*1 (No. 93178. TIMPONE, Attorney, THOMAS LEONARD
Respondent. January
Opinion filed *2 FITZGERALD, J., part. took no GARMAN,J., joined by THOMAS, J., dissenting.
Steven Splitt, R. of Chicago, for the Administrator of Attorney Registration Disciplinary and Commission. Michael Lee Tinaglia, of Chicago, respondent. JUSTICE FREEMAN delivered opinion court:
Respondent, Leonard Thomas Timpone, was charged with various violations of the Rules of Professional (Rules) (134 Conduct Ill. 2d R. 1.1 et seq.) a three- count complaint filed the Administrator of the At torney Registration and Disciplinary Commission (ARDC). The Hearing Board found that the Administra (1) tor established that respondent: entered into a busi ness transaction with a client making without proper (2) disclosures; converted and commingled funds belong (3) ing client; to another engaged in conduct involv ing fraud, dishonesty, deceit or misrepresentation. The Hearing Board recommended disbarment as a sanction. rejected findings Board affirmed those The Review matter for a lesser sanction. respondent’s plea exceptions to on this court now before Review Board. conclusions of the findings and
I. BACKGROUND
law since
practice
licensed to
has been
years.
him for three
See
suspended
we
in the
charges
Timpone,
Administrator fraud, deceit, or involving dishonesty, misrepre conduct (134 (2) 8.4(a)(4)); 2d R. entered into a sentation *3 making transaction with a client without business and client have lawyer disclosures where the proper lawyer client conflicting expects interests and the judgment his on the client’s behalf professiоnal exercise (134 (3) in conduct 1.8); engaged Ill. 2d R. and “which bring justice to defeat the administration of or tends into legal profession disrepute” or the the courts (134 771). Ill. 2d R. Court Rule 771 Supreme violation of in a dissolution of represented Rzewnicki through 1983 and as- marriage proceeding from 1980 in 1987 him in the of his marital residence sisted sale legal no further work Respondent performed and he defended Rzewnicki for Rzewnicki until when code violation. charge building a DUI and a on after the sale of two months Approximately $35,000 residence, respondent loaned marital Rzewnicki proceeds from the of the sale. The loan was never repaid, and in January Rzewnicki judg- obtained a default against ment respondent. judgment remains unsatis- fied.
Rzewnicki claimed that he loaned the money to respondent because he respondent trusted as “his lawyer,” and because he told he good would recеive a However, return. in a pretrial deposition, Rzewnicki respondent described services for him in performed December of by testifying that he was an “ex-client” nothing “[he] had at that binding time.”
Respondent argued Hearing before the Board that he and Rzewnicki did an attorney-client not have relation- ship at the time in question, agree- and that the loan ment arose out of their friendship rather than the relationship attorney Therefore, although and client. relationship Rzewnicki, debtor-creditor existed with of the loan receipt any did not violate of the provisions the Rules. The Hearing disagreed. Board in on the Imming,
Relying reasoning Hearing Board found that respondent and Rzewnicki had an attorney-client at the relationship time of the loan. The Board Hearing also found that violated his fiduciary duty by, to his client (1) other among things: failing to advise Rzewnicki there were limits on the types attorney transactions (2) client; could enter into failing to advise him independent loan; to consult making counsel before (3) providing no collateral for the loan and giving promissory evidencing Rzewnicki no note the loan or the years interest rate until five after the transaction. challenge Review Board noted that did not findings of the factual Board and af any findings. firmed all of those
B. The Purnell Transactions *4 II III complaint Counts and of the Administrator’s of Fulton Purnell respondent’s representation involve ARDC that regarding and made to the statements II, alleged In count the Administrator representation. (2) (1) funds; converted his client’s respondent: from his own property separate failed to hold his client’s (134 (3) 1.15(a)); promptly and failed to deliver Ill. 2d R. (134 1.15(b)). III, a client Ill. 2d R. In count funds to (1) made a state alleged respondent: Administrator in by lawyer ment of material fact known to be false (134 Ill. 2d lawyer disciplinary connection with a mаtter (2) 8.1(a)(1)); in engage R. induced another lawyer conduct knows that the conduct will when (134 violate the Rules of Professional Conduct R. 8.4(a)(4)). III, counts II and the Adminis Regarding both trator in alleged respondent engaged conduct involv ing fraud, dishonesty, deceit, or in misrepresentation, 8.4(a)(4), engaged violation Rule also conduct “which tends to defeat the justice administration of or to bring the courts or the legal profession disrepute” into violation of Supreme Court Rule 771. The Board’s on are findings allegations challenged these by respondent. engaged respondent
Fulton Purnell him represent in a proceeding judgment-by-confession set aside a Hickman. against by taken him Leo He was referred to friend, Jordan, respondent by mutual John who had represented been in the past by respondent. considerable,
According to he respondent, expended attempt time and effort to sеt aside the Hickman judgment-by-confession. September, $23,448.94 a check for to Purnell received made out deposited settlement of the Hickman case. This check was in September client fees account on endorsed, Pay check was “Fulton Purnell Timpone.” handwriting Leonard was identified associate, Golub, Biers, Gail as that of Gina respondent’s secretary.
