Editor's note: This article has been revised and updated from a previous version to include comment from a spokesperson for the Illinois Attorney Registration and Disciplinary Commission.
Over the coming months, state regulators who oversee those working as attorneys in Illinois will be asked to decide whether Cook County State’s Attorney Kim Foxx and perhaps some of her top lieutenants should face any sanctions, not only for the way they may have mishandled the criminal case against Jussie Smollett, but also for allegedly making false and misleading statements to the public about the case and their decisions.
In a report released Monday, Dec. 20, Smollett special prosecutor Dan Webb said he would ask the Illinois Attorney Registration and Disciplinary Commission to launch a formal inquiry into Foxx and her office, to determine if Foxx or her team violated professional ethics standards.
Trisha Rich, president elect of the Association of Professional Responsbility Lawyers
| Holland & Knight
The report was released a few days after a jury convicted actor Jussie Smollett. Prosecutors said Smollett had staged a hate crime against him in January 2019 in Chicago, and then had lied to police investigating his claims.
The ARDC is tasked by the Illinois Supreme Court with conducting formal inquiries into accusations of professional misconduct against lawyers. The ARDC is then empowered to ask the Illinois high court to punish lawyers. Lawyers confirmed to have engaged in professional misconduct could be censured, suspended or even disbarred, depending on the nature, severity and notoriety of the alleged misconduct, and blocked from practicing law in Illinois.
A spokesman for the ARDC said, on Dec. 27, that, under Illinois Supreme Court rules, "the ARDC’s investigations are confidential. Therefore, this agency cannot ever confirm or deny that any Illinois lawyer is under investigation by this office."
However, should the Illinois Supreme Court ultimately act on a recommendation from the ARDC to disbar or suspend Foxx, it would mean she could no longer be eligible to serve as Cook County State’s Attorney.
In the report, Webb said he could not find enough evidence to accuse Foxx or anyone in her office of criminal conduct related to the incident.
But Webb accused Foxx and her office of abusing their discretion as prosecutors in initially striking a deal with Smollett to allow him to walk free of charges, and then of issuing multiple and repeated false, deceptive and misleading public statements about the case and about Foxx’s conduct.
Webb, for instance, noted Foxx had misled the public about the extent of her conversations with those close to Smollett, including Smollett’s sister, Jurnee. Webb noted Foxx continued to communicate with Jurnee Smollett four days after Chicago Police informed her office that Smollett was a suspect in a criminal investigation.
Smollett’s sister further told Webb that Foxx had told her Jussie Smollett “should be fine as long as he stays consistent.”
Foxx has denied saying anything of the sort.
Webb further asserted Foxx had misled the public about her decision to “recuse” herself from the case, even though her own advisers had told her she could not do so without requesting a special prosecutor be appointed.
Webb said he lacked the authority to directly accuse Foxx of professional ethics violations, but said he was referring the matter to the ARDC to investigate such possibilities.
For her part, Foxx has hired a personal lawyer to represent her. That attorney, Michael Bromwich, has stated Foxx believes Webb has overreached in this matter, describing his report as “deeply flawed.”
Bromwich has stated Webb incorrectly characterized as “false and misleading,” any of Foxx’s “erroneous,” “incorrect” or “inaccurate” statements about the Smollett case, which he said could be the result of bad information or Foxx’s “bad recollection.”
Trisha Rich, a lawyer with the firm of Holland & Knight in Chicago, said the ARDC may be hard pressed not to look into the matter.
Rich’s practice focuses on legal ethics and professional responsibility matters, and she is recognized as a “national leader in the legal ethics community,” according to her bio posted on the Holland & Knight site.
Rich currently holds the title of president elect of the Association of Professional Responsibility Lawyers, a national organization focused on attorney professional ethics and ethical standards.
“There are few things that the ARDC takes more seriously than dishonesty,” said Rich.
She pointed to Illinois Supreme Court Rule 8.4c, which states it is considered “professional misconduct for a lawyer to… engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Rich noted the scope of this rule extends to all spheres of a lawyer’s life, including personal, professional and political.
“It’s one of our most important rules,” Rich said.
Rich said if the ARDC has initiated an inquiry, it may still be in its earliest stages, as the matter may have been stayed, pending resolution of the Smollett criminal case.
She said the matter will likely be handled quietly for some time, before it would ever enter the public view.
Rich said many disciplinary complaints are handled in a “letter-writing phase,” in which the accuser and the lawyer who is accused exchange written arguments through the ARDC.
Rich said the process would likely take “years, perhaps 3 to 5 years.”
“Don’t expect any quick resolution here,” Rich said.
Rich said the high-profile nature of the case, coupled with Webb’s professional reputation as one of the country’s best prosecutors, may make it difficult for the ARDC to ignore.
At the same time, the case’s political nature may make any complaint filed against Foxx more difficult for the ARDC to easily unravel.
Rich noted there are very few instances of successful professional misconduct complaints against prosecutors, largely due to the political nature of the office, and the sizable discretion prosecutors enjoy when handling criminal cases.
"They don't want to look political here," said Rich.
Rich said she could not recall a similar ethics complaint filed against a prosecutor in Illinois.
She noted that in some instances, prosecutors elsewhere have been charged with criminal conduct, such as obstruction of justice. Rich pointed to Georgia, where recently a former district attorney was charged with criminal misconduct for allegedly interfering in the investigation of the death of Ahmad Arbery, a Black man who was shot and killed by white men who pursued him while he was jogging through their neighborhood.
Rich noted in this instance, Foxx is accused of potential professional misconduct, not criminal actions.
But Rich said professional consequences could still be in offing, and could yet produce significant consequences for Foxx and her office.
“If a lawyer makes a mistake and then lies to try to cover it up, and apologizes for it, the ARDC may take that into account,” said Rich. “But in this case, Mr. Webb is alleging intentional misrepresentation.
“That’s not a mistake you lied about. That’s just… you lied.”
According to the Illinois ARDC site, Foxx has been admitted to practice law in Illinois since 1997, and has no pending disciplinary actions against her.