People v. Abdul-Mutakabbir
Annotate this Case
FIFTH DIVISION
FILED: 3/06/98
No. 1-97-0268
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. )
)
LATIF ABDUL-MUTAKABBIR, ) HONORABLE
) JAMES B. LINN,
Defendant-Appellant. ) JUDGE PRESIDING.
PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
The defendant, Latif Abdul-Mutakabbir, was convicted of eight
counts of false personation of a judicial official in violation of
section 32-5 of the Criminal Code of 1961 (Code) (720 ILCS 5/32-5
(West 1996)). The defendant appeals the conviction contending that
he was denied a fair trial when the court refused to instruct the
jury as to the mental state necessary for a violation of section
32-5 of the Code. For the reasons which follow, we affirm in part,
reverse in part, vacate the defendant's sentence, and remand the
cause to the circuit court for further proceedings consistent with
this opinion.
On November 11, 1993, the Illinois Supreme Court entered an
order suspending the defendant from the practice of law for a
period of three years. The mandate on the order issued on November
22, 1993, and a notice of the court's order and mandate was sent to
the defendant on the same day. On December 14, 1993, the defendant
filed a pro-se pleading with the clerk of the supreme court which
was entitled "Petition For Rehearing Or To Stay Mandate On
Certiorari To The United States Supreme Court" (hereinafter the
"petition"). On that same day, the clerk of the supreme court sent
a letter to the defendant informing him that his petition would be
treated by the supreme court as a motion to reconsider and to
recall its mandate. On January 11, 1994, the supreme court entered
an order denying the defendant's motion, and the clerk of the
supreme court sent a notice of the court's order to the defendant
and the Attorney Registration and Disciplinary Commission (ARDC).
On January 28, 1994, Jonathan Siner, an attorney employed by
the ARDC, sent a letter to the defendant stating that the ARDC had
been informed that, although the defendant was suspended from the
practice of law on November 22, 1993, he was still holding himself
out as an attorney. The letter stated that as of January 26, 1994,
the defendant was still listed as an attorney on the directory in
the lobby of his office building and a recorded message on the
defendant's business phone identified him as an attorney. Siner's
letter reminded the defendant of his duties as a disciplined
attorney under Supreme Court Rule 764 (134 Ill. 2d R. 764), and
requested that the defendant inform the ARDC in writing within 14
days as to the steps he had taken to comply.
The defendant forwarded a letter written on his law office
stationary to Siner on February 14, 1994. The entire text of the
defendant's letter states:
"In response to your letter of January 28, 1994, I direct
your attention to Illinois Supreme Court Rules 367 and
368.
Should you require additional information, please
let me know."
Sarie Weissman Montgomery, also an attorney employed by the
ARDC, wrote a letter to the defendant on January 11, 1995.
Montgomery's letter referenced the defendant's suspension and the
fact that his motion to reconsider had been denied, and requested
that he comply with the affidavit requirements of Supreme Court
Rule 764(g) (134 Ill. 2d R. 764(g)). Montgomery sent the letter to
the defendant via certified mail and received a return receipt
signed by the defendant.
Ellyn Rosen, another attorney employed by the ARDC, commenced
an investigation of the defendant after the ARDC received a
communication from a judge in the fall of 1994 indicating that the
defendant was practicing law. On April 24, 1996, Rosen acted as
the complainant in the eight count misdemeanor complaint charging
the defendant with violations of section 32-5 of the Code which
gave rise to this action (hereinafter the "complaint"). The
complaint alleged that on eight specified occasions from January 7,
1994, through April 19, 1996, the defendant "falsely represented
himself to be an attorney authorized to practice law." Prior to
trial, the State moved for and was granted leave to amend each of
the eight counts to allege that the defendant "knowingly and
falsely represented himself to be an attorney authorized to
practice law." (Emphasis added.) The amendment was made without
objection from the defendant, and neither the State's right to
amend nor the adequacy of the complaint as amended is an issue on
appeal.
