In the Matterof: HTINMYAT WINDeLong and Glendal French, two correctional officers at Pontiac...

FeldmanWasser

1307 S. Seventh St.

Post Office Box 2418

Springfield, IL 62705217/544-3403

FILEDBEFORE THE HEARING BOARD OF THE JAN - 8 ZOIfiILLINOIS ATTORNEY REGISTRATION

AND DISCIPLINARY COMMISSION flflY R£© &DISC COMMCHICAGO

In the Matter of: HTIN MYAT WIN

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.

ANSWER: Respondent admits the allegations in this paragraph.

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 of Illinois, 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

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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

of the 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, 2014.


6. 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 of the

October 15, 2014 order to Robison was false because he had not sent a copy of the order

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to Robison or otherwise notified her or Pfister about the contents of the order, or the

hearing on November 12, 2014.


8. At the time Respondent made the statement to Judge McDade set forth

m paragraph six, above, Respondent knew that his statement was false.

ANSWER: 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 requiring the attention ofdefendants, witnesses, or other parties

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; andif he refuses to comply with an order of mine in the future, I will have himarrested 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 becausethe information that you intended to get should have been in my hands fivedays 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, inviolation 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

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forwarded the October 15, 2014 order to Robison, and thereafter failing tocorrect that false statement;

ANSWER: 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



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, inviolation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010),by conduct including falsely representing to Judge McDade that he hadforwarded the October 15, 2014 order to Robison;

ANSWER: 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



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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 inrepresenting a client, in violation ofRule 1.3 ofthe Illinois Rules ofProfessionalConduct (2010), by conduct including failing to forward the October 15, 2014order to Robison or Pfister, or inform Robison or Pfister of the order or theNovember 12, 2014 hearing.


COUNT II

(Misrepresentation and Creation of a False Letter)

11. The administrator re-alleges and incorporates paragraphs 1 through 9 above.

ANSWER: 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 13-1496 [sic]

Dear Ms. Robison:

This Court has ordered Warden Pfister to appear at a hearing in the matter ofMinter v. DeLong scheduled for November 12, 2014 at 2:00 p.m. However, inlieu of personal appearance, Warder Pfister may produce a copy of relevant

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grievances from Inmate Minter's master file five days prior to the hearing alongwith an affidavit. Please refer to the Order enclosed with this letter. Please

note that the Order sets the hearing at10:00 a.m. but the Court later reset the hearing for 2:00p.m.

Thank you for your cooperation. If you have any question regarding thismatter, please contact me at (217) 782-9014.

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 of the November 12,2014 hearing in 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, 2014.


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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 of the 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 of the letter he sent to Robison on October 22,

2014.

ANSWER: 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

of the letter he sent to Robison on October 22, 2014, was false because Respondent did

not create the letter until the evening of November 12, 2014.


19. 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, 2014.


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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

22. 2014 on Pfister's desk. Pfister's secretary later found the letter and placed it in

Robison's mailbox.

ANSWER: 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, 2014.

ANSWER: 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 inviolation 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

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Robison on October 22, 2014; and by surreptitiously placing the letter onPfister's desk without discussing the letter with him.

ANSWER: 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,

2014. 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 thirdperson 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 createdand sent the letter to Robison on October 22, 2014.


COUNT III

(False Affidavit)

24. The Administrator re-alleges and incorporates paragraphs 1 through 22 above.


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.


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26. In their affidavits, both Pfister and Robison attested to the fact that they were

unaware of Judge McDade's October 15, 2014 order in case number 13 CV 1497, until

after the hearing was concluded on November 12, 2014.


27. In Respondent's affidavit, he stated as follows:

4. On October 22, 2014, I prepared a letter addressed to the litigationcoordinator at Pontiac Correctional Center and enclosed the above referenced

Order and subsequent text order entered on September 17, 2014 reflecting achange in the time of the Pavey Hearing from 10:00 a.m. to 2:00 p.m. Thelitigation coordinator is a staff member within an IDOC facility who, amongother things, schedules staff members for court appearances.