Respondent did not have a time trust account deposited he Purnell’s check. He maintained a client fees operating account and an account at the same bank money would transferred from the fees to the account operating operat- account as checks were written on the firm ing Respondent’s account. did not have a client trust account until 1999. he, Jordan,
Respondent testified that and Purnell three-way early had a in the fall telephone conversation 1998, the timе of a Purnell to by visit Jordan’s to him According respondent, home. Purnell authorized sign his name to the settlement check and deduct his Jordan, fee. This account confirmed denied by but by three-way Purnell. Purnell denied having ever conversation with and Jordan and telephone respondent his name to the authorizing respondent sign denied check and deduct his fees. 1998, from September Purnell received a letter $10,742.19. The letter
respondent enclosing a check for $23,448.94 in stated that he had received the Hickman $12,000 matter and had deducted the balance of almost in attorney fees. $10,742.19
Before Purnell check from cashed in the balance client fees ac- respondent, respondent’s $10,000 count fell under on at least three occasions. own using denied Purnell’s funds for his purposes. early received letter respondent November ARDC, allegations requesting response
from the handling Purnell to the of the Hickman by raised as direction, wrote check. At Golub settlement behalf, stating, “As counsel on his to the Administrator’s funds, entirety for Mr. Purnell’s settlement account.” On remains our client trust settlement direction, Golub 6, 1999, also at January counsel, “As advising, the Administrator’s again wrote to however, office, your earlier letter to I stated remains check settlement] entirety [Hickman client fees account.” our Board found Hearing testimony,
Based on funds, Purnell’s had converted respondent Board, Clayter, In re citing complaint. in the charged occurs that a conversion noted on of a client holding an account funds behalf anytime client, if the drop even drops below the sums due Board inadvertently. happens the balance gave that he never testimony found Purnell’s also check authority negotiate settlement given than the version of events more credible similarly The Board found respondent. *6 from own separate
failed to hold of a client his property 1.15(a). property in violation of Rule Hearing respondent The Board likewise found that 1.15(b) by failing promptly violated Rule deliver Purnell funds that Purnell entitled to receive. The was Board found that he not entitled to deduct those proceeds funds from the Hickman settlement without a of he agreement, regardless fee whether was still owed completed agreement, fees for the work. Without fraud, in respondent engaged involving had conduct deceit, dishonesty, misrepresentation or and conduct justice “which tends to defeat the administration or legal disrepute.” the courts or the into bring profession that, Hearing 134 Ill. 2d R. The Board also noted 771. in was censured 1994 for failure to although respondent return, yet a tax he had not filed return timely file 1998. III, Board found that Hearing
As to count had been because the two letters charged provеd conduct in at the response inquiry, prepared to the ARDC direc- tion contained false approval respondent, and with by him He did not have a statements known to be false. account, client trust as in letter, stated the first and the “entirety” of Purnell’s settlement check did not remain in account, his in stated the second letter. challenge did not any findings these and in exceptions conclusions to the Hearing Board’s were, recommendations. The findings af- accordingly, firmed the Review Board. The findings Boards’ as to allegations in counts II and III are likewise not chal- lenged this court.