Upon the trial of the cause, the defendant stipulated that he
represented himself to be an attorney authorized to practice law on
the eight occasions alleged in the complaint. His defense centered
around his belief that Supreme Court Rule 368 (134 Ill. 2d R. 368)
applied to orders entered by the supreme court in disciplinary
matters and, as a consequence, the filing of his petition acted to
stay the order of suspension and the mandate issued thereon. The
defendant also testified that since the supreme court ruled on his
petition as a motion to reconsider its order of November 11, 1993,
and not on his request for rehearing, the stay provided for in Rule
368(a) is still in effect. The defendant admitted that he received
the notices of the order of suspension and mandate sent by the
clerk of the supreme court on November 22, 1993, the notice of the
supreme court's denial of his motion to reconsider and to recall
its mandate sent by the clerk of the supreme court on January 11,
1994, Siner's letter on January 28, 1994, and Montgomery's letter
of January 11, 1995.
During the jury instruction conference, defense counsel
requested that the word "knowledge" be inserted into the in-
structions for false personation of a judicial official. The State
argued that the offense is an absolute liability offense and does
not require a mental state. The trial judge agreed with the State
and instructed the jury that to sustain the charge the State must
prove beyond a reasonable doubt that "the defendant falsely
represented himself to be an attorney authorized to practice law."
The jury found the defendant guilty of all eight counts as
charged. Subsequently, the trial court denied the defendant's
motion for a new trial and sentenced the defendant to two years'
probation, 60 days' incarceration, and 30 days of community
service. The defendant now appeals, contending that the trial
court erred when it refused to instruct the jury that knowledge was
an element of the offense of false personation of a judicial
official.
The first step in our analysis requires us to determine what,
if any, mental state is necessary for a violation of section 32-5
of the Code.
Section 32-5 provides in pertinent part that "[a] person who
falsely represents himself to be an attorney authorized to practice
law *** commits a Class B misdemeanor." 720 ILCS 5/32-5 (West
1996). Although the statute does not contain express language
describing a mental state as an element of the offense, it is not,
as the State contends, an absolute liability offense.
Section 4-9 of the Code which governs absolute liability
offenses provides that "[a] person may be guilty of an offense
without having, as to each element thereof, one of the mental
states described in Sections 4-4 through 4-7 if the offense is a
misdemeanor which is not punishable by incarceration or by a fine
exceeding $500, or the statute defining the offense clearly
indicates a legislative purpose to impose absolute liability for
the conduct described." (Emphasis added.) 720 ILCS 5/4-9 (West
1996). Although a violation of section 32-5 is a misdemeanor, it
carries a potential penalty of up to six months' incarceration.
730 ILCS 5/5-8-3(a)(2) (West 1996). Further, there is nothing in
the language of section 32-5 which clearly indicates a legislative
purpose to impose absolute liability. See People v. Anderson, 148 Ill. 2d 15, 23-24, 591 N.E.2d 461 (1992); People v. Cully, 286 Ill.
App. 3d 155, 675 N.E.2d 1017 (1997).
Given our conclusion that section 32-5 is not an absolute
liability offense, we must next determine which mental state
applies to "each element described by the statute defining the
offense." 720 ILCS 5/4-3(a) (West 1996). When, as in this case,
a statute neither prescribes a particular mental state nor creates
an absolute liability offense, then the mental state applicable to
each element is either intent, knowledge, or recklessness. People
v. Gean, 143 Ill. 2d 281, 288, 573 N.E.2d 818 (1991); see also 720
ILCS 5/4-3(b), 4-4, 4-5, 4-6 (West 1996).
The defendant argues, and we agree, that knowledge is the
appropriate mental state applicable to the falsity element of the
offense set forth in section 32-5 of the Code. To state that a
person commits an offense by falsely representing a fact to be true
without requiring that the person know of the falsity of the
representation is the equivalent of absolute liability. Conse-
quently, we hold that in order to convict an individual of an
offense under section 32-5 of the Code for falsely representing
himself to be an attorney authorized to practice law, the State is
required to prove beyond a reasonable doubt that such a person knew
that his representation was false when made.