5. It is my belief that on October 22, 2014, I placed the letter in a tray forthe outgoing mail and that the letter was mailed. However, I do not have a clearrecollection of exactly what steps I took to mail the letter.

6. My secretary was not present on October 22, 2014. My usual practicewhen my secretary is not present is to prepare letter and place them with theoutgoing mail myself.

7. I assumed that I provided the Warden with sufficient notice. I now realizethat I should have followed up with the litigation coordinator at PontiacCorrectional Center and the Warden to determine whether the letter was

received by Warden Pfister and ensure that he would comply with its terms. Isincerely 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

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because Respondent did not create the letter until November 12, 2014, after the

hearing in case 13 CV 1497.


29. 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 of the 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 2014.


31. 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


a. knowingly making a false statement of fact or law to a tribunal inviolation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010) byconduct including filing an affidavit in which he falsely stated he prepared andmailed a letter to Robison on October 22, 2014, and that he provided notice ofthe hearing to Pfister;

b. failing to correct a false statement ofmaterial fact previously made to thetribunal by the lawyer, in violation of Rule 3.3(a)(1) of the Illinois Rules ofProfessional Conduct (2010) by conduct including his failure to correct his

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statements to the court on November 12, 2014, as set forth in paragraph six,above.

c. conduct involving dishonesty, fraud, deceit or misrepresentation inviolation 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 preparedand mailed a letter to Robison on October 22, 2014 and that he provided noticeof the hearing to Pfister; and

d. conduct prejudicial to the administration of justice in violation of Rule8.4(d) of the Illinois Rules of Professional Conduct (2010), by conduct includingfiling 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.


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 of the report to Respondent

and requested that he respond to the report within 14 days.


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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, 2014. 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 letterinforming Warden Pfister of the Court's Order to the prison litigationcoordinator...

. . .After the Pavey hearing on November 12, 2014, I went home to eat andreturned 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 litigationcoordinator and 1 copy of the 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 andfound a copy of the letter titled "(letter draft)" in a wordpad documents on boththe zip drive and laptop. On October 22,1 likely transferred a copy of the letterto my office computer as I usually do when I work from home, and printed it formailing. On November 12,1 specifically recall that I also scanned a copy of theletter 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 of the 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

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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, 2015.


39. 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 of the letter to

his office computer using the zip drive in October 2014.


41. 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, 2015.


42. 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.


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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


a. in connection with a disciplinary matter, knowingly making a falsestatement of material fact in violation of Rule 8.1(a) of the Illinois Rules ofProfessional Conduct (2010), by conduct including: making false statements inhis letter to the ARDC; falsely stating under oath that he created the letter toRobison in October 2014; falsely stated that he transferred the letter to a zipdrive in October 2014; and falsely stated that he transferred the letter to hisoffice computer using the zip drive in November 2014.

b. conduct involving dishonesty, fraud, deceit, or misrepresentation inviolation of Rule 8.4(c) of the Illinois Rules of Professional Conduct(2010), by conduct including making false statements in his letter to theARDC; falsely stating under oath that he created the letter to Robison inOctober 2014; falsely stated that he transferred the letter to a zip drive in

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October 2014; and falsely stated that he transferred the letter to his officecomputer using the zip drive in November 2014.


WHEREFORE, the Respondent respectfully requests that this matter be assigned to

a panel of the Hearing Board, that a hearing be 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 of the State of Illinois.

Pursuant to ARDC Rule 231(b) Respondent DISCLOSURE PURSUANT TO

ARDC RULE 231





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Pursuant to ARDC Rule 231(b) DISCLOSURE PURSUANT TO ARDC RULE

231







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

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In the Matterof: HTINMYAT WINDeLong and Glendal French, two correctional officers at Pontiac...

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