*1 (No. 34683 . re Benjamin Becker, Attorney, Respondent. M.
Opinion May 22, filed 1959. *2 Hershey, Klingriel, JJ., concurring. Bristow, amicus curiae. of Chicago, Leviton, Charles and Frank A. A. Sprecher, Peebles, Don Robert for all of Chicago, respondent. Karaba, delivered the of the court: Mr. House Justice of Bar The board Association managers Chicago the entire of a committee on a review report griev- upon under Rule as commissioners filed a re- ances, sitting found the wherein they guilty respondent unpro- port dismissed conduct, fessional of the committee’s 22 speci- of misconduct and recommended fications censure court. has filed to the Respondent exceptions report. out of arise charges respondent’s participation matters as an for attorney interests while private city Chicago. of alderman the position
occupying division interests, conflicting He accused representing division of based upon services not of fees for legal the public failure to represent or responsibility, services fidelity. with undivided misconduct involves respondent’s of the alleged
Much close attorney with Maurice Blonsley, relationship arose. the complaints friend, during period successful cam- assisted latter’s Blonsley respondent After election for alderman paign 1947. could three offices in his where constituents ward
opened take call him. care of their upon helped problems, referred amount law business large him. had and their differences political cordial became a can- terminated. relationship clerk in city didate Blons- December, 1954, whereupon ley information to a divulged relative Chicago newspaper to their Thereafter, several articles about re- relationship. *3 connection with spondent’s matters in- zoning appeared, cluding of photographic reproduction checks. Respondent requested the thereupon Bar Association investi- Chicago gate conduct, and a committee special of investigating the bar was The appointed. committee filed a complaint with the committee on grievances. Respondent as resigned a candidate the after he day was served with a copy complaint.
We think the best is to approach examine each of type practice which constitutes allegedly unethical conduct rather than consider the specifications in numerical order, since some specifications more allege than one infraction.
Amicus curiae contends that an as alderman, an elected member of a legislative body, represents interests conflicting when he accepts employment from private interests in cases before the courts where his is a municipality He party. makes a like assertion of conflict with to an respect alder- man’s appearance before administrative officers or bodies lawyer-member His theory the city. set up by it relationship fiduciary in stands body legislative is unethical interests of private any representation per se. fees, receive and did participated, allegedly
Respondent of Chicago city actions wherein declaratory three Company Baking XIX Ward count awas Under party. for a garage certain desirous using premises was classification. do under the so prevailing could not was one Nathanson recommendation respondent, Upon declared uncon- the restriction was counsel, employed was as to and Nathanson the garage property stitutional a fee of which was $4,500, paid paid XX Count involved a Accurate $1,300. zoning problem Threaded Inc. was Fasteners, approached after that he did not make a stating obtaining practice variations handling action rezoning, suggested the only was redress and recommended several attorneys, Nathanson. including retained company’s attorney Nathanson, declaratory suit successful and judgment Nathanson was a fee of paid $3,000, $1,000 paid respondent. Count XXII involved a successful de- claratory action judgment behalf of upon Village Lincoln Center wherein Shopping Blonsley was feea paid $2,000, of which respondent received at least $800.
We are of the opinion that there is unethical nothing ain lawyer-member aof legislative body in liti- appearing wherein his gation governmental unit is a even party, cases where acts of that body sought to held un- constitutional. The court has jurisdiction complete and its determination is made without reference to the actions or *4 desires of the legislative or body any individual member thereof. There is no Illinois to precedent the nor contrary, is such practice prohibited by the Canons of Canon Ethics. applies “to the promotion or defeat of legislative or other matters proposed or pending before the public body or statutes to ordinances member,” which able, cause otherwise would To hold their passage.