The fact that a mental state is implied in an offense does not
necessarily require, however, that a court instruct the jury as to
the requisite mental state. When a mental state implied in an
offense by reason of section 4-3 of the Code necessarily
accompanies the acts prohibited by the statute creating the
offense, the court is not required to instruct the jury as to the
mental state. People v. Burton, 201 Ill. App. 3d 116, 558 N.E.2d 1369 (1990). However, "some mental states involved in offenses,
although not specifically mentioned in the statute defining the
offense, may be implied in the offense and be specific enough to
require instruction to the jury." Burton, 201 Ill. App. 3d at 122.
We believe that the mental state of knowledge implied with respect
to the falsity element of an offense under section 32-5 of the Code
is specific enough to require an instruction. In cases where a
person is charged with falsely representing himself to be an
attorney authorized to practice law, there will rarely be a
question as to whether the representation was false, but there may
well be a question as to whether the person knew that the
representation was false, especially in the case of a recently
suspended attorney. Accordingly, the trial court erred in refusing
the defendant's request that the word "knowledge" be inserted into
the instruction setting forth the elements of the offense charged
in this case. See Cully, 286 Ill. App. 3d at 166.
The fact that we have determined that an instructional error
occurred in this case does not end our analysis. "Even though
error may have been committed in giving or refusing instructions it
will not always justify reversal when the evidence of the
defendant's guilt is so clear and convincing that the jury could
not reasonably have found him not guilty." People v. Ward, 32 Ill. 2d 253, 256, 204 N.E.2d 741 (1965); see also People v. Jones, 81 Ill. 2d 1, 9, 405 N.E.2d 343 (1979); Cully, 286 Ill. App. 3d at
166. In this case, the State argues that any error in failing to
instruct the jury with respect to the requisite mental state was
harmless in light of the overwhelming evidence of the defendant's
guilt. We agree as to all but one of the offenses for which the
defendant was convicted.
As stated earlier, the defendant stipulated that he repre-
sented himself to be an attorney authorized to practice law on the
eight occasions alleged in the complaint. The theory of the
defense in this case was the defendant's contention that, although
he was aware that the supreme court had entered an order suspending
him from the practice of law prior to the dates upon which the
complaint alleged that he falsely represented himself to be an
attorney authorized to practice law, he believed that the filing of
his petition on December 14, 1993, acted to stay both the order of
suspension and the mandate issued thereon by reason of the
provisions of Supreme Court Rule 368. The defendant testified that
since the supreme court never ruled on his request for a rehearing,
he was of the belief that the stay on the order suspending him from
the practice of law was never lifted. Before discussing the
effects that the defendant's professed beliefs may have had on his
mental state at the time that he represented himself to be an
attorney authorized to practice law, we will briefly address the
correctness of his interpretation of Rule 368.
Article III of the Illinois Supreme Court Rules (134 Ill. 2d
R. 301, et seq.) governs appeals in civil cases. Supreme Court
Rule 368 provides that a timely filed petition for rehearing stays
a reviewing court's mandate in a civil appeal "until disposition of
the petition unless otherwise ordered by the court." 134 Ill. 2d
R. 368(a). However, an attorney disciplinary proceeding is not a
civil action; rather, it is an investigation into the conduct of an
attorney to determine whether he should be disbarred or otherwise
disciplined. In re Yablunky, 407 Ill. 111, 94 N.E.2d 841 (1950).
Consequently, Rule 368 has no application to an order entered by
the supreme court in a disciplinary proceeding.
The Illinois Supreme Court "possesses the inherent and
exclusive power to regulate the practice of law in this State and
to sanction or discipline the unprofessional conduct of attorneys
admitted to practice before it." In re Mitan, 119 Ill. 2d 229,
246, 518 N.E.2d 1000 (1987). In the exercise of that power, the
supreme court has promulgated a comprehensive scheme to regulate
attorneys and punish their misconduct. People ex rel. Brazen v.
Finley, 119 Ill. 2d 485, 494, 519 N.E.2d 898 (1988). Supreme Court
Rule 753 (134 Ill. 2d R. 753) governs attorney disciplinary
proceedings from the investigation stage through the entry of final
orders by the supreme court, and it does not provide for petitions
for rehearing after the supreme court has entered an order of
suspension or for any automatic stay of such an order once issued.