C. Evidence in Aggravation Mitigation Hearing Board noted that had been disciplined prior on two occasions. suspended This court him for three years 1993 for misconduct including conversion and commingling funds, failing client maintain complete funds, neglecting records of client cli cases, court, ent hiding assets from the аnd misrepresent In re ing a matter Timpone, to the ARDC. 157 Ill. 2d 1994, he timely was censured for failure to file 1988. In re Tim tax returns years through (March 1994). pone, Levin, on M.R. 9862 Relying 541-42 Board Hearing considered the prior similarities between length current misconduct and the of time between prior and current acts. Board also considered in aggravation the Rzewnicki, fact that never repaid the loan to despite the fact that he significant earned income years between the loan in 1988 and his *7 Smith, on Relying the Hearing Board found lack of candor and remorse to be an factor. The Board noted aggravating throughout disciplinary hearing, that the course of the respondent justified and minimized his actions rather accepting responsibility than for them. mitigation, that he respondent engaged testified
community people service work and that he took cases for had that he his He also stated рay fees. who could failing document his lesson” from “learned that at the testified Purnell. Golub transactions with firm had hearing, respondent’s disciplinary time of the pro 10 to “unofficial” bono case and pro one “official” rates working for reduced bono the firm was cases where representa- people in order low-income provide Hearing The Board cases. tion in domestic relations and testimony essentially self-serving found to be this to warrant consideration insufficient substantial Hearing Board recommended mitigation. evidence in The disbarment. the Board, respondent challenged the Review
Before the ground on the that disbarment recommendation overemphasized prior discipline. Hearing Board rejected observing that the argument, Review Board and, in in this case type proved misconduct is serious factors, any or aggravating mitigating absence оf ranging lengthy likely would warrant sanction from suspension to The Review concluded disbarment. Board timing misconduct, occurring of the on present lack of prior suspension, heels of remorse, candor or and his continued tax violations despite prior discipline lengthy suspen- indicate that sion not induce himself. would rehabilitate Therefore, findings the Review Board affirmed the the Hearing conclusions of Board and recommended disbarment. court, argues
Before transaction not be considered because Rzewnicki should time did not exist at the attorney-client relationship He also that a argues lengthy loan. would the Purnell appropriate sanction for transaction.
II. ANALYSIS reports our review controlling rules and the recommendations both the Board *8 380
Review Board are well established. The Administrator bears the burden of proving allegations contained within the complaint by clear and convincing evidence. 753(c)(6). 758(b); 137 Ill. 2d R. 166 Ill. 2d R. Moreover, the findings of by fact made the Hearing Board are to be treated virtually the same as the findings of any initial Parker, fact. In re (1992). trier of 222, 149 Ill. 2d 233 Deference is to be accorded to the factual findings of the Hearing Board because the Hearing Board is a posi tion to observe the demeanor, witnesses’ judge their cred ibility, and resolve conflicting testimony. In re Spak, 188 (1999). 53, Ill. 2d 66 Accordingly, this court generally will not disturb the Board’s factual findings unless are they against weight manifest re Ushi of the evidence. (1987). jima, 51, 119 Ill. 2d 56-57 not, are however, We by bound the disciplinary recommendations of either the Hearing Board or the Review Board because those recom mendations are advisory and the ultimate responsibility for imposing discipline rests with this court. In re Eck berg, 192 Howard, In re (2000); Ill. 2d 188 Ill. 2d (1999). 423, 434
A. Count I: Improper Business Transaction Respondent submits that the conclusion of the Hear Board, ing i.e., that Board, affirmed the Reviewing an attorney-client relationship existed at the time of the loans, against was weight manifest of the evidence. *9 a section entitled Review Board must include to the of the and containing party the contentions “Argument,” therefor, points argued and warns that not the reasons Board, respon the Review are waived. his brief before Hearing that had essentially dent contended the Board prior discipline argued and overemphasized respondent’s disbarment, than would be the suspension, that a rather Administrator, the appropriate According sanction. no argument that the specific brief contained Hearing finding Board erred in that an attorney-client and relationship respondent existed between Rzewnicki. did, Review Board Respondent’s brief before the however, following contain the contentions: fаcts, following evidentiary the as emphasize
“Thus we reported by hearing Board: Though represented had Richard
1. Leonard Rzewnicki sold, and marital was he did not before after his home in represent him the home sold late 1988. when was any represent pending 2. Leonard did Rzewnicki him legal money, matter Rzewnicki loaned which when derived from the sale of the home.” that argued before the Review Board ex-client at the time Rzewnicki described himself gap that there a made, pointed the loan was and out was years respondent completed of over four between time representation 1988 and his post-decree work building on and code violation cases Rzewnicki the DUI Thus, although characterized as precisely 1992-93. reversal, relied on it clear point is Hearing analysis Board’s conclusion disputed during attorney-client the loan occurred relation- ship.