after bar our to members of legislative ethical distinguished in which the law in fields of cases before hesitate accepting said here we have What traditionally practiced. have dis- later comment propositions to subject upon or division of and a responsibility employment closure services. cases involved counts of the separate
Four complaint variations of the Chicago zoning of businesses procuring their ordinance. During period procurement, board was authorized to hear variations zoning appeals and to make recommendations zoning regulations, had the city council, deny power grant was the variation. It send notice board to practice the alderman of ward when appropriate applica- tion was filed. were referred Such recommendations council city to its and its building committee, actions variation matters were followed customarily council. The city was identical pattern practically : following specifications count covered Diebel Tool VII and Dye count X Company, related to Dandy Prod- Screw ucts Co., count XV concerned the business candy varia- of one Samuel Reis. I. was contacted, he tion recommended as an attorney help parties their variation requests, Blonsley on their appeared behalf and the variations were granted. each case re- was spondent accused of receiving portion Blonsley’s fee, but he denied been It having paid. was urged by Blonsley’s testimony unworthy be- lief. The commissioners found that Blonsley’s testimony was not believable, and held that where respondent denied Blonsley’s statements, such statements would not be con- sidered. They then dismissed of 22 specifications. By accepting the view of the commissioners, it thus appears *5 in fees found accepting was not guilty that respondent to above. last referred three counts VII, counts with respect The commissioners findings Canons had violated X that respondent were XV that re- found Dye) count VII (Diebel 49. assistance to obtain had forced Diebel virtually spondent X (Dandy in count Screw directly indirectly; him, had variation that their was Products) previously finding “reason- referred to and that Blonsley company been in a subse- inferred” that it must contact ably was led in that Reis matter; and count XV quent zoning in to secure he hire order to believe must and pay that were variation. The from their findings conclusions was as a office lawyer scrupu- public obligated it be inferred lously to avoid from which any action might he in a with office manner using inconsistent duty to the that his were inconsistent actions public, with his duty to with undivided represent fidelity. public
The use force, intimidation or coercion personal by such a officer is and a gain obviously unethical who lawyer such tactics is employs subject to severe dis- action. While there is a inference of ciplinary strong coercion thé we respondent, are of that the record does not establish it with sufficient clarity to sub- stantiate the charge.
When these three specifications of (1) stripped actual in the participation matter as a ánd lawyer, (2) shar- of fees, which ing was done by the com- findings missioners, coupled our that coercion was not finding all proved, left really is a lawyer-alderman recom- a favored mending lawyer friend. True, respondent may have hoped for reward through business and fees in other fields; fact, admitted that he worked with and re- ceived fees from Blonsley many other matters not con- nected city, but that alone, without other substan- It the charge. sustain will not corroborating proof, tial is sought advice knowledge of common matter true This is particularly daily. from an alderman received unrealistic expect It is as Chicago. such city in a large as to advice seeking on a constituent to turn his back him that his recommendations little doubt counsel. There is days specialization these biased, of counsel were daily are made by pro- recommendations in the professions, *6 undoubtedly men based ability, fessional partly upon like con- elements of friendship, reciprocity hope feel recom- have some We do not siderations bearing. a constituent aby lawyer-alderman mendation alone to merits action. disciplinary
The next a is a question whether lawyer-member as or at body may counsel co-counsel legislative appear a before hearings board of or similar tri- appeals, bunal, created by the he of which is legislative group are member. We he opinion may before practice officers, bodies and fact-finding hearing commissioners, under our since views may he as counsel in the appear where his courts is at municipality Decisions party. made such hearings usually subject to administrative review the by courts the record upon there made. It would be to inconsistent that a say lawyer-member a legislative could not body in a at which participate hearing record made, but could thereafter appear when the cause heard by courts on administrative This review. is sub- ject to an important He exception. should not as appear counsel where the matter is subject to review by legis- lative body of which is a member. “A officer public owes an undivided to duty the public whom he serves, and is not to permitted place himself in a position which will sub- him ject to duties conflicting or him to expose the tempta- tion of acting any manner other than in the best interests of the public.” (43 Am. 81, Public sec. Officers, 266.) Jur. are We of where lawyer does so appear an duty between interests conflict of there would obligation and the hand one his client on the advocate for other. unit on the to governmental the foregoing within situation involves a XVIII Count the Berteau-Lowell had Respondent represented exception. as coun- He appeared since or Works Plating 1940. 1939 court on two his law occasions and sel in the municipal the zon- before for variation firm then filed application authorized the board was At that time board of ing appeals. and make recommenda- to hear for variation applications had the city grant tions to the which council, power the variation. deny personally presented He case to and it relief. spoke the board recommended the' alderman from the wherein his client’s ward property was located and him that it was informed coming through It was unanimously city council, council. passed and he received a favor, fee respondent voting for his services. facts, Based upon foregoing $350 does deny, commissioners found that he had violated Canons con- representing interests, flicting failing represent undivided fidelity by taking employment involving *7 matter which he knew he would have to as an pass upon alderman. he