In sum, the defendant was wrong in his belief that the filing
of his petition on December 14, 1993, stayed the effect of the
order suspending him from the practice of law. Nevertheless, we
must still address the effect, if any, that the defendant's
mistaken belief had upon his mental state at the time of the
offenses alleged in the complaint.
A person's mistake as to a matter of law can form the basis of
a defense if it negates the mental state element of the offense
charged. People v. Sevilla, 132 Ill. 2d 113, 125, 547 N.E.2d 117
(1989); see also 720 ILCS 5/4-8(a) (West 1996). In this case, our
focus is on the question of whether the defendant knew that he was
not authorized to practice law at the time he made the
representations alleged in the complaint. "Knowledge generally
refers to an awareness of the existence of facts which make an
individual's conduct unlawful." Sevilla, 132 Ill. 2d at 126.
Section 4-5 of the Code which defines knowledge states, in
pertinent part, that:
"A person knows, or acts knowingly or with knowledge
of:
(a) The nature or attendant circumstances of his
conduct described by the statute defining the offense,
when he is consciously aware that his conduct is of such
nature or that such circumstances exist. Knowledge of a
material fact includes awareness of the substantial
probability that such fact exists." 720 ILCS 5/4-5(a)
(West 1996).
Had the jury been properly instructed on the mental state
necessary for the commission of an offense under section 32-5 of
the Code and accepted the defendant's testimony that he believed
that the filing of his petition on December 14, 1993, stayed the
mandate on the order suspending him from the practice of law, they
could have found that the State failed to prove that the defendant
knew that he was not authorized to practice law on January 7, 1994,
the date upon which count I of the complaint charged that he
violated the statute. However, the same reasoning is not
applicable to the offenses charged in counts II through VIII of the
complaint which allege violations of the statute on seven occasions
from February 24, 1994, through April 19, 1996.
The defendant's own admissions in this case make it blatantly
evident that, whatever mistaken belief he may have had as to the
force and effect of the order suspending him from the practice of
law by reason of the filing of his petition on December 14, 1993,
this belief was dispelled as of January 11, 1994. The defendant
admitted that he received a letter from the clerk of the supreme
court informing him that the petition which he filed on December
14, 1993, would be treated by the court as a motion to reconsider
the order suspending his right to practice law and as a motion to
recall the court's mandate. The defendant also admitted that he
received the clerk's notice informing him that on January 11, 1994,
the supreme court had denied both his motion for reconsideration of
the order suspending him from the practice of law for three years
and his motion to recall the mandate issued thereon. Consequently,
the defendant admitted that upon receipt of the clerk's notice of
January 11, 1994, he knew that 1) the supreme court had suspended
him from the practice of law for a period of three years, 2) the
court's mandate had issued on the order of suspension, 3) the
supreme court had refused to reconsider its order, and 4) the
supreme court had refused to recall its mandate.
Our examination of the record leads us to conclude that the
instructional error in this case was harmless beyond a reasonable
doubt as to the defendant's convictions for false personation of a
judicial official on the seven occasions alleged in counts II
through VIII of the complaint. The evidence that the defendant
knew that he was no longer authorized to practice law on those
occasions is so clear and convincing that no reasonable jury could
have found otherwise. We cannot conclude, however, that the
instructional error was harmless as to the defendant's conviction
for falsely representing himself to be an attorney authorized to
practice law on January 7, 1994, as alleged in count I of the
complaint.
By reason of the foregoing, we reverse the defendant's
conviction for violation of section 32-5 of the Code as alleged in
count I of the complaint, and remand this case to the circuit court
for a new trial on count I. We affirm the defendant's convictions
for violations of section 32-5 of the Code as alleged in counts II
through VIII inclusive of the complaint. Further, since we are
unable to determine from the record what, if any, effect the number
of offenses for which the defendant was convicted had upon the
sentence imposed by the trial court, we vacate the defendant's
sentence and additionally remand this case to the circuit court to
resentence the defendant on the seven convictions which we have
affirmed.
Affirmed in part, reversed in part, and vacated in part; cause
remanded.
