Loss, In re

• Decision Date: 17 August 1987
• Docket Number: No. MR,MR
• Citation: 119 Ill.2d 186,116 Ill.Dec. 160,518 N.E.2d 981
• Parties: , 116 Ill.Dec. 160 In re Edward A. LOSS III, Petitioner. 3972.
• Court: Illinois Supreme Court

Page 981

518 N.E.2d 981

119 Ill.2d 186, 116 Ill.Dec. 160

In re Edward A. LOSS III, Petitioner.

No. MR 3972.

Supreme Court of Illinois.

Aug. 17, 1987.

William J. Haddad, Chicago, for petitioner.

John A. Holtaway, Attorney Registration and Disciplinary Com'n, Chicago, Senior Counsel for Adm'r.

Justice GOLDENHERSH delivered the opinion of the court:

On November 21, 1984, petitioner, Edward A. Loss III, submitted to the State Board of Law Examiners (Board) his application for admission to the bar of Illinois. An inquiry panel of the Committee on Character and Fitness voted to recommend that petitioner not be certified to the Board for admission to the bar. Pursuant to Rule 4.4 of the committee's rules of procedure, petitioner's application was referred to a hearing panel. After hearing testimony, the panel voted to certify to the Board that petitioner was fit to be admitted to the bar. Subseqeuntly, the full committee considered and approved petitioner's application, and upon receipt of certification (87 Ill.2d R. 708(d)), the Board recommended to the court that petitioner be admitted. In an order entered on June 4, 1986, stating that "upon review of the extraordinary circumstances brought out at the hearing before the Character and Fitness Committee" it was unable to say that petitioner had satisfactorily established that he was of good moral character, the court granted petitioner leave to file a petition for admission addressing the question of character and fitness. The Administrator of the Attorney Registration and Disciplinary Commission was directed to file a response, and the parties have filed briefs and argued orally.

Petitioner contends that this court has delegated to the committee the authority to determine whether an applicant has established that he is of good character and fit for admission to the bar. He argues that our decisions have consistently held that the court will not reverse the committee's finding (In re Ascher (1980), 81 Ill.2d 485, 44 Ill.Dec. 95, 411 N.E.2d 1; In re Frank (1920), 293 Ill. 263, 127 N.E. 640) unless there has been an abuse of discretion. He argues, too, that under Supreme Court Rule 708(c) (87 Ill.2d R. 708(c)) certification by the committee entitles him to admission. Finally, he contends that to deny his admission to the bar would deny him due process.

The Administrator contends that the court has the inherent jurisdiction to review the recommendation of the committee and should deny petitioner's application for the reason that his record shows him to be unfit for admission to the bar of Illinois.

The record shows that petitioner was born in 1947 and that, from the early 1960's until approximately 1980, he was involved in juvenile delinquencies, criminal activity, and drug and alcohol addiction. While a student at high school, petitioner was suspended on approximately 23 occasions, and on his first job was discharged for stealing money from vending machines. He was charged with robbery and, as an alternative to conviction, was given an opportunity to enter military service. He enlisted in the Marine Corps. While in the Marine Corps, he was absent without leave for a period of 71 days and ultimately was given an undesirable discharge. Petitioner was also arrested and convicted on charges of disorderly conduct (for stealing money), selling marijuana, and possession of heroin, cocaine and marijuana. The record is not clear as to the number of convictions. He used various aliases. In 1975, petitioner was arrested for possession of marijuana, selling heroin, and for theft from a gasoline station.

In December 1980, petitioner submitted an application for admission to the DePaul University College of Law. He appears to have been less than candid in his application and failed to reveal convictions for disorderly conduct and theft. The application contains other answers which appear to be less than accurate. In contrast to his application for admission to law school, his application for admission to the bar candidly reveals facts and details about his background, including arrests and convictions not previously noted. During his law school years he was an excellent student, started a business by means of which he supported his family, and aided and befriended many of his fellow students.