Respondent argues that had Berteau- represented before he Lowell became alderman long and should be per- mitted to continue. There no is merit to this argument. When a lawyer office accepts takes it public not only with its prestige emoluments, with its burdens and duties as well. The fact that he had this client represented prior his election not remove does the conflict. The. only way to the avoid conflict is to longer clients represent .no whose interests those oppose of that he represents. When he chose to become an alderman he became obligated represent city undivided fidelity. introduced considerable evidence to the
496 council city a variation by of
effect that approval accepted it awas generally formal that action, purely requirement, it a “rubber-stamp” fact that was purely The an conflict interest. there of therefore was no from free tempta should be swer that a actions lawyer’s interests where tion and in accepting employment suspicion inconsistent undertaking conflict. might impropriety intentions the fact duties is not only by gauged with which motives honest but also the suspicion unnecessary his acts It is be viewed may public. he be It is enough of confidence. betrayal actual guilty him that he leaves open himself which places position Gerold, Activi 448.) Ill. People (See v. charge. ties which lawyer legal profession tend bring into dis have held to be been disrepute grounds long Association v. ex Bar (People rel. Chicago action. ciplinary Meyerovitz, Serritella, re In 111.2d Ill. 356; 392.) our conflicted representation Berteau-Lowell with his duties as an alderman, tended to bring profession into disrepute.
Count XXI involved an Dunbrik appeal by Chicago Co. commissioner building to the board in which appeals acted as co-counsel Blons- As ley. we understand the. it, here differs from procedure that of variations in that recourse is to the courts rather than to the city council. This case, therefore, does fall within the prohibitory above noted, but comes exception within the category before appearances bodies or hearing commissions, which we have heretofore indicated per- missible. Count XXI does raise other alleged infractions which have the question division fees as the common denominator with count XIX (Ward Baking), XX (Accurate Threaded Fasteners) and XXII (Lincoln Village Shopping Center).
In each of the counts the foregoing commissioners found that respondent had violated Canon reads: “No *8 except is services proper fees division re- of service a division based upon lawyer, another the in following difficulty some have We sponsibility.” the specifica- a conclusion. such to leading up reasoning XIX counts under of Canon a violation found tions by “respondent, in each that made XX the statement declaratory the actively participated admission his own fee the paid.” received portion case and judgment in the same para- earlier findings negate These findings Canon. a violation of fee-splitting that there was graph XXI counts under to like charges evidence with The respect entirely satisfactory. XXII was not should be particularly is a officer A who lawyer Canon admonition to observe strictly careful 34. him as to may opportunities be such give His public position members of other business far beyond for referral of of his To fees without proportionate profession. split abe not only of service or would division responsibility essence very but would violate Canon, violation ethical usu- conduct and take on attributes akin to those There associated with the words ally unsavory “pay-off.” but few discredit ways which a could by lawyer bring feel not However, more we do quickly. upon profession under XXI and sustained counts XXII were charges evidence. record is The not so some clear with respect counts fourteen dismissed There board managers. is more than a suspicion respondent participated fees which he did more than a referral. make nothing same true of count There, VII. paid fee and he The latter paid respondent. $300 $150 admitted that amount but receiving denied that it referred Diebel We matter. do mean to be critical of the board of managers’ action Blons- refusing accept ley’s testimony where except corroborated, since he was discredited. thoroughly they were Undoubtedly, impressed, *9 as are we, with the and of the witnesses quantity quality testified to who for and honesty respondent’s reputation and the fact that there is no that he integrity, dispute pos- sesses a fine in the and reputation high standing community. we have found subject to be disciplinary Since no action, useful would be served in purpose detailing contained in the charges counts which were proofs if dismissed. we found the warranted, Even charges they would merely cumulative.
One other matter deserves comment. What we have heretofore said with to a approvingly lawyer-mem- respect ber of a legislative body before the courts and practicing ad- ministrative bodies should be subject to the restriction that he where is co-counsel disclosure of his public participation If is essential. he expects participate litigation share a fee, record should so show and the client should have such While knowledge fact. disclosure would make more no failure to representation ethical, disclose would create and foster temptation his suspicion. Furthermore, activities would then be subject bright light opinion.