HARTMAN and HOURIHANE, JJ., concurring.
FILED: 3/06/98
No. 1-97-0268
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. )
)
LATIF ABDUL-MUTAKABBIR, ) HONORABLE
) JAMES B. LINN,
Defendant-Appellant. ) JUDGE PRESIDING.
PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
The defendant, Latif Abdul-Mutakabbir, was convicted of eight
counts of false personation of a judicial official in violation of
section 32-5 of the Criminal Code of 1961 (Code) (720 ILCS 5/32-5
(West 1996)). The defendant appeals the conviction contending that
he was denied a fair trial when the court refused to instruct the
jury as to the mental state necessary for a violation of section
32-5 of the Code. For the reasons which follow, we affirm in part,
reverse in part, vacate the defendant's sentence, and remand the
cause to the circuit court for further proceedings consistent with
this opinion.
On November 11, 1993, the Illinois Supreme Court entered an
order suspending the defendant from the practice of law for a
period of three years. The mandate on the order issued on November
22, 1993, and a notice of the court's order and mandate was sent to
the defendant on the same day. On December 14, 1993, the defendant
filed a pro-se pleading with the clerk of the supreme court which
was entitled "Petition For Rehearing Or To Stay Mandate On
Certiorari To The United States Supreme Court" (hereinafter the
"petition"). On that same day, the clerk of the supreme court sent
a letter to the defendant informing him that his petition would be
treated by the supreme court as a motion to reconsider and to
recall its mandate. On January 11, 1994, the supreme court entered
an order denying the defendant's motion, and the clerk of the
supreme court sent a notice of the court's order to the defendant
and the Attorney Registration and Disciplinary Commission (ARDC).
On January 28, 1994, Jonathan Siner, an attorney employed by
the ARDC, sent a letter to the defendant stating that the ARDC had
been informed that, although the defendant was suspended from the
practice of law on November 22, 1993, he was still holding himself
out as an attorney. The letter stated that as of January 26, 1994,
the defendant was still listed as an attorney on the directory in
the lobby of his office building and a recorded message on the
defendant's business phone identified him as an attorney. Siner's
letter reminded the defendant of his duties as a disciplined
attorney under Supreme Court Rule 764 (134 Ill. 2d R. 764), and
requested that the defendant inform the ARDC in writing within 14
days as to the steps he had taken to comply.
The defendant forwarded a letter written on his law office
stationary to Siner on February 14, 1994. The entire text of the
defendant's letter states:
"In response to your letter of January 28, 1994, I direct
your attention to Illinois Supreme Court Rules 367 and
368.
Should you require additional information, please
let me know."
Sarie Weissman Montgomery, also an attorney employed by the
ARDC, wrote a letter to the defendant on January 11, 1995.
Montgomery's letter referenced the defendant's suspension and the
fact that his motion to reconsider had been denied, and requested
that he comply with the affidavit requirements of Supreme Court
Rule 764(g) (134 Ill. 2d R. 764(g)). Montgomery sent the letter to
the defendant via certified mail and received a return receipt
signed by the defendant.
Ellyn Rosen, another attorney employed by the ARDC, commenced
an investigation of the defendant after the ARDC received a
communication from a judge in the fall of 1994 indicating that the
defendant was practicing law. On April 24, 1996, Rosen acted as
the complainant in the eight count misdemeanor complaint charging
the defendant with violations of section 32-5 of the Code which
gave rise to this action (hereinafter the "complaint"). The
complaint alleged that on eight specified occasions from January 7,
1994, through April 19, 1996, the defendant "falsely represented
himself to be an attorney authorized to practice law." Prior to
trial, the State moved for and was granted leave to amend each of
the eight counts to allege that the defendant "knowingly and
falsely represented himself to be an attorney authorized to
practice law." (Emphasis added.) The amendment was made without
objection from the defendant, and neither the State's right to
amend nor the adequacy of the complaint as amended is an issue on
appeal.
