Already facing a possible disciplinary inquiry from the regulators of Illinois’ legal profession, Cook County State’s Attorney Kim Foxx may have added to that risk with her comments following the sentencing of actor Jussie Smollett, insinuating a group of Cook County judges and special prosecutor Dan Webb worked together to undermine her office and railroad Smollett into jail.
However, at least one legal observer, who specializes in legal ethics, believes it would be difficult for regulators to make any new ethical charges stick, at this point.
Last week, Cook County Judge James Linn sentenced Smollett to 150 days in the Cook County Jail, after he was convicted of making false statements to police who were investigating Smollett’s claims he was attacked in January 2019 by supporters of former President Donald Trump.
Trisha Rich, president elect of the Association of Professional Responsbility Lawyers
| Holland & Knight
Smollett claimed his allegedly white attackers targeted him because he is Black and gay.
Smollett’s story set off a firestorm nationally, with many prominent Democratic politicians and celebrities rushing to condemn the attack, and calling for action against Trump and Republicans, who they blamed for the alleged racist and homophobic attack.
The Chicago Police Department’s investigation of Smollett’s claims, however, indicated Smollett had staged the attack, allegedly to gain him attention.
But Foxx’s office then shocked the city and many across the country when prosecutors abruptly dropped charges against Smollett. The questionable decision infuriated police and raised concerns from Foxx’s colleagues in state’s attorney’s offices across the state.
Webb ultimately put Smollett on trial, and secured a conviction from a jury.
For his part, Smollett has maintained his innocence throughout the process.
As part of his duties, Webb also investigated Foxx’s handling of the Smollett case, with an eye toward discovering if Foxx had been part of any behind-the-scenes effort to allow Smollett to walk free.
In his report, which was released following Smollett’s conviction, Webb indicated he could not find enough evidence to accuse Foxx or anyone in her office of criminal conduct related to the Smollett case.
But Webb did accuse Foxx and her office of abusing their discretion as prosecutors in initially striking a deal with Smollett to allow him to escape prosecution, and then of issuing multiple and repeated false, deceptive and misleading public statements about the case and about Foxx’s conduct throughout.
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.
Any investigation by the ARDC would remain secret for some time, perhaps even years, before the commission decides to take action, if ever.
At the time the report was released, Foxx criticized Webb, calling his report “incorrect,” “inaccurate” and “deeply flawed.”
However, after Smollett was sentenced, Foxx followed up on her earlier criticism of Webb’s report by further attacking the special prosecutor.
In her statements, Foxx also lashed out at judges Toomin and Linn, perhaps among others, who she accused of presiding over a “kangaroo prosecution” with a predetermined outcome, to punish Smollett and Foxx, by extension.
She further accused them of being racist bullies, ganging up on her office with a “mob mentality” to “marginalize” and “attack” her because she is a Black female prosecutor, who is “fighting to create a more just system, one that recognizes the rule of law.”
While Foxx’s statements were critical of at least two sitting judges, and of the court-appointed special prosecutor, it remains to be seen whether Foxx, as an elected prosecutor, will be made to answer for such open criticism of those officers of the court, and the judicial system, overall.
After her office dropped charges against Smollett in 2019, Foxx became a rare target of criticism from her fellow prosecutors across the state, who openly questioned the arrangement with Smollett and Foxx’s public explanations.
“Prosecutors, defense attorneys, and judges alike do not recognize the arrangement Mr. Smollett received,” the Illinois Prosecutors Bar Association said in a March 2019 statement.
“Even more problematic, the State’s Attorney (Foxx) and her representatives have fundamentally misled the public on the law and circumstances surrounding the dismissal.”
The statement was signed by IPBA President Lee Roupas, an assistant state’s attorney in DuPage County.
Neither Roupas nor the IPBA responded to questions from the Cook County Record concerning Foxx’s most recent statements about the Smollett prosecution.
Trisha Rich, an attorney with the firm of Holland & Knight, of Chicago, said Foxx’s statements could prompt scrutiny from legal profession regulators, who could see the possibility of ethical breaches by Foxx.
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 professional biography posted on the Holland & Knight website.
Rich currently is president elect of the Association of Professional Responsibility Lawyers, a national organization focused on attorney professional ethics and standards.
Rich said Foxx’s comments could, particularly, draw scrutiny under Illinois Supreme Court Rule 8.2, which forbids lawyers in Illinois from making false statements about judges.
Specifically, that rule states: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer…”
Rich said Foxx’s statements were “certainly unusual.”
“It is a little surprising to see a prosecutor speak out in that way,” she said.
However, Rich said, historically, attorneys are rarely disciplined under Rule 8.2, because the rule also runs up against lawyers’ constitutional rights to free speech.
Rich said she believes Foxx’s statements were carefully worded to painstakingly avoid crossing the line between free speech and legal ethical breach.
She said she believed it could be “very probable” that a regulator could evaluate Foxx’s words concerning the Smollett prosecution. But Rich said regulators would also face a difficult task in making any ethical charges related to those statements stick.
Rich said she personally didn’t believe Foxx crossed the line between free speech and ethical breach.
In any case related to such charges, pitting regulators against a lawyer charged under Rule 8.2 over statements like Foxx’s, Rich said: “I’d rather be on the lawyer’s side.”