It was that in several instances charged failed to of record as appear co-counsel, where shared in a fee. In at least one count (XX Accurate Threaded Fasteners) we believe the record bears out the that finding the client was not informed of in the participation case or the of the fee. sharing that Respondent argues lawyers often retained as co-counsel without the knowledge the client and that his is no different position from that of lawyers generally. We think this prohibition applies pecu- liarly to lawyer-members of legislative bodies because their responsibility to'the public. Since we have not here- tofore'had occasion to pass upon particular we point, will not for discipline failure to disclose employment in this case, but our view will serve for the guidance the bar in the future. XXII were XXI and counts that complains contends He the close proofs. added at
improperly considered by were therein the matters charged that to include chose not of inquiry, committee special them to include the failure and that them the complaint, the matters before bar to- “reopening” constitutes are not they further, It commissioners. argued, introduce new clear sufficiently specific The contention not within the complaint. matter original on sustained. XXI simply alleged cannot be Count received from check 30, 1948, respondent June fees in connection share of $450, representing board of the Chi to the zoning appeals appeal *10 count matter; Dunbrik XXII cago Company alleged on December received a check 10, 1948, a as division of fees in suit for $800, declaratory ordinance judgment invalid holding to the as applied property Village Lincoln Shopping The Center. are allegations sufficiently Moreover, clear. both checks were referred his own brief filed with the special committee, charges substantially uncon troverted in the evidence, and there is no offer of proof thereto. opposition Respondent was prejudiced by addition of the two A counts. is disciplinary proceeding anot lawsuit with formalities of nor can pleading, techni calities be invoked to defeat the where charges undisputed facts show conduct which is ethically re (In Ham wrong. ilton, Ill. In re 589; District Sanitary Attorneys, 388 Ill. 206.) The is academic point in any event, we since 351 have found no unethical conduct under either count.
So far as we are advised this court has not heretofore been called upon judge propriety practices such as those presented record, but the involved principles have been long firmly established. Any conduct a lawyer which necessarily tends to bring discredit upon pro- fession is an abuse of the privilege secured to him by his “It and the license. is vital to the of society well-being who are officials justice administration of that attorneys, of the court and should system, of our judicial part themselves, maintain the most care in conducting scrupulous manner should their duties such as will discharge secure and and confidence of preserve respect public.” ( re Clark, Ill.2d It is readily 314.) apparent In whether case such as this has been pre previously sented does not affect the fact that standards exist which the conduct re office lawyers may tested, (In District and that Sanitary Attorneys, Ill. 220,) under those standards certain conduct of here tofore out cannot be pointed condoned.
Insofar as the record shows, matters in question were handled and no harm was intended to competently public. addition, it is undisputed respondent’s both reputation, personally professionally, good. We with the agree commissioners that he was not guilty conduct disbarment or warranting but some suspension, his actions were such as tend to bring legal profession into The disrepute. recommendation of the commissioners appropriate respondent is,-accordingly, censured.
Respondent censured. Mr. concurring: Bristow, Justice report entire committee on grievances Bar Chicago Association, sitting commissioners of the. court, found that had been of un- guilty *11 professional conduct on twenty-two different specifications and recommended a suspension for two years. The board on a managers, thorough consideration of the record, dismissed of the 22 specifications, and as to the remain- ing eight recommended action in the disciplinary form of censure. Now, the majority finds in the nothing record that denotes a lack of but holds integrity be- that, cause of a of conduct course that was only mildly irregular, he should be censured. I am in altogether disagreement it is in reached the manner which that result but with what troubles me. has not adequately portrayed
The majority opinion as a and a lawyer respondent political eminence He DePaul in June, School leader. graduated Law after a to overcome many struggle hardships became associated disadvantages. His Peebles active Levinson, Becker, practice Swiren. him and valuable of law wide gave experi- group firm until his remained with that election ence. Respondent as alderman in the ward, Chicago, April, 1947, 40th became associated with Bernard whereupon Savin of law. practice written articles sub- many has on taxation and He jects of estate contributed an planning. entire in a two-volume set entitled chapter “Preparing Cases in Illinois” Illinois Trying State sponsored Bar Association. He executive director the DePaul University Institute on Taxes Federal and editor its pub- lished He has lectured the subject on of Fed- proceedings. eral taxes at the Post-Graduate at Lawyers Clinic given He University. was active in Chicago independent groups city council for their had Chicago, purpose of local His most improvement government. important service was evident as member of public Home Chicago Rule Commission, appointed Mayor to formu- Kennelly late recommendation for modernizing Chicago’s city gov- ernment. Harland executive Stockwell, secretary of Civic Federation of which is known as the Chicago, people’s watchdog government Illinois, testified: “I have dealt with hundreds of servants in public job think my and I amI of their good moral and judge intellectual integrity, and I at the put respondent very of men I have top known servants. He has among and above in- ability all, tellectual integrity, my opinion.”