Upon the trial of the cause, the defendant stipulated that he
represented himself to be an attorney authorized to practice law on
the eight occasions alleged in the complaint. His defense centered
around his belief that Supreme Court Rule 368 (134 Ill. 2d R. 368)
applied to orders entered by the supreme court in disciplinary
matters and, as a consequence, the filing of his petition acted to
stay the order of suspension and the mandate issued thereon. The
defendant also testified that since the supreme court ruled on his
petition as a motion to reconsider its order of November 11, 1993,
and not on his request for rehearing, the stay provided for in Rule
368(a) is still in effect. The defendant admitted that he received
the notices of the order of suspension and mandate sent by the
clerk of the supreme court on November 22, 1993, the notice of the
supreme court's denial of his motion to reconsider and to recall
its mandate sent by the clerk of the supreme court on January 11,
1994, Siner's letter on January 28, 1994, and Montgomery's letter
of January 11, 1995.
During the jury instruction conference, defense counsel
requested that the word "knowledge" be inserted into the in-
structions for false personation of a judicial official. The State
argued that the offense is an absolute liability offense and does
not require a mental state. The trial judge agreed with the State
and instructed the jury that to sustain the charge the State must
prove beyond a reasonable doubt that "the defendant falsely
represented himself to be an attorney authorized to practice law."
The jury found the defendant guilty of all eight counts as
charged. Subsequently, the trial court denied the defendant's
motion for a new trial and sentenced the defendant to two years'
probation, 60 days' incarceration, and 30 days of community
service. The defendant now appeals, contending that the trial
court erred when it refused to instruct the jury that knowledge was
an element of the offense of false personation of a judicial
official.
The first step in our analysis requires us to determine what,
if any, mental state is necessary for a violation of section 32-5
of the Code.
Section 32-5 provides in pertinent part that "[a] person who
falsely represents himself to be an attorney authorized to practice
law *** commits a Class B misdemeanor." 720 ILCS 5/32-5 (West
1996). Although the statute does not contain express language
describing a mental state as an element of the offense, it is not,
as the State contends, an absolute liability offense.
Section 4-9 of the Code which governs absolute liability
offenses provides that "[a] person may be guilty of an offense
without having, as to each element thereof, one of the mental
states described in Sections 4-4 through 4-7 if the offense is a
misdemeanor which is not punishable by incarceration or by a fine
exceeding $500, or the statute defining the offense clearly
indicates a legislative purpose to impose absolute liability for
the conduct described." (Emphasis added.) 720 ILCS 5/4-9 (West
1996). Although a violation of section 32-5 is a misdemeanor, it
carries a potential penalty of up to six months' incarceration.
730 ILCS 5/5-8-3(a)(2) (West 1996). Further, there is nothing in
the language of section 32-5 which clearly indicates a legislative
purpose to impose absolute liability. See People v. Anderson, 148 Ill. 2d 15, 23-24, 591 N.E.2d 461 (1992); People v. Cully, 286 Ill.
App. 3d 155, 675 N.E.2d 1017 (1997).
Given our conclusion that section 32-5 is not an absolute
liability offense, we must next determine which mental state
applies to "each element described by the statute defining the
offense." 720 ILCS 5/4-3(a) (West 1996). When, as in this case,
a statute neither prescribes a particular mental state nor creates
an absolute liability offense, then the mental state applicable to
each element is either intent, knowledge, or recklessness. People
v. Gean, 143 Ill. 2d 281, 288, 573 N.E.2d 818 (1991); see also 720
ILCS 5/4-3(b), 4-4, 4-5, 4-6 (West 1996).
The defendant argues, and we agree, that knowledge is the
appropriate mental state applicable to the falsity element of the
offense set forth in section 32-5 of the Code. To state that a
person commits an offense by falsely representing a fact to be true
without requiring that the person know of the falsity of the
representation is the equivalent of absolute liability. Conse-
quently, we hold that in order to convict an individual of an
offense under section 32-5 of the Code for falsely representing
himself to be an attorney authorized to practice law, the State is
required to prove beyond a reasonable doubt that such a person knew
that his representation was false when made.
