ANSWER: Now comes Htin Myat Win, Respondent herein, by his attorney, Carl R. Draper,

Transcription

1 In the Matter of: HTIN MYAT WIN FILED BEFORE THE HEARING BOARD OF THE JAN - 8 ZOIfi ILLINOIS ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION flfly R &DISC COMM CHICAGO Attorney-Respondent, Commission No.: 2015PR00112 ANSWER Now comes Htin Myat Win, Respondent herein, by his attorney, Carl R. Draper, and for his Answer to the Complaint, he states as follows: COUNT 1 (Misrepresentation to a Tribunal and Lack of Communication) 1. Between March 18, 2013 and December 15, 2014, Respondent was employed as an Assistant Attorney General in Springfield, Illinois. 2. During his employment, Respondent was assigned to represent Kevin DeLong and Glendal French, two correctional officers at Pontiac Correctional Center, who were defendants in a suit filed by Marlin Mintor, Sr., an inmate at Pontiac Correctional Center. The case was docketed as: Minter v. DeLong and French, 13 CV 1497, United States District Court, Central District ofillinois, Peoria Division. 3. On October 15, 2014, the judge in case number 13 CV 1497, Joe Billy McDade, ordered the warden of Pontiac Correctional Center, Randy Pfister ("Pfister"), to Springfield,IL Page 1 of 18

2 personally appear at a hearing scheduled on November 12, 2014, or produce certain records at least five days prior to the scheduled hearing. Judge McDade ordered Respondent to notify Pfister about the order. 4. At no time prior to November 12, 2014, did Respondent forward Judge McDade's order to Pfister or anyone at Pontiac Correctional Center, nor did Respondent notify Pfister or anyone at Pontiac Correctional Center about the contents ofthe order. 5. At no time prior to November 12, 2014, did Pfister provide any documents in response to the court's order of October 15, 2014, nor did Pfister appear for the hearing on November 12, On November 12, 2014, during questioning by Judge McDade, Respondent stated that he had forwarded a copy of the Judge McDade's October 15, 2014 order to the Litigation Coordinator at Pontiac Correctional Center, Jennifer Robison ("Robison"). 7. Respondent's statement to Judge McDade that he had forwarded a copy ofthe October 15, 2014 order to Robison was false because he had not sent a copy ofthe order FeldmanWasses 1307 S Seventh St. Springfield,1L62705 Page 2 of 18

3 to Robison or otherwise notified her or Pfister about the contents ofthe order, or the hearing on November 12, At the time Respondent made the statement to Judge McDade set forth m paragraph six, above, Respondent knew that his statement was false. Respondent denies the allegations in this paragraph. Respondent was unsure whether he had forwarded the matter but answered that he did based on Respondent's usual and customary practice of forwarding matters requiringthe attention ofdefendants, witnesses, orotherparties employed with IDOC facilities to the facility litigation coordinator. 9. During the hearing on November 12, 2014, Judge McDade made the following statement concerning Pfister's failure to comply with the October 15, 2014 order: THE COURT: Mr. Win, you may tell the warden that I'm extremely upset; and if he refuses to comply with an order of mine in the future, I will have him arrested by the United States Marshall. MR. WIN: Yes, Your Honor. THE COURT: Okay? Tell him I mean this. And I still may. I still may because the information that you intended to get should have been in my hands five days before this hearing, so he's not off the hook yet. 10. By reason ofthe conduct outlined above respondent has engaged in the following misconduct: a. knowingly making a false statement of fact or law to a tribunal, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010), by conduct including falsely representing to Judge McDade that he had 1307 S Seventh St Springfield,IL Page 3 of 18