At the hearing, a United States district judge testified that for two semesters petitioner had worked with him in his extern program, that his work was excellent, and that he believed petitioner to be an individual of great integrity. He further testified that, knowing of petitioner's experience with drugs and alcohol, his arrests, and his undesirable discharge from the Marines, he believed petitioner to be of good character. Two professors at the law school attended by petitioner testified that he had been completely rehabilitated, and they believed him presently to be of good moral character. They recommended his admission to the bar. An employment counselor for the Safer Foundation testified in petitioner's behalf. A number of petitioner's friends and fellow students testified in his behalf, and several of his classmates expressed gratitude for help petitioner had given them in courses with which they had difficulty at law school.

We consider first petitioner's contention that the court has delegated to the committee its power to determine whether an applicant is of good character and fit to practice law. Simply stated, it is petitioner's position that the court has provided by rule that the matter is to be determined by the committee and has further provided therein that, upon certification by the committee, an applicant is "entitled to admission" (87 Ill.2d R. 708(c)) and that there is no provision in the rule for review by the court of a decision favorable to an applicant. He argues further that the rule has the force of law and that he had the right to rely upon the provision of the rule that upon certification by the committee he would be admitted.

This court is vested with the inherent power to regulate admission to the bar. (In re Application of Day (1899), 181 Ill. 73, 54 N.E. 646.) This power carries with it the concomitant duty to protect the public from dishonesty and incompetency on the part of members of the bar. (People ex rel. Chicago Bar Association v. Goodman (1937), 366 Ill. 346, 349-50, 8 N.E.2d 941.) The exercise of the power and the discharge of the duty require that the final judgment concerning admission of an applicant rest with this court. The determination by the committee concerning the character and fitness of the applicant, although entitled to weight, is advisory, and neither binds this court nor limits its authority to take action. In re Mitan (1979), 75 Ill.2d 118, 25 Ill.Dec. 622, 387 N.E.2d 278.

Petitioner asks hypothetically, assuming that the court is to review the committee's findings, in what manner is it to obtain pertinent information. The short answer is that the court may initiate such review, sua sponte, or upon the basis of information regardless of its source. It may inquire into events subsequent to the certification or require additional information concerning events which occurred prior to the hearing before the committee. Rule 708(a) provides that the members of the Board are ex officio members of the committee. Although the Historical and Practice Notes contain no explanation for the inclusion of this provision, it would appear that the court wished the Board to be aware of all proceedings before the committee in order that the court might be fully advised concerning those proceedings.

Petitioner argues, with justification, that a denial of admission without further procedures following certification would constitute a denial of due process. It should be noted that here, the court, sua sponte, provided an opportunity for petitioner to appear and persuade the court that the record before the committee did, indeed, support the conclusion that he had been fully rehabilitated and was fit to be admitted to the practice of law.

We turn to petitioner's contention that, absent arbitrary action by the committee, our prior decisions preclude review by this court. The court has not previously considered a standard of review of a finding that an applicant be certified; the cases reviewed have involved denials of certification. (See, e.g., In re Frank (1920), 293 Ill. 263, 127 N.E. 640; In re Latimer (1957), 11 Ill.2d 327, 143 N.E.2d 20; In re Ascher (1980), 81 Ill.2d 485, 44 Ill.Dec. 95, 411 N.E.2d 1.) Review in those cases required that we respect the grant to the committee of discretion in certification (In re Frank (1920), 293 Ill. 263, 127 N.E. 640) and also protect an applicant's right to due process and to be free from arbitrary action by the committee. See Schware v. Board of Bar Examiners (1957), 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.

Different concerns are present here, and a different standard of review applies. A review of a grant of certification involves the court's duty to protect the people of Illinois against incompetency and dishonesty on the part of members of the bar. (People ex rel. Chicago Bar Association v. Goodman (1937), 366 Ill. 346, 349-50, 8 N.E.2d 941.) "A license granted by this court to practice is a guaranty that, as far as this court is advised, the person holding such license is a fit person * * *." (In re Rosenberg (1953), 413 Ill. 567, 576, 110 N.E.2d 186.) In order to provide such guaranty the court must determine that the record shows by clear and convincing evidence that petitioner has been rehabilitated and is fit to practice law. In re Kuta (1981), 86 Ill.2d 154, 157, 56 Ill.Dec. 56, 427 N.E.2d 136.

We consider next petitioner's contention that under Supreme Court Rule 708(c), having been certified by the committee, he is entitled to admission to the bar. A rule, like a statute, must be construed to avoid an absurd or unconstitutional result. Were we to construe Rule 708(c) in...