The fact that a mental state is implied in an offense does not
necessarily require, however, that a court instruct the jury as to
the requisite mental state. When a mental state implied in an
offense by reason of section 4-3 of the Code necessarily
accompanies the acts prohibited by the statute creating the
offense, the court is not required to instruct the jury as to the
mental state. People v. Burton, 201 Ill. App. 3d 116, 558 N.E.2d 1369 (1990). However, "some mental states involved in offenses,
although not specifically mentioned in the statute defining the
offense, may be implied in the offense and be specific enough to
require instruction to the jury." Burton, 201 Ill. App. 3d at 122.
We believe that the mental state of knowledge implied with respect
to the falsity element of an offense under section 32-5 of the Code
is specific enough to require an instruction. In cases where a
person is charged with falsely representing himself to be an
attorney authorized to practice law, there will rarely be a
question as to whether the representation was false, but there may
well be a question as to whether the person knew that the
representation was false, especially in the case of a recently
suspended attorney. Accordingly, the trial court erred in refusing
the defendant's request that the word "knowledge" be inserted into
the instruction setting forth the elements of the offense charged
in this case. See Cully, 286 Ill. App. 3d at 166.
The fact that we have determined that an instructional error
occurred in this case does not end our analysis. "Even though
error may have been committed in giving or refusing instructions it
will not always justify reversal when the evidence of the
defendant's guilt is so clear and convincing that the jury could
not reasonably have found him not guilty." People v. Ward, 32 Ill. 2d 253, 256, 204 N.E.2d 741 (1965); see also People v. Jones, 81 Ill. 2d 1, 9, 405 N.E.2d 343 (1979); Cully, 286 Ill. App. 3d at
166. In this case, the State argues that any error in failing to
instruct the jury with respect to the requisite mental state was
harmless in light of the overwhelming evidence of the defendant's
guilt. We agree as to all but one of the offenses for which the
defendant was convicted.
As stated earlier, the defendant stipulated that he repre-
sented himself to be an attorney authorized to practice law on the
eight occasions alleged in the complaint. The theory of the
defense in this case was the defendant's contention that, although
he was aware that the supreme court had entered an order suspending
him from the practice of law prior to the dates upon which the
complaint alleged that he falsely represented himself to be an
attorney authorized to practice law, he believed that the filing of
his petition on December 14, 1993, acted to stay both the order of
suspension and the mandate issued thereon by reason of the
provisions of Supreme Court Rule 368. The defendant testified that
since the supreme court never ruled on his request for a rehearing,
he was of the belief that the stay on the order suspending him from
the practice of law was never lifted. Before discussing the
effects that the defendant's professed beliefs may have had on his
mental state at the time that he represented himself to be an
attorney authorized to practice law, we will briefly address the
correctness of his interpretation of Rule 368.
Article III of the Illinois Supreme Court Rules (134 Ill. 2d
R. 301, et seq.) governs appeals in civil cases. Supreme Court
Rule 368 provides that a timely filed petition for rehearing stays
a reviewing court's mandate in a civil appeal "until disposition of
the petition unless otherwise ordered by the court." 134 Ill. 2d
R. 368(a). However, an attorney disciplinary proceeding is not a
civil action; rather, it is an investigation into the conduct of an
attorney to determine whether he should be disbarred or otherwise
disciplined. In re Yablunky, 407 Ill. 111, 94 N.E.2d 841 (1950).
Consequently, Rule 368 has no application to an order entered by
the supreme court in a disciplinary proceeding.
The Illinois Supreme Court "possesses the inherent and
exclusive power to regulate the practice of law in this State and
to sanction or discipline the unprofessional conduct of attorneys
admitted to practice before it." In re Mitan, 119 Ill. 2d 229,
246, 518 N.E.2d 1000 (1987). In the exercise of that power, the
supreme court has promulgated a comprehensive scheme to regulate
attorneys and punish their misconduct. People ex rel. Brazen v.
Finley, 119 Ill. 2d 485, 494, 519 N.E.2d 898 (1988). Supreme Court
Rule 753 (134 Ill. 2d R. 753) governs attorney disciplinary
proceedings from the investigation stage through the entry of final
orders by the supreme court, and it does not provide for petitions
for rehearing after the supreme court has entered an order of
suspension or for any automatic stay of such an order once issued.