4 forwarded the October 15, 2014 order to Robison, and thereafter failing to correct that false statement; Respondent admits in part and denies in part the allegations in paragraph 10 part a. Respondent did not have specific knowledge or recollection as to whether he sent a correspondence to the prison litigation coordinator during the hearing. Respondent answered that he did based on respondent's usual and customary practice of forwarding matters requiring the attention ofdefendants, witnesses, or otherparties employed with IDOC facilities to the facility litigation coordinator. Respondent admits that he failed to correct the misstatement concerning sending a correspondence to the prison litigation coordinator upon discovering that no correspondence was sent following the November 12, 2014 hearing. b. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010), by conduct including falsely representing to Judge McDade that he had forwarded the October 15, 2014 order to Robison; Respondent admits in part and denies in part the allegations in paragraph 10 part a. Respondent did not have specific knowledge or recollection as to whether he sent a correspondence to the prison litigation coordinator during hearing. Respondent answered that he did based on respondent's usual and customary practice of forwarding matters requiringthe attention ofdefendants, witnesses, orotherparties employed with IDOC facilities to the facility litigation coordinator. Springfield,1L62705 Page 4 of 18

5 Respondent admits that he failed to correct the misstatement concerning sending a correspondence to the prison litigation coordinator upon discovering that no correspondence was sent following the November 12, 2014 hearing. c. failing to act with reasonable diligence and promptness in representing a client, in violation ofrule 1.3 ofthe Illinois Rules ofprofessional Conduct (2010), by conduct including failing to forward the October 15, 2014 order to Robison or Pfister, or inform Robison or Pfister of the order or the November 12, 2014 hearing. COUNT II (Misrepresentation and Creation of a False Letter) 11. The administrator re-alleges and incorporates paragraphs 1 through 9 above. Respondent incorporates by reference his answers to paragraphs 1 through 9 above. 12. On November 12, 2014, at 10:38 p.m., at the office of the Illinois Attorney General in Springfield, Respondent created a letter which he dated October 22, 2014, which was addressed to Jennifer Robison. The letter stated as follows: Re: Minter v. DeLong USDC-CD [sic] Dear Ms. Robison: This Court has ordered Warden Pfister to appear at a hearing in the matter of Minter v. DeLong scheduled for November 12, 2014 at 2:00 p.m. However, in lieu of personal appearance, Warder Pfister may produce a copy of relevant 1307 s Seventh St Page 5 of 18

6 grievances from Inmate Minter's master file five days prior to the hearing along with an affidavit. Please refer to the Order enclosed with this letter. Please note that the Order sets the hearing at 10:00 a.m. but the Court later reset the hearing for 2:00p.m. Thank you for your cooperation. If you have any question regarding this matter, please contact me at (217) Sincerely, Htin M. Win, Assistant Attorney General 13. On November 13, 2014, at approximately 8:45 a.m., Respondent met with his supervisor, Christopher Higgerson ("Higgerson"), an Assistant Attorney General who was the Unit Supervisor of Prison Litigation. 14. In the meeting, Respondent stated to Higgerson that he had sent a letter notifying Pfister ofthe November 12,2014hearingin case 13 CV 1497, but that Pfister did not appear at the hearing. 15. Respondent's statement to Higgerson that he sent a letter to Pfister notifying him of the November 12, 2014 hearing was false because Respondent did not notify Pfister or anyone at Pontiac Correctional Center about the November 12, 2014 hearing, and Respondent did not create the letter concerning the hearing until the evening of November 12, S Seventh St Page 6 of 18

7 16. At the time Respondent made the statement to Higgerson, set forth in paragraph 15, above, Respondent knew that his statement to Higgerson was false and Respondent intended to mislead Higgerson into believing that he sent a letter on October 22, 2014, notifying Pfister ofthe hearing. 17. During the meeting with Higgerson, Respondent produced the back-dated October 22, 2014 letter, referred to in paragraph 12, above. Respondent represented to Higgerson that the letter was a copy ofthe letter he sent to Robison on October 22, Respondent lacks present recollection sufficient to admit or deny the allegations in this paragraph. However, Respondent admits that he produced the back-dated October 22, 2014 letter to Higgerson at some point. 18. Respondent's representation to Higgerson that the letter he produced was a copy ofthe letter he sent to Robison on October 22, 2014, was false because Respondent did not create the letter until the evening of November 12, At the time Respondent made the representation to Higgerson described in paragraph 17, above, Respondent knew that his representation was false and Respondent intended to mislead Higgerson into believing that he prepared and sent the letter on October 22, Page 7 of 18

