Jordan, In re
| Decision Date | 18 November 1993 |
| Docket Number | No. 74929,74929 |
| Citation | 157 Ill.2d 266,623 N.E.2d 1372,191 Ill.Dec. 486 |
| Parties | , 191 Ill.Dec. 486 In re David R. JORDAN, Attorney, Respondent. |
| Court | Illinois Supreme Court |
Robert J. Verrando, Chicago, for Atty. Registration & Disciplinary Com'n.
Warren Lupel, Katz, Randall & Weinberg, Chicago, for respondent.
Peter H. Lousberg, Dennis A. Rendleman and Mary T. McDermott, Springfield, for Amicus Curiae Illinois State Bar Assn.
Supreme Court Rule 772 permits an attorney to be placed on probationary status when the lawyer has committed an act of professional misconduct occasioned by a disability such as substance abuse or mental illness. (134 Ill.2d R. 772.) In the present case, we are asked to decide whether the respondent, an attorney who suffers from no proven disability, should nevertheless receive probation for conduct that violated the Code of Professional Responsibility (107 Ill.2d R. 1--101 et seq. (now replaced by the Rules of Professional Conduct, 134 Ill.2d R. 1.1 et seq. (effective August 1, 1990))). Respondent suggests that probationary status is appropriate in the case at bar because his misconduct was an isolated incident in a long and otherwise untarnished legal career, did not involve moral turpitude or corrupt motives, and caused harm to no one. Respondent also notes that his legal practice is comprised of substantial pro bono activities and serves a predominantly underrepresented group that often cannot afford legal protection. We agree that, under the circumstances present in this case, a period of probation is an appropriate sanction for the respondent's misconduct.
In 1984, Dean Pittenger (Pittenger) was injured while he was driving an automobile in Cook County. He was issued traffic citations with respect to the accident. Pittenger received medical treatment from Ingalls Memorial Hospital (Ingalls Hospital) for his injuries. Thereafter, Pittenger retained Donald Nolan, a Chicago attorney, to represent him for any personal injury award he might recover from the automobile accident.
Pittenger asked Nolan to recommend an attorney to represent him with regard to the traffic citations he had been issued for the automobile accident. Nolan suggested that Pittenger contact David R. Jordan (respondent). Respondent was admitted to the Illinois bar in 1976 and has had a sole-attorney practice in a west neighborhood of the City of Chicago since 1978. Respondent agreed to represent Pittenger with respect to the alleged traffic violations. Later respondent also agreed to represent Pittenger in filing personal bankruptcy. Pittenger did not compensate respondent at the time of this representation, because he had no funds to pay respondent. It was respondent's expectation that he would be paid if Pittenger recovered any monetary award from the personal injury suit involving the automobile accident.
In August 1988, Nolan asked respondent about the status of a lien that had been filed by Ingalls Hospital for the costs of treatment Pittenger received following the automobile accident. Respondent told Nolan that the lien had been discharged when Pittenger had been adjudged bankrupt. A few months later, Pittenger reached a settlement with one of the defendants in the personal injury suit, in the sum of $15,000. Nolan told respondent that the attorney representing the settling defendants in the personal injury suit believed the Ingalls Hospital lien remained valid despite Pittenger's bankruptcy. Respondent telephoned Susan Bauer, who was defense counsel in the personal injury matter. Bauer told respondent that it would be necessary to obtain a release from Ingalls Hospital before Pittenger's settlement funds could be disbursed. Respondent agreed to obtain a lien release from the Hospital.
Respondent then drafted a letter to a corporate officer at Ingalls Hospital and a release of lien form. Respondent never sent the documents to the Hospital for execution, however. Respondent signed the lien release form himself, using the name of the corporate officer at Ingalls Hospital. Respondent then caused the document to be delivered to Bauer, the defense counsel in Pittenger's personal injury suit.
Bauer contacted Ingalls Hospital and discovered that the corporate officer had never signed the lien release form. When confronted with this disclosure, respondent explained to Bauer that he had sent an "employee" to the Hospital and that this employee must have been "overzealous" in obtaining the signature on the form.