It is wеll established the rule of waiver on parties limitation and not on reviewing courts. Welch Johnson, v. 147 Ill. 2d To reach just result, this court may override considerations of waiver Welch, point and consider a not raised below. at presented by 48. Under the circumstances the record case, apply this we decline to waiver and will consider argument its on merits.
Turning to argument, Hearing the merits Board found that any was not performing legal services for Rzewnicki the exact time the loan took place. However, transaction court has estab that, attorney’s lished while an relation to a client gener ally on completion ceases satisfaction matter attorney conduct, employed special circum arrangements may stances or show a continuation of the Imming, relationship.
Board found that such special circumstances existed here. The Reviеw Board affirmed this finding. *10 special
The circumstances found by Hearing the Board (1) in this case were as stated emphati- follows: Rzewnicki cally and without hesitation that he respondent considered (2) friend; lawyer, to be his not loan his the transaction place, upon took the of request respondent, within weeks of of respondent’s completion post-decree work on a mat- (3) funds; ter generated that the Rzewnicki testified respondent generated by that the funds loaned to were respondent the work on performed his behalf. Hearing found the relationship Board of Rzew-
nicki
respondent
analogous
eight
to be
to the
credi-
Imming.
case,
tors and
in
attorney disciplined
the
respondent
disciplined
fiduciary
the
was
for breach of his
eight
were,
the
duties to
investors who
at
time of the
investments,
Imming,
or
clients.
either clients
former
Imming
Hear
held that the
court
Ill. 2d at 253.
reasonably
ing
that in the
have сoncluded
Board could
question were
investors,
funds in
the
case
four
legal
product
that was concluded
work
the
legal
as
induce
rendered
to
the
services
so closein time to
transac
business
client to believe
the
attorney-client
the
relation
a continuation of
tions were
Imming,
ship.
other
the case of the
While believe present Imming, we facts the case and the facts the op- compel not a conclusion do believe those differences by Hearing posite further to that made the Board. We testimony acknowledge that Rzewnicki’s sworn credibility deposition. However, determina- odds with his Hearing say that tions rest the Board. We cannot with findings by Hearing against made the Board were weight affirm the manifest of the evidеnce. We therefore findings respect Board to made the Rzewnicki transactions. Appropriate
B. Sanction challenge previously noted, As not does allegations findings factual in counts boards’ appropri II issue of the and III. Wetherefore turn Supreme discipline this case. Court ate be attorneys types discipline may 771 addresses Rule subjected The sanc to in R. 771. Illinois. range severest, disbarment, most from the tions reprimand. lenient, See Ill. 2d R. 771.
Respondent argues suspension, disbarment, Although appropriate for misconduct. is the sanction agree appropriate case, we that disbarment is disagree justified that mere under the we *11 facts.
384
This court has described disbarment as “the utter destruction of attorney’s life, professional his charac ter and his livelihood and therefore a court should use In re disbarment moderation.” Yamaguchi, 118 Ill. 2d (1987). 417, 428-29
Initially, we note that
this court
impоsed
has
lesser
than
sanction
disbarment
involving
cases
transactions
similar
those
case
In Imming,
before us.
earlier, a two-year
discussed
suspension
imposed
was
improper business
Imming,
transactions
clients.
