Topper, In re

• Decision Date: 22 March 1990
• Docket Number: No. 66770,66770
• Parties: , 142 Ill.Dec. 792 In re Russell J. TOPPER, Attorney, Respondent.
• Court: Illinois Supreme Court

Page 306

553 N.E.2d 306

135 Ill.2d 331, 142 Ill.Dec. 792

In re Russell J. TOPPER, Attorney, Respondent.