the failure to inform the client that the appeal had been dismissed is particularly troubling. Please note that the Hearing Board decision is not a final judgment. Rather, either party may file exceptions with the Review Board. The ultimate decision on any discipline will be made by the Illinois Supreme Court.

Edward X. Clinton, Jr.

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