8 20. On November 13, 2014, Respondent traveled to Pontiac Correctional Center where he met with Pfister and Robison. Respondent took a copy of the letter described in paragraph 12, above. 21. Without disclosing or discussing the letter described in paragraph 12, above, with Robison or Pfister, Respondent purposely left a copy of the letter dated October on Pfister's desk. Pfister's secretary later found the letter and placed it in Robison's mailbox. Respondent denies that he did not discuss the letter described in paragraph 12 with Robison or Pfister, and lacks present recollection as to whether he left a copy of the letter described in paragraph 12. Respondent inquired as to whether a correspondence containing Order 35 was received in the meeting with Robison and Pfister. 22. Respondent purposely left a copy of the letter dated October 22, 2014 on Pfister's desk without discussing or disclosing the letter in order to make it appear as though Pfister received the letter prior to November 13, Respondent denies the allegations in this paragraph. 23. By reason of the conduct outlined above, Respondent has engaged m the following misconduct: a. conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010), by conduct including creating a letter on November 12, 2014, dated October 22, 2014, addressed to Robison, in an attempt to deceive Higgerson, Pfister, and Robison; representing to Higgerson that he sent a letter to Page 8 of 18

9 Robison on October 22, 2014; and by surreptitiously placing the letter on Pfister's desk without discussing the letter with him. Respondent admits having engaged in conduct in violation of Rule 8.4c by creating a letter on November 12, 2014 dated October 22, 2014 and by representing to Higgerson that he sent a letter to Robison on October 22, Respondent denies having engaged in conduct in violation of Rule 8.4c by surreptitiously placing the letter on Pfister's desk without discussing the letter with him. b. knowingly making a false statement of material fact or law to a third person in violation of Rule 4.1(a) of the Illinois Rules of Professional Conduct (2010), by conduct including falsely stating to Higgerson that he had created and sent the letter to Robison on October 22, COUNT III (False Affidavit) 24. The Administrator re-alleges and incorporates paragraphs 1 through 22 above. Respondent incorporates by reference his answers to paragraphs 1 through 22 above. 25. On November 21, 2014, Pfister, Robison, and Respondent all filed affidavits in case number 13 CV 1497 after Judge McDade requested that the U.S. Attorney's Office investigate whether Pfister should be held in contempt of court. Page 9 of 18

10 26. In their affidavits, both Pfister and Robison attested to the fact that they were unaware ofjudge McDade's October 15, 2014 order in case number 13 CV 1497, until after the hearing was concluded on November 12, In Respondent's affidavit, he stated as follows: 4. On October 22, 2014, I prepared a letter addressed to the litigation coordinator at Pontiac Correctional Center and enclosed the above referenced Order and subsequent text order entered on September 17, 2014 reflecting a change in the time of the Pavey Hearing from 10:00 a.m. to 2:00 p.m. The litigation coordinator is a staff member within an IDOC facility who, among other things, schedules staff members for court appearances. 5. It is my belief that on October 22, 2014, I placed the letter in a tray for the outgoing mail and that the letter was mailed. However, I do not have a clear recollection of exactly what steps I took to mail the letter. 6. My secretary was not present on October 22, My usual practice when my secretary is not present is to prepare letter and place them with the outgoing mail myself. 7. I assumedthat I provided the Wardenwith sufficient notice. I now realize that I should have followed up with the litigation coordinator at Pontiac Correctional Center and the Warden to determine whether the letter was received by Warden Pfister and ensure that he would comply with its terms. I sincerely apologize to the Court for failing to do so. 28. Respondent's statement in the affidavit that he prepared a letter on October 22, 2014, addressed to the Litigation Coordinator regarding case 13 CV 1497, was false Page 10 of 18

