Ettinger, In re

• Decision Date: 20 April 1989
• Docket Number: No. 67038,67038
• Citation: 538 N.E.2d 1152,128 Ill.2d 351,131 Ill.Dec. 596
• Parties: , 131 Ill.Dec. 596 In re Michael David ETTINGER, Attorney, Respondent.
• Court: Illinois Supreme Court

Page 1152

538 N.E.2d 1152

128 Ill.2d 351, 131 Ill.Dec. 596

In re Michael David ETTINGER, Attorney, Respondent.

No. 67038.

Supreme Court of Illinois.

April 20, 1989.

Jerome Larkin, Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.

Sam Adam, Chicago, for respondent.

Justice MILLER delivered the opinion of the court:

On July 24, 1986, the Administrator of the Attorney Registration and Disciplinary Commission (the Administrator) filed a one-count complaint charging the respondent, Michael David Ettinger, with professional misconduct based upon his involvement in a scheme to bribe a police officer. A panel of the Hearing Board found that the respondent had knowingly participated in the bribery of a police officer and recommended that he be suspended from the practice of law for one year. Both the Administrator and the respondent filed exceptions to the Hearing Board's report and recommendation. The Review Board concurred in the Hearing Board's findings of fact and conclusions of law, but recommended that the respondent be suspended for three years. The respondent filed exceptions with this court pursuant to Supreme Court Rule 753(e)(5) (107 Ill.2d R. 753(e)(5)).

The circumstances in this case date to 1977 and include litigation in the State and Federal courts. The respondent now assigns error to the Hearing Board in the admission of evidence and the delay by the Administrator in bringing charges against him. Respondent additionally challenges the sufficiency of the evidence and the sanction imposed. A review of the procedural history and facts underlying the case is therefore necessary.

Respondent was licensed to practice law in Illinois in November 1970. After admission to the bar, respondent began work as an assistant State's Attorney in Cook County. While employed as an assistant State's Attorney, respondent met John Gervasi, who was also an assistant State's Attorney in Cook County. During their tenure in the State's Attorney's office, respondent and Gervasi had occasion to meet in court, at seminars, and at social gatherings affiliated with their work. In November 1973, respondent left the State's Attorney's office and established a private practice in Oak Lawn, Illinois. The majority of respondent's private practice was concentrated in criminal law. Respondent remained in contact with Gervasi, who had also left the State's Attorney's office to enter private practice. The two men occasionally acted as co-counsel on cases and also referred work to each other.

In early November 1977, Gervasi contacted respondent by telephone. Gervasi informed respondent that he believed he was about to be appointed an associate judge in Cook County. Gervasi then spoke to respondent regarding a case Gervasi was working on. The defendant in the case, Charles Soteras, a close personal friend of Gervasi, had been charged with automobile theft. Gervasi indicated that the State had a strong case against Soteras. Gervasi additionally told respondent that he had spoken with the arresting officer, Daniel Furay. Gervasi and Furay had discussed the payment of money to Furay, for which Furay was to persuade the complaining witness in the Soteras case to drop the charges. Gervasi asked respondent to appear in court on behalf of Soteras. Although respondent refused to appear, he did agree to contact Furay on behalf of Gervasi. Respondent was already acquainted with Furay from previous cases he had worked on.

On Thursday, November 3, 1977, at 11:05 a.m., Furay contacted the respondent by telephone. Furay indicated he was calling from a pay phone. Respondent informed Furay that the Soteras case was his matter, but that he could not talk at that time. The respondent attempted to arrange a meeting with Furay without success. Respondent then asked Furay whether he could control the complaining witness in the Soteras case. Furay indicated that it might be a problem. The two men discussed alternative ways to dispose of the case and the payment of money to Furay for his cooperation. Respondent told Furay he would remain in contact with him.

Over the next 36 hours the respondent made five telephone calls to Furay. During these conversations, respondent and Furay discussed the payment of money to Furay. In return for the money Furay was to persuade the complaining witness in the Soteras case to drop the charges. Furay did not disclose to respondent that at the time of the conversation Furay was acting in concert with the State's Attorney's office and that all of the telephone calls were being recorded.