131 Ill. 2d at
Similarly,
two-year suspension
was
Rosin,
in In
imposed
for similar
misconduct
118 Ill. 2d
re Joyce,
In
365
In
(1989),
32
we
imposed
likewise
a two-year suspension for commingling
and conversion of
client funds.
In
earlier
matter,
disciplinary
we
a three-year
for similar
involving
misconduct
six different
clients.
Timpone,
issue in this case
likely warrants
sanction
from
ranging
a lengthy suspension to disbarment. Of these cases cited
decision,
the Review Board in its written
we find
distinguishable
those where
disbarment
ordered.
cases,
aggravation
each of those
certain
existed which is
Feldman,
In re
notably
absent
in the
See
case
bar.
89
(1982)
(ordering
Ill. 2d 7
disbarment
for intentional
misconduct,
converting a
including
client’s funds then
wrongfully signing another
client’s name on checks to
Stillo,
In re
conversion);
cover
up
first
Finally, we compelled points feel to address several *13 raised in The failing dissent. dissent accuses us of to sanction the at misconduct issue this case consistently with the sanctions imposed other cases involving similar misconduct. The dissent also criticizes us fail ing to take into account With recidivism. respect to the involving misconduct, cases similar In re Stillo distinguish cases, dissent states that we two Feldman, and In re justices whereas the dissenting that meaningful believe no distinction exists between Stillo, those cases and the respect case bar. With to ag dissent states that it is “difficult to discern what gravating factor was present ‘notably [there] is except absent’ for Stillo’s perhaps, accepting [here] settlement offer without prior authorization from his cli (Garman, J., ent.” Ill. dissenting, joined 2d at 392-93 J.). Thomas, Accepting settlement offer without cli ent lapse consent is a serious ethical and would be charged further to the aggravation misconduct was here. We believe that absence such misconduct from Stillo. With makes distinguishable here this case Feldman, respect the dissent fails to note that at least forgeries Fortunately, nine were also at issue there. check similar, does not rise here, although the misconduct disagree that “there respectfully that level. We therefore Stillo, to be made between meaningful no distinction is Feldman, and the same sanction— present and the case imposed.” 208 393-94 disbarment —should be J.). Thomas, (Garman, J., joined by Discipline dissenting, facts, on their and while judged cases must be consistent, case to case should be discipline imposed from do factual differences that take into account the we must view, the differ In our factual exist from case case. compel and the case at bar ences between these two cases need not the conclusion that the here discipline similar. misconduct, involving As for the other cases similar in In re Rosin suspension we note that ordered was here, 42 two-year for a ordered period. suspension months, nearly long duration. same twice Joyce, for two-year can where another be said alone, suspension imposed. Clearly, standing not, misconduct at issue here does in normal circum- However, stances, warrant case is disbarment. disciplinary normal has had action before, correctly against taken him as the dissent notes. Our to add “until further order of court” decision to the belies the dissent’s belief that language to take into recidi- we have failed account have considered the and have decided vism. We recidivism time only period suspend respondent, *14 in similar nearly length double in that had been cases, until further order of court. but also suspend our decision to
The dissent takes issue with
of time and until further
respondent
specified period
court,
that the sanction does not
intimating
order of the
protect
to
to
give
responsibility
attention
our
“sufficient
misconduct or to
public
the
from
habitual
(Garman, J., joined by dissenting, Thomas, The dis sent suggests sanction, that preferred its disbarment, would accomplish goals. those
As noted earlier in this opinion, Supreme Court Rule 771 lists the various of discipline forms are court’s A disposal. popular misconception regarding disbarment in this state is that a disbarred will lawyer never be allowed to practice again. law Illinois This is Supreme true. Court Rule provides *** attorney “[a]n suspended who has been disbarred or