At the time difficulties that these proceedings *12 502 to was on his unquestionably way greater respondent
posed, of these observations recognition. pertinence political subsequently. will appear now to the of the board of
Turning report managers as commissioners, the committee on where grievances to found not have been sustained the counts were this uniform “Blonsley’s malice, we have finding: evidence, refusal his refusal to his books testify fully, produce and his testimony, the records, impeachment reflected in the the record, behavior as Commis- general is not find that his testimony sioners proceeding the not estab- were that, therefore, charges acceptable; clear and as lished, required by law, convincing proof.” as what they shall the have to quote report say I reference to count which II, typical charges “On March dismissed. C. 1947, that were 27, Eugene filed an lawyer Piech, representing Joseph Jachimowski, variation for at a zoning property application 3000- in the Ward. testi- Avenue, Elston 40th Jachimowski 3008 fied that before Gurman, then that, alderman, Samuel advised him, Jachimowski, had after investigation satisfied that the community Gurman was would welcome a variation. After the had been such application granted consonant it therewith, and an ordinance passed appeared file an amendment to be so to have the varia- necessary in the name the lessee rather than that of tion appear testified that owner. following filing Jachimowski him and Blonsley of this amended application, telephoned said was favor of the application meeting if constituents of wanted to ward, Jachimowski use would have to since succeed, Blonsley, Mr. Gurman now He testified further that thereafter he was deceased. Blonsley fee, was application apprvoe'd by paid Board of the Council. Zoning Appeals passed by had never made contact with di- Jachimowski him the rectly, that he although Blonsley gave impression to malee and in position representative respondent’s Blonsley employing then wrote trouble. Jachimowslci 13, On May him as on co-counsel, May 9, 1947. there had him that advising wrote to *13 had that the to objection use, application been the proposed the matter would come been taken under that advisement, and that to the City Council, attention before respondent’s extended re- courtesies Blonsley by would appreciate any the variation. On spondent securing passage 17, June wrote letter Blonsley telling another 1947, respondent him that had been by although application approved no action had been in the Council and Board, taken that it was essential have of the quick ordinance, passage tenant would not the lease. proposed sign On 25th, June the ordinance was unanimously and passed respondent and voted. received for fees present Blonsley One Hundred on May 10, Dollars and balance of Four Hundred 1947, Dollars on May 12, testified that He he issued 1947. check to for One Hundred Twenty-five Dollars, dated May 12, 1947, and one Complainant’s 120, Exhibit to Becker and for One Hundred Savin Twenty-five dollars on the same date, at Complainant’s Exhibit respond- ent’s as request, respondent’s fee. portion Respondent denied that had to do anything with the matter or that the checks a fee He represented split. could testify what they were for that paid they had except to do nothing with the Piech transaction.” Then followed the ruling such was not charge sustained because of un- Blonsley’s reliability.