Bauer advised respondent that she believed the matter should be referred to the Attorney Registration and Disciplinary Commission (ARDC) for investigation. Respondent sent a letter to the ARDC and repeated his earlier explanation that an "employee" had been "overzealous" in forging the signature. In a later explanation to the ARDC, respondent advised that he could not divulge what had transpired because the information was subject to the "attorney-client privilege." Still later, in a sworn statement to the Administrator, respondent said that he had asked his wife to have the release signed and that she signed the document herself, without his knowledge. Thereafter, respondent's counsel advised the Administrator that respondent's sworn statements were false.
At the disciplinary hearing, respondent explained that he had executed the release of lien form "as a stupid, short-sighted and improper short-cut to get Pittenger his money quicker because he was in such desperate financial straits." Respondent characterized his actions as "foolish[ ]" and stated that he did not undertake his acts in order to receive payment from Pittenger for the legal services respondent had provided to Pittenger. Respondent also noted that Ingalls Hospital received the amount due from the proceeds of Pittenger's settlement of the personal injury suit. Respondent stated that Pittenger had not compensated respondent for his legal services.
As mitigating evidence in his own behalf, respondent testified at the hearing regarding his substantial pro bono activities in the neighborhood where his office is located, which is economically disadvantaged and plagued by crime. Respondent testified that he has provided pro bono legal services for the Austin Christian Law Center of approximately 15 hours per month. His legal representation has included domestic relations, domestic violence, guardianships, and related matters. Respondent stated that he has also assisted the Cook County Legal Assistance Foundation/Suburban Volunteer Attorneys for approximately eight hours per month and has also provided volunteer help to the Kenwood Oakland Community Organization. Robert L. Lucas, administrator of the Kenwood Organization, testified on respondent's behalf and stated that respondent's efforts have "literally saved" a number of buildings in the north Kenwood-Oakland area. Lucas also testified that respondent has loaned the Kenwood Organization approximately $20,000 over a period of several years and that these sums were repaid shortly before the respondent's disciplinary hearing.
Following the hearing, the Hearing Board found that respondent's misconduct violated our professional ethics rules and suggested that respondent receive a three-year probation. The Review Board agreed with this recommendation. The Administrator has filed exceptions to the Review Board's recommendation and asks this court to impose a period of suspension for respondent's unethical acts.
Respondent acknowledges that his signature upon the release of lien, as well as his subsequent efforts to conceal his actions, violated our professional ethics rules. (See 107 Ill.2d R. 1--102(a)(4) (), R. 771 ().) The central issue in the present case is the severity of discipline to be imposed for respondent's violations of Illinois' professional ethics rules.
Our rules set forth various forms of discipline for attorney misconduct, including disbarment, suspension, and censure. (134 Ill.2d R. 771.) Respondent urges that suspension of his right to practice law should be stayed during a period of probation. In 1983, this court adopted the rule that formally acknowledged its power to stay a respondent's suspension pending a term of probation. (See 94 Ill.2d R. 772.) Rule 772 provides that probation may be imposed in conjunction with a period of suspension that is stayed while the term of probation is carried out. (134 Ill.2d R. 772(a).) The rule states that such probation may be appropriate where the respondent lawyer has proven the following four elements:
"(1) [the attorney] can perform legal services and the continued practice of law will not cause the courts or profession to fall into disrepute;
(2) [the attorney] is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;
(3) [the attorney] has a disability which is temporary or minor and does not require treatment and transfer to inactive status; and
(4) [the attorney] is not guilty of acts warranting disbarment." 134 Ill.2d R. 772(a).
Respondent acknowledges that Rule 772 was intended to allow probation for an attorney whose misconduct was occasioned by a disability such as substance abuse or mental illness. Respondent also concedes that he failed to produce evidence of such disability to explain his violations of our professional ethics rules in the case at bar. Respondent contends that Rule 772 probation should be expanded to permit its imposition where no disability has been proven. Both the Review and Hearing Board have made a similar recommendation to this court in the instant cause.
This court may, in its inherent powers, impose a probationary term for respondent's misconduct, irrespective of whether respondent's acts were...
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Chandler, In re
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