until further may order of the court peti file his verified tion with the clerk seeking of the court reinstated to attorneys the roll of practice admitted to law this State.” Ill. 2d R. 767. Thus, attorneys who arе disbarred seek may reinstate ment just as are suspended those who until further order of In cases, court. both the disciplined attorney must seek a court order before he she or will be allowed to practice. In the case attorney, of disbarred he or she years must wait until five after the date of disbarment before seeking reinstatement. 2d R. 767. the case of the he or suspended attorney, may she seek reinstatement until the period of has passed. Critically, both forms of share a discipline common i.e., characteristic, in order to practice again, the disciplined attorney must first seek an of order this court to do so. light foregoing, accept it is difficult position discipline impose upon
dissent’s we somehow fails to “protect public from protect habitual misconduct or integrity profession.” public is more no protected under the type discipline the dissent would impose upon than the sanction that have we Likewise, chosen impose today. integrity profession protected no less under our sanction. The only practical difference between the two forms of
389 position, respondent the dissent’s is that under discipline approxi for reinstatement ineligible to seek be would the fact ours. Given than under mately year longer one allows until this court will not practice is, view, As so, negligible. in our to do this difference him goal cases] [in “our such acknowledges, itself the dissent Howard, 188 Ill. 2d attorney.” the punish is to is a form noted that disbarment previously haveWe moderation. The sanc should be used in discipline of recognition of that fact reflects our impose today tion we goals attorney of remaining discipline faithful to the while the years. that this court has over developed
III. CONCLUSION Timpone suspended Thomas Respondent Leonard law 42 months and until the practice from the of 26, 2001, the court, further of effective March order suspension pursuant Supreme date his interim Rule 774. Court
Respondent suspended. no in the consid- part JUSTICE FITZGERALD took eration or of this decision case. GARMAN, dissenting:
JUSTICE that, given I the the deference agree majority with Hearing the finder that must be afforded the Board as (In 53, (1999)), 188 our Spak, of fact re 66 (In Im regarding case law similar misconduct re prior (1989)), ming, findings 131 Ill. 2d Board must be affirmed. however, majority’s
I decision disagree, with reject Hearing Board, the recommendations Board, and the Review Administrator are, course, purely disbarred. These recommendations advisory. responsibility This court has the ultimate attorney Chandler, 161 Ill. 2d imposing discipline. (1994). so, doing 472-73 we strive to achieve predictability by imposing and fairness sanctions consis tent with those for similar misconduct. In re Howard, Nevertheless, we ap proаch each understanding goal case that “our is not to punish attorney protect but rather *16 public incompetent from or unscrupulous to attorneys, maintain the integrity of the and to profession, protect the reproach.” Howard, justice administration from 188 Ill. 2d at In my opinion, 434. majority has given sufficient attention to our to responsibility protect the public from habitual or misconduct to protect integrity of the profession. majority
Although the in cites cases which similar (208 misconduct has not resulted in disbarment at Ill. 2d 384), and in repeat cases which offenders have not been (208 2d 385), disbarred at I do find these cases persuasive because this been disciplined has just on not one but two He prior occasions. was suspended for three years in 1993 for conversion commingling funds, of client failing complete to maintain records of funds, client neglecting cases, hiding assets from the court, and making misrepresentations to the He ARDC. in 1994 was censured for failure to file tax returns five consecutive 208 Ill. 2d at years. majority, 378. The however, give great weight does not prior aggravation. Rather, major misconduct as a factor in ity require proof would or corrupt motives moral turpitude, misconduct, rather than mere habitual before imposing the severe sanction of disbarment. 208 Ill. 2d at
Similar Misconduct
Imming
The majority
two-year
*17
not
an
Imming. Respondent
the facts in
does
have
record; he did
an attitude of
display
unblemished
not
and
cooperation
disciplinary hearing;
or remorse
by
he has not
from misconduct
sufficiently
been
deterred
a
three-year suspension.