There is no toas of the dispute any facts foregoing per- to the Piech taining variation proceeding, the two except checks for each. admits that he received $125 and cashed these checks but that did not relate Piech variation fees. It is to note that in significant each cases respondent admitted receiving cashing checks but denied that they were related any toway He ex- feebly activities. vaguely
Blonsley’s been himby such checks must have received plained that he had loaned for monies previously repayment Blonsley. were-incredibly that the commissioners
It my It be that such a well story. may very naive believing malice, are the of hate and disclosures product Blonsley’s them untrue. In this necessarily does not render testi- documentary Blonsley’s is found support record is the this dispute considerable mony. importance Of docu- an examiner of Godown, questioned testimony He all for the examined ments who testified complainant. and examined checks given Blonsley the book entries made in connection with them “There are a said: the transaction. expert reflecting I feel that there had reasons would not why number fabrication here: Because the appearance been a various intensities arrangement, alignment, *14 of is in with these the exhibits on pages keeping writing normal carelessness with which day-to-day periodic in these uniformity lack the made, they entries are in connec- features that are found very frequently various There documents and book entries. with manufactured tion that lead factors taken me are numerous together entries that I have here: are expressed on in the normal course were made or about the dates from the as testimony business.” I shall quote expert’s of has heretofore been mentioned. it related to II which count of that I encountered a would instances, there, “I couple authenticity of the definitely favor being interpret book entries in that instance there are con- one two secutive checks on the same date made both payable a law firm, individual and to partnership, together entries same as two dated book previously aggregate think the amount of dissimilar amounts. I whole was $250 entries, which was made book couple up each.” is made two even payment payments $125 to an as to the witness entry Piech, Referring Joseph “There stated: is an amount received on the 10th of $100 the 12th and on and a $400, disbursement, apparently, on the 10th disbursement on the 12th of $50 $200, and in the these checks two checks represented by * * * for $125, exhibits issued on the 12th. if one were to back to fabricate these that would gO‘ pages, a rather elaborate it can be observed So procedure.” that there is very evidence that the two convincing $125 checks were for outlined given respondent purposes Blonsley. XXII,
Count which is a matter declaratory judgment to the pertaining Center, Lincoln Village Shopping presents some In behalf of interesting aspects. Lincoln Village Shopping Center, filed an for a varia- application tion board of which was denied. zoning appeals he filed a suit for a Later declaratory and a final judgment decree was entered aside the setting law as to the involved. The premises board of report managers recites: “Blonsley received a total fee of for $2,000 services in this matter. He testified that this fee was divided as follows: to Nathanson, who was then $250.00 head of the Zoning Department Coun- Corporation sel’s office, a check to cash. Blons- payable $250.00 testified ley that on this check (complaint’s 221) Exhibit * * * there are the initials Nathanson. identifying ‘M.J.N.’ Nathanson testified he never saw the check in life. $800.00 to respondent, one-half of being the approximate net fee of remaining $1600.00. admitted re- * * * this fee. ceiving (the balance remaining $150.00 after the to Nathanson, $800.00 $250.00 *15 $800.00 Blonsley)” accounted in the for, in report, this fashion: fee “filing summons $15; certified $3.50; ; copies ; $5; stenographer court reporter $15 $12.25 court reporter $t6,” making a total of which when $66.75, that has not been dis- from the balance
deducted $150, testified that on Decem- leaves tributed, Blonsley $83.25. the sum he 21, 1948, ber paid respondent $41.63 admitted one-half of check Respondent $83.25. it may seem, check but as claimed, this strange receiving that had made a of a loan he that it represented repayment the face of Yet board of Blonsley. managers —in items a check in an detailed of accounting, including those he testified believe when Becker, odd that say amount — the check for represented repayment $41.63 in without such loan, any why explanation payment unusual amount was made. checks Invariably such an Becker the same dates Blonsley bore about owners to Blonsley checks from property payment their Becker testified that zoning problems. processing were in small $10, $50, loans $15, $25, amounts — checks in were in much amounts and repayment larger at the time when had been Blonsley were paid half one services, significantly exactly represented the amount Blonsley. paid
Another area which was not respondent completely frank he him is when denies that cash Blonsley any gave The record contradicts this denial. payments. fees in
admitted the Mrs. Helen receiving split Jones matter. The fee June, and was paid $150 After small a few items Blons- deducting expense, 1949. Becker on or about but there ley paid 20, 1949, $66 June are no checks to fact there June, respondent 1949—in are none from until April 15, 1949, January 1950. if received a fee as he Therefore, says split did in he must have received it in cash. There case, are other instances when it did re- appears cash ceive but I will not payment, prolong the details.