11 because Respondent did not create the letter until November 12, 2014, after the hearing in case 13 CV At the time Respondent drafted and signed the affidavit, Respondent knew that his statement concerning the preparation of the letter was false. 30. Respondent's statements in the affidavit that he believed that the letter had been mailed on October 22, 2014, and that he assumed he provided the Warden with sufficient notice ofthe hearing, were false and misleading because Respondent knew that he had not created the letter until November 12, 2014 and that the letter had not been mailed to Robison in October At the time he prepared and signed the affidavit, Respondent knew that his statements in the affidavit as described above in paragraph 30, above, were false. 32. By reason of the conduct outlined above, respondent has engaged in the following misconduct: a. knowingly making a false statement offact or law to a tribunal in violation ofrule 3.3(a)(1) ofthe Illinois Rules ofprofessional Conduct (2010) by conduct including filing an affidavit in which he falsely stated he prepared and mailed a letter to Robison on October 22, 2014, and that he provided notice of the hearing to Pfister; b. failing to correct a false statement ofmaterial fact previously made to the tribunal by the lawyer, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010) by conduct including his failure to correct his Page 11 of 18

12 statements to the court on November 12, 2014, as set forth in paragraph six, above. c. conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010), by conduct including filing an affidavit in which he falsely stated he prepared and mailed a letter to Robison on October 22, 2014 and that he provided notice ofthe hearing to Pfister; and d. conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010), by conduct including filing a false affidavit in a court proceeding. COUNT IV (False statements to ARDC) 33. The Administrator re-alleges and incorporates paragraphs 1 through 31 above. Respondent incorporates by reference his answers to paragraphs 1 through 31 above. 34. On March 25, 2015, the Administrator docketed an investigation of Respondent after receiving a report from the Illinois Attorney General's Office. 35. On March 26, 2015, the Administrator sent a copy ofthe report to Respondent and requested that he respond to the report within 14 days. Page 12 of 18

13 36. On April 8, 2015, following receipt of the letter from the Administrator, Respondent used his personal computer to recreate the letter he purportedly sent on October 22, 2014 to Robison. Respondent then used a software program entitled "Attribute Changer" to change the creation date of the letter to Robison from April 8, 2015, to October 21, Respondent then uploaded the letter onto a zip drive. 37. On April 24, 2015, Respondent sent a written response to the Administrator's report from the Attorney General's Office. In the response, Respondent stated: As stated in my affidavit, I believe that on October 22, 2014,1 forwarded a letter informing Warden Pfister of the Court's Order to the prison litigation coordinator......after the Pavey hearing on November 12, 2014, I went home to eat and returned to my office in the evening. In the case file for Minter v. DeLong, I found 2 signed original copies of my letter to the prison litigation coordinator and 1 copy ofthe Court's October 15, 2014 Order....Additionally, I did not save a copy of the letter on my office computer. However, I had brought my personal laptop computer and zip drive with me and found a copy ofthe letter titled "(letter draft)" in a wordpad documents on both the zip drive and laptop. On October 22,1 likely transferred a copy ofthe letter to my office computer as I usually do when I work from home, and printed it for mailing. On November 12,1 specifically recall that I also scanned a copy ofthe letter and saved it as a pdf document. I believe that I titled the pdf (Letter re: Order 35). 38. Respondent's statements above: 1) that he sent a letter to the Warden on October 22, 2014; 2) on November 12, 2014, he found two original copies ofthe letter to Robison at his office; and 3) he found the letter to Robison on his personal laptop and then he uploaded the letter to a zip drive at that time; and 4) he transferred a copy Page 13 of 18