prior
also
to the
majority
points
two-year
Rosin,
(1987), for
in In re
imposed In respondent’s. Ill. 2d 384. misconduct similar Rosin, with both “replete aggravating the record was 387), (Rosin, 118 2d at mitigating circumstances” case, aggravating there are circum present while in the mitigation, In stances, mitigating no circumstances. but conduct, he did no benefit from his not Rosin received prior his client, defraud his and he had no intentionally contrast, in did action. tory disciplinary Respondent, by failing securing his misconduct profit from repay retaining loan and by funds that should have been to a promptly Further, disbursed client. he has twice subjected professional discipline. aggravation, been In uncharged Administrator cited conduct of Rosin’s. Rosin, case, 118 Ill. 2d at In present failure to returns, file recent tax even a previous after conduct, censure for the same is uncharged conduct the boards and ag the Administrator considered gravating circumstance. Joyce,
In re 133 Ill. 2d in which a two-year suspension was commingling and conversion (208 of client 384), funds Ill. 2d at unpersua likewise Joyce, although sive. attorney contin deny ued to he any wrongdoing, had been practicing years almost 20 with no disciplinаry record. majority distinguishes two cases cited in that,
Review Board
its written decision on the
basis
case,
aggravation
notably
each
“certain
existed which is
In re
absent” in the present case.
Stillo is, thus, virtually on all fours with the present Stillo, except case unlike did respondеnt, repay *18 It improper aggravating loan. is difficult to discern what “notably present absent” that is Stillo factor was accepting except, perhaps, present Stillo’s case prior cli from his authorization offer without settlement object to amount client, however, did ent. The wronged by Stillo’s conversion She was the settlement. proceeds. that conversion This court concluded involving moral “an act to one’s own use is client funds mitigating turpitude, and, circum in the absence of *** attorney’s gross oath, stances, calling is a violation of attorney’s Stillo, 68 Ill. 2d for the disbarment.” at 54. Feldman,
Later,
Ill. 2d 7
this court
in In re
attorney who converted client
of an
ordered disbarment
wrongdoing by signing
compounded
and then
funds
funds so that
client’s name on checks to obtain
another
up
It is the
the earlier conversion.
he could cover
by the
misconduct, as evidenced
intentional nature of his
cover-up,
majority apparently
attempted
finds
justify
aggravating
disbarment.
factor
sufficient
Feldman,
However,
this court noted
2d at 11. In
Feldman
appropriate, given
first
that this was the
tion would be
professional
charged
instance in
he had been
which
Feldman,
2d at 13. As
court ac
misconduct.
wrong
curately
however,
observed,
“the
committed does
Rather,
an isolated incident.
constitute
clearly
pattern which
tends
has manifested a
behavior
bring
legal profession
disrepute.” Feldman,
into
present
also
in the
case has
394 Stillo, Feldman, be made between present case аnd the same imposed. sanction —disbarment—should be
Recidivism
of prior
While
lack
is often
a
discipline
seen as
(see
Imming, 131 Ill. 2d
Joyce,
mitigating
239;
factor
133
Rosin,
16;
365),
Ill. 2d
2d
history
118 Ill.
a
prior
of
(see
may
a
discipline
be viewed as
in aggravation
factor
Imming,
Howard on the timing basis of the various offenses. The misconduct present issue in count I of the complaint prior occurred to the earlier disciplin- ary Thus, actions. it I conceivable, suppose, intervening disciplinary actions had an such effect on respondent he determined engage never to in such facts, again. conduct however, do support such optimistic Although view. solicited loan from prior Rzewnicki of his either two earlier disciplinary actions, he did not repay that loan even after expired his and he again earning suf- ficient funds to repay debt. Rzewnicki obtained a judgment against default January and, still, respondent repay made no effort whatsoever the loan. The misconduct II issue count complaint occurred in as did false statements ARDC, made by respondent subject to the are the which of count III.