I think it understanding would be for a helpful complete *16 from that verbatim I quote of respondent’s operations least one counts to at as managers’ board report them: sustained declaratory judgment Co. XIX, (A
“Count Baking Ward matter) not but involved,
“In was matter, Blonsley lawyer matter a in a cooperated zoning respondent been in who once had Nathanson, Maurice named J. of zoning office Chicago charge Counsel’s Corporation asso- testified that was McClure, Jr., matters. James J. Sutter, Owen, Mulroy with the law firm of ciated Hopkins, then the Ward Baking who was Wentz, representing use at that wished to the premises Co.; company Avenue for a Montrose garage; Building they had advised them that required variation Department the commercial zoning from designation, manufactur- and ‘we found as a matter practical it was purpose, ing to ascertain the alderman’s position,’ that important Council would ‘follow wishes of the City alderman in if he wanted it would area, and if approve, he did they would not McClure visited not, approve.’ respondent at 17, 1952, request on October respondent’s a letter sent to outlining problem respondent who then letter to the sent transmittal Ravenswood Improvement November Association. 24th, On McClure and Thomas a member of the law firm Mulroy, met representing Ward, who stated that he ‘personally could not such a variation’; that he as approve might agree lawyer variation should allowed ‘he had to live in the ward’.
“McClure further testified that respondent stated that he would indicate to the Corporation Counsel’s office that he felt that there was no real problem would not actively it unless he heard oppose constituents; and that re- stated that there was an spondent alternative method, a suit declare the law uncon- declaratory judgment question, stitutional inapplicable property that Nathanson handled matters like that very expeditiously. met on December McClure with Nathanson
“Thereafter, and Nathanson handled the case with McClure 15, 1952, in the matter. declaratory assisting judgment proceed- was first and had occurred suggested by ing McClure until he. denied then. Answer respondent’s that he told that Alderman McClure he would oppose *17 for variation. in his re- However, testimony application admitted that he said that he ‘would be of what- spondent he if he ever could’ did not have from the objections help and that he called and advised owners Nathanson property him of the expected employment. 6,
“On a in the decree August 1953, declaratory judg- ment suit entered in favor of the was Ward Com- Baking thereafter and Nathanson received fee of pany, $3500.00 from the Ward out he directly of which Baking Company Nathanson did tell the respondent paid $1300.00. firm that he was his fee with Hopkins sharing respondent. “The that had never been complaint charges respondent as co-counsel by Ward and that he rendered no employed in this services matter. however, testified Respondent, he had Nathanson, that worked discussions on examined the order, worked on a complaint property, that Nathanson written after opinion and, prepared, called Counsel entry order, Mortimer Corporation his assistant to as to whether the inquire or City would take an appeal.
“The Commissioners that the un facts of Count established that disputed respondent violated Canons of the clearly Canons of in in his that official alderman, capacity Ethics though he stated would variation in his Ward, oppose zoning nevertheless respondent did not hesitate to an recommend to forward a attorne)r carry action to declaratory judgment did respond same result. Not only in effect the accomplish declaratory pro judgment the alternative ent recommend but after matter, handle the to attorney and the cedure, a variation, respond McClure he would oppose informing in declar admission actively his own ent, by participated fee paid. case and received a atory portion judgment client, that the record Ward It would appear the case informed of Co., activity was not Baking matters in the fee. or his participation first and to It was duty owed his primary public. first these matters he was a officer and private It for to have second. was attorney improper interests. having give appearance conflicting XIX is therefore sustained.” Count To involvement respondent’s matter, paraphrase it that Becker was himself stultify appears unwilling before his council variation, going recommending recommend another disposed procedure namely, that his declaratory tribunal circum- judgment, might and in addition recommended vented, that he lawyer knew an to be able seaman re- area, admittedly ceived end $1,300 that he knew was accomplishing interests contrary constituents. conduct Such *18 does not that undivided represent fidelity that Becker as alderman owed his constituents.