In sum, the defendant was wrong in his belief that the filing
of his petition on December 14, 1993, stayed the effect of the
order suspending him from the practice of law. Nevertheless, we
must still address the effect, if any, that the defendant's
mistaken belief had upon his mental state at the time of the
offenses alleged in the complaint.
A person's mistake as to a matter of law can form the basis of
a defense if it negates the mental state element of the offense
charged. People v. Sevilla, 132 Ill. 2d 113, 125, 547 N.E.2d 117
(1989); see also 720 ILCS 5/4-8(a) (West 1996). In this case, our
focus is on the question of whether the defendant knew that he was
not authorized to practice law at the time he made the
representations alleged in the complaint. "Knowledge generally
refers to an awareness of the existence of facts which make an
individual's conduct unlawful." Sevilla, 132 Ill. 2d at 126.
Section 4-5 of the Code which defines knowledge states, in
pertinent part, that:
"A person knows, or acts knowingly or with knowledge
of:
(a) The nature or attendant circumstances of his
conduct described by the statute defining the offense,
when he is consciously aware that his conduct is of such
nature or that such circumstances exist. Knowledge of a
material fact includes awareness of the substantial
probability that such fact exists." 720 ILCS 5/4-5(a)
(West 1996).
Had the jury been properly instructed on the mental state
necessary for the commission of an offense under section 32-5 of
the Code and accepted the defendant's testimony that he believed
that the filing of his petition on December 14, 1993, stayed the
mandate on the order suspending him from the practice of law, they
could have found that the State failed to prove that the defendant
knew that he was not authorized to practice law on January 7, 1994,
the date upon which count I of the complaint charged that he
violated the statute. However, the same reasoning is not
applicable to the offenses charged in counts II through VIII of the
complaint which allege violations of the statute on seven occasions
from February 24, 1994, through April 19, 1996.
The defendant's own admissions in this case make it blatantly
evident that, whatever mistaken belief he may have had as to the
force and effect of the order suspending him from the practice of
law by reason of the filing of his petition on December 14, 1993,
this belief was dispelled as of January 11, 1994. The defendant
admitted that he received a letter from the clerk of the supreme
court informing him that the petition which he filed on December
14, 1993, would be treated by the court as a motion to reconsider
the order suspending his right to practice law and as a motion to
recall the court's mandate. The defendant also admitted that he
received the clerk's notice informing him that on January 11, 1994,
the supreme court had denied both his motion for reconsideration of
the order suspending him from the practice of law for three years
and his motion to recall the mandate issued thereon. Consequently,
the defendant admitted that upon receipt of the clerk's notice of
January 11, 1994, he knew that 1) the supreme court had suspended
him from the practice of law for a period of three years, 2) the
court's mandate had issued on the order of suspension, 3) the
supreme court had refused to reconsider its order, and 4) the
supreme court had refused to recall its mandate.
Our examination of the record leads us to conclude that the
instructional error in this case was harmless beyond a reasonable
doubt as to the defendant's convictions for false personation of a
judicial official on the seven occasions alleged in counts II
through VIII of the complaint. The evidence that the defendant
knew that he was no longer authorized to practice law on those
occasions is so clear and convincing that no reasonable jury could
have found otherwise. We cannot conclude, however, that the
instructional error was harmless as to the defendant's conviction
for falsely representing himself to be an attorney authorized to
practice law on January 7, 1994, as alleged in count I of the
complaint.
By reason of the foregoing, we reverse the defendant's
conviction for violation of section 32-5 of the Code as alleged in
count I of the complaint, and remand this case to the circuit court
for a new trial on count I. We affirm the defendant's convictions
for violations of section 32-5 of the Code as alleged in counts II
through VIII inclusive of the complaint. Further, since we are
unable to determine from the record what, if any, effect the number
of offenses for which the defendant was convicted had upon the
sentence imposed by the trial court, we vacate the defendant's
sentence and additionally remand this case to the circuit court to
resentence the defendant on the seven convictions which we have
affirmed.
Affirmed in part, reversed in part, and vacated in part; cause
remanded.
HARTMAN and HOURIHANE, JJ., concurring.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