Previous disciplinary apparent actions had no effect Indeed, on respondent. the Hearing Board noted that he justify actions, tended to and minimize his rather than accept however, responsibility Respondent, them. told *21 the Board that he had “learned his lesson” from his failure to document his transaction with Purnell. This statement should be skepticism viewed with since did learn his regarding lesson complete previous maintenance of records even after a (1993). In re Timpone, Ill. 2d suspension. 157 178 I the reasoning persuasive. find of the Review Board timing of the misconduct at issue demonstrates suspension the earlier had no effect on respondent’s
397 suspension three-year in 1996 and ended conduct. This early mishandling again as 1998. client funds he was although respondent Similarly, censured 1994 timely his return, he had not filed a tax failure to file hearing the Hear- time his before 1998 return of weigh ing in favor and remorse His lack of candor Board. Board, thus, concluded Review of severe sanction. respon- suspension lengthy not alter would that even dent’s conduct. Turpitude
Corrupt or Motives Moral resрondent’s repeated are taken offenses Even when majority consideration, to disbar is reluctant into corrupt attorney or of evidence motives the absence upon turpitude. Howard, are 188 The cases relied moral (“where corrupt and moral at 441 motives Ill. 2d clearly proper punishment turpitude shown, are disbarment”), Chap re than and In is rather (“ (1978) proper ‘Suspension a man, Ill. 501 is 494, 69 2d turpi corrupt punishment motive and moral “where clearly ’ ”), Taylor, quoting In 66 tude are not shown” (1977), quoting 69, Ahern, Ill. 2d 567, In re 23 Ill. 2d 571 74 hand, there are numerous cases
On the other equated funds has conversion client which court corruption. e.g., Himmel, See, In re (1988) (“It is, funds is conversion of client clear that turpitude”) (citing involving In re indeed, moral conduct Stillo, Levin, 118 Ill. 2d 54). certainly
Although respondent’s less is conduct attorney blameworthy sets out than that of an who deliberately clients, it not the result defraud single yielding to inadvertence, or a instance mere temptation, pressures personal inexperience, or related or family to health. He has demonstrated matters or be trusted to conform more a decade that he cannot than *22 his conduct to the Rules of Professional Conduct. His recidivism is the evidence of corruption.
Conclusion Disbarment penalty is a severe should used In re Yamaguchi, only in cases serious misconduct. (1987) 428-29 at (declining disbar torney who aided another in the practice unauthorized imposing law and six-month recommended where respondent history profes Review Board had no discipline, profit sional did not or attempt profit from misconduct, and neither harmed nor intended anyone). Respondent’s harm pattern of misconduct serious, repeated, duty and remorseless. It is this court’s protect the public from such conduct. should be disbarred. joins
JUSTICE THOMAS dissent.
(No. 94823. Appеl- ILLINOIS, THE PEOPLE OF THE STATE OF Appellee. STROUD, v. lant, BENNIE Opinion January filed notes the Hearing Board expressly stated that “no violation attorney disciplinary rules would be at issue here if respondent entered into a busi ness transaction with Rzewnicki based upon Rzewnicki’s personal friendship with respondent rather than the attorney-client Thus, relationship.” if the Hearing Board’s determination that an attorney-client relation ship existed at the time of the loan against transaction is the manifest weight evidence, the Rule violations I alleged count of the complaint were not proved. See Smith, In re Administrator, Attorney Registration citing 302(f)(5), initially Rule asserts Commission Disciplinary concerning existence argument since attorney-client has been waived relationship anof Board. Rule before the Review expressly argued it 341(e)(7) (177 302(f)(5) Supreme Court Rule is similar 341(e)(7)), appellant’s brief providing Ill 2d R.
Notes
notes
imposed when the
attorney engaged
transactions
similar
the loan
issue
Count I. 208
Ill. 2d at
384. The
and Review Boards recom-
Imming, while
two-year suspension
mended
Imming, unlike
disbarment.
recommended
Administrator
“had
case,
previously
present
in the
131 Ill.
Imming,
26 years.”
record for
unblemished
“degree
punishment
noted that
261. This court
upon
is based
disciplinary proceeding
in a
record,
evidence,
respondent’s past
evaluation
and the best
disciplinary proceeding,
attitude at the
Further,
2d at 260.
society.”
Imming,
interests
uniformity in impos
endeavor
achieve
although “we
***
own
each case on its
we also consider
ing discipline,
end, this court
notes
Blank,
reliance on In re
Administrator’s
534
but does not attempt
distinguish
that case.
208 Ill.
at
Instead,
2d
384-85.
the majority relies on
Howard,
Ill.
188
2d 423.