On February 23, 1978, an indictment was filed in the circuit court of Cook County charging respondent, Gervasi, and Soteras with 11 counts of bribery and conspiracy to commit bribery. Respondent, Gervasi, and Soteras subsequently moved to suppress evidence of all of the recorded telephone conversations. Defendants argued that the conversations were recorded in violation of the Illinois eavesdropping statute. On March 27, 1979, the circuit judge granted the motion to suppress the evidence, finding that the telephone conversations were recorded in violation of the Illinois eavesdropping laws. On appeal, this court affirmed the order of the circuit judge suppressing the evidence. (People v. Gervasi (1982), 89 Ill.2d 522, 61 Ill.Dec. 515, 434 N.E.2d 1112.) We agreed that the transcripts of the telephone conversations were obtained in violation of the eavesdropping statute and were properly suppressed. We also found that the testimony of Furay was admissible and remanded the matter to the circuit court for further proceedings.

On September 14, 1982, the case was nol-prossed on motion of the State's Attorney. On that same date, respondent was indicted by a Federal grand jury in a seven-count indictment charging him with conspiracy, fraud and racketeering. (United States v. Gervasi (N.D.Ill.1983), 562 F.Supp. 632.) The Federal indictment was based upon the same facts alleged in the State case. The Federal case proceeded to trial and on June 15, 1983, a jury found respondent not guilty. A mistrial was declared as to Gervasi. Gervasi was subsequently retried on the same charges and found guilty.

On July 29, 1983, some six weeks after respondent's acquittal in Federal court, the respondent was notified that his conduct in connection with the bribery scheme was being investigated by the Administrator. On May 1, 1984, respondent filed a motion for leave to file a petition for writ of man damus with this court challenging the Administrator's use of his Federal court testimony in connection with the disciplinary investigation. On May 22, 1984, this court denied respondent's motion for leave to file a petition for writ of mandamus.

On August 27, 1984, respondent filed a verified complaint in the circuit court of Cook County seeking to enjoin the Administrator from using evidence in his disciplinary hearing which was obtained in violation of the Illinois eavesdropping laws. On October 16, 1984, the circuit judge granted the Administrator's motion to dismiss the complaint. Respondent filed a notice of appeal from the circuit court order. On January 7, 1986, the appellate court issued its opinion in the matter affirming the dismissal of the complaint. On March 4, 1986, respondent filed a petition for leave to appeal with this court. On June 3, 1986, respondent's petition was denied.

On July 24, 1986, the Administrator filed a one-count complaint charging respondent with conduct in violation of Rule 1-102(a)(3) (engaging in illegal conduct involving moral turpitude); Rule 1-102(a)(4) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); Rule 1-102(a)(5) (engaging in conduct which is prejudicial to the administration of justice); Rule 7-102(a)(5) (knowingly making a false statement of law or fact); Rule 7-102(a)(6) (participating in the creation or preservation of evidence when he knows or when it is obvious that the evidence is false); and Rule 7-102(a)(7) (counseling or assisting his client in conduct that the lawyer knows to be illegal or fraudulent). 107 Ill.2d Rules 1-102(a)(3), (a)(4), (a)(5), 7-102(a)(5), (a)(6), (a)(7).

On October 31, 1986, respondent filed a motion to dismiss the complaint asserting that evidence of his alleged misconduct was procured in violation of the Illinois eavesdropping laws and that the complaint was barred by laches. Respondent further asserted that his acquittal in the Federal district court required dismissal of the complaint. On November 21, 1986, the Hearing Board entered an order denying respondent's motion to dismiss.

Hearing on the complaint filed by the Administrator commenced on December 19, 1986. The hearing was then continued to and concluded on March 6, 1987. Over respondent's objections, the Administrator initially offered 10 exhibits into evidence. The exhibits consisted of the transcripts of nine monitored telephone conversations between Furay and respondent or Furay and Gervasi. The tenth exhibit was a transcript of respondent's testimony in his trial before the Federal district court.

The Administrator next called respondent as an adverse witness. Respondent testified that he was then 41 years old, had graduated from the John Marshall Law School in 1970, and was admitted to practice that same year. Respondent worked as an assistant State's Attorney for Cook County for approximately the next three years. During this time, respondent became acquainted with John Gervasi, a fellow assistant State's Attorney.

Respondent admitted that while he was employed as an assistant State's Attorney he had occasion to read and prosecute bribery cases. After entering private practice, respondent defended approximately five individuals charged with bribery. Due to the nature of his work, respondent was often in contact with arresting police officers. It was the practice of police officers to arrange for the appearance of witnesses at...