14 of the letter to his officecomputer, where he printed it for mailing, were false because Respondent did not send a letter to Pfister or Robison on October 22, 2014, and he did not create the letter on his personal computer until April 8, At the time he prepared and sent the written response to the Administrator, Respondent knew that his statements set forth in paragraph 37, above, were false and he made the statements in order to mislead the ARDC and conceal his misconduct. 40. On August 4, 2015, Respondent appeared at the ARDC Springfield office and gave sworn testimony. In his sworn testimony, Respondent stated that he created the letter to Robison in October 2014, on his personal computer and transferred the letter to a zip drive at that time. He further stated that he transferred a copy ofthe letter to his office computer using the zip drive in October Respondent's statements set forth in paragraph 40, above, were false because Respondent did not create the letter to Robison on October 22, 2014, and he did not put the letter on a zip drive until April 8, At the time Respondent made the statements under oath set forth in paragraph 40 above, Respondent knew the statements were false and he made the statements in an attempt to mislead the ARDC. Page 14 of 18

15 43. On August 6, 2015, Respondent's counsel was served with a subpoena requiring Respondent to produce his personal laptop computer on August 18, 2015 for analysis by Forensicon, a computer forensics company. 44. On August 17, 2015, Respondent indicated that he would not produce his personal laptop for analysis and that he would submit a written response "correcting" his previous written and oral responses to the Administrator. 45. On August 31,2015, Respondent submitted a revised response in which he admitted that his previous written response and his sworn statement testimony were false. 46. By reason of the conduct outlined above, Respondent has engaged in the following misconduct: a. in connection with a disciplinary matter, knowingly making a false statement of material fact in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct (2010), by conduct including: making false statements in his letter to the ARDC; falsely stating under oath that he created the letter to Robison in October 2014; falsely stated that he transferred the letter to a zip drive in October 2014; and falsely stated that he transferred the letter to his office computer using the zip drive in November b. conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010), by conduct including making false statements in his letter to the ARDC; falsely stating under oath that he created the letter to Robison in October 2014; falsely stated that he transferred the letter to a zip drive in Page 15 of 18

16 October 2014; and falsely stated that he transferred the letter to his office computer using the zip drive in November WHEREFORE, the Respondent respectfully requests that this matter be assigned to a panel ofthe Hearing Board, that a hearingbe held, and that the panel make findings of fact, conclusions of fact and law, and a reasonable recommendation for discipline if such is warranted. DISCLOSURE PURSUANT TO ARDC RULE 231 Now comes Respondent, Htin Myat Win, by Carl R. Draper, his attorney, and pursuant to ARDC Rule 231(a) he states that he has not been admitted to practice law before any other state court other than the State of Illinois. He has been authorized to practice law before the federal courts in Illinois, particularly, in the central district and southern district of Illinois, and as an Assistant Attorney General, he was authorized to practice before any state administrative agency ofthe State of Illinois. Pursuant to ARDC Rule 231(b) Respondent DISCLOSURE PURSUANT TO ARDC RULE 231 Now comes Respondent, Htin Myat Win, by Carl R. Draper, his attorney, and pursuant to ARDC Rule 231(a) he states that he has not been admitted to practice law before any other state court other than the State of Illinois. He has been authorized to practice law before the federal courts in Illinois, particularly, in the central district 1307 S Seventh St Page 16 of 18

17 and southern district of Illinois, and as an Assistant Attorney General, he was authorized to practice before any state administrative agency ofthe State of Illinois. Pursuant to ARDC Rule 231(b) DISCLOSURE PURSUANT TO ARDC RULE 231 Now comes Respondent, Htin Myat Win, by Carl R. Draper, his attorney, and pursuant to ARDC Rule 231(a) he states that he has not been admitted to practice law before any other state court other than the State of Illinois. He has been authorized to practice law before the federal courts in Illinois, particularly, in the central district and southern district of Illinois, and as an Assistant Attorney General, he was authorized to practice before any state administrative agency ofthe State of Illinois. Pursuant to ARDC Rule 231(b) Respondent also obtained the Illinois Producer License in 2007 issued by the Illinois Department of Insurance. Respondent's name appeared as Htin Myat Win on the license. Respondent no longer has custody of the license and is unable to recall any registration number assigned. Respondent has not used the license since 2007 and has not renewed the license. Respectfully Submitted, Htin Myat Win, Respondent }arl R. Draper 1307 S Seventh St Page 17 of 18