It my is Becker’s in conduct fees splitting Blonsley with was indefensible. Becker’s decision that he could afford to in admit, these the fee- proceedings, was a serious splitting practice mistake. He was driven to defend his position by in such seeking refuge statements as “I relied upon the Blonsley“he was keeper my con- science “he meand tricked duped “he me in these pay- ments.” In the appraising morality con- respondent’s it duct, to me that his appears sin greatest lies in his failure to be candid in his completely testimony. It may very well be that Blonsley is great no as a man or as bargain a His of Becker invites considerable con- lawyer. betrayal am sure he the truth about the fee withal, I told tempt, The the board of with finding splitting respondent. they counts dismissed because should be managers is bewildering. believed Becker and disbelieved with of the majority I am not in the conclusion disagreement for censured, should opinion, simply these have been a ruinous penalty long proceedings — his and' hu- professional standing expensive damaging — fine As indicated family. earlier, miliating respond- ent was in his advancing rapidly political pursuits. He was a and a lawyer for splendid fighter courageous good in council. Chicago city government exposure a herein revealed sad in his life. makes No doubt chapter case as a will serve to others. warning Hershey Mr. in this joins concurring opinion. Justice Mr. also Klingbiel, concurring: Justice I concur the decision of I cannot court, While said in the all that is I agree accept opinion. conclusion that should be avoided private representation where the is subject to determination or review dispute it body which is a member. Of course lawyer is for a an administrative offi improper legislator, judge, a. cial, or other officer to himself in any a public place position In re where misuse of is public functions possible. (See Harriss, Ill. But it 290.) is also- improper not he lawyer, is also a officer, whether to under public duties take which misuse of professional functions In the usual form of possible. conflicting representation acts for two lawyer interests private professional But he may, capacity. equal impropriety, represent on one side interest on private ain other, matter which are adversely interested. A lawyer who is also a trustee or an executor cannot with propriety a claim represent trust against or the estate stands in a fiduciary even relationship, though latter *19 situation the same Precisely relationship. a lawyer-client not or a city legislator alderman sues when an is presented The behalf of private parties. on such, as sues State or the city attorney is the same time not at fact if his is irrelevant be, as the case may Attorney General, fiduciary unit is to the defending governmental relationship in nature. those shown
I would thus condemn conduct specifica- the city wherein was undertaken against tions litigation The that the court declare void its fact ordinance. is the no answer may to the impartial charge. is Such liti- case in suit another by lawyer any prosecuted against whom he It loyalties, also is gant represents. conflicting or is the deter- influence, which presence power in factor these con- mining situations. fear clusion would cause able members the bar to cases avoid in certain if fields of the law, justified, an for argument clarity the areas which outlining representation It ethically is no for con- proscribed. argument condoning duct which falls within the squarely meaning existing rules of ethics.
I do not mean the views have I say expressed lawyer-alderman should in all cases lawyer-legislator avoid representation of before adminis- private interests trative bodies, whose is to function, essentially, implement and complement legislation necessarily expressed general terms. In such cases the city or the State, such, is not sued as an adverse It party. has created the agency for question the very purpose affording continuation, in some aspects, legislative process, although adversary While setting. even here the involved partiality in private representation affords temptation a use of influence aor disregard the realities interest, public employment may warrant an application the canon to some depends extent upon circumstances of the particular case. The subject may not be entirely amen- *20 has Holmes for as fast Mr. rules, hard and to
able Justice the areas “shade into to another problem, with said respect Law, Common (The degrees.” each other by imperceptible measure of must be credited with some Lawyers 334.) p. if conduct is doubtful status, in of areas judgment ethical of thought proscrip- the letter but outside within subject it not censure. tions should me a variation of seems to realistic what From the court that because variations canons I would agree to determination in were subject question during period it was a member, which body by of him to handle such matters for private unprofessional hand I cannot accede to the other On applicants. that a may, legislator regardless proposition sweeping before ad- the nature of dispute, appear professionally unit governmental ministrative agencies repre- as a think that under no circum- sents I legislator; it for him to stances is proper engage litigation against his or as the case city State, may be. other area of my One deserves mention. disagreement The majority opinion places importance, apparently, upon disclosure” Whatever that may “public participation. in the entail it contributes a way hardly publicity, rational solution of the If the conduct present problem. se per not I can see no for reprehensible logical purpose to a requiring exposure, possible misrepresentation hardly matters position pass upon pro- ethics. event any fessional I doubt the need for this to add fuel to the court machineries for public exposure election; contested and as every for en- operate lightenment, “bright light well public opinion” may blind instead of provide illumination. on the other
If, hand, conduct constitutes an “abuse privilege practice” action penalty disciplinary not court, unwanted I cannot publicity. accept that an must attorney “of implication record” appear disclosure, informal either matters, formally these fee or undertake pro- can before he accept properly otherwise Compliance permissible. fessional representation isme, it seems to conduct, with standards of professional determination, for and judicial matter professional or sanction by decision public opinion. I in the decision to For the reasons concur expressed censure.
(No. 34947 . People ex A. vs. rel. Harry Haynes, Appellee, S. E.
Rosenstone, Appellant.
Opinion May 22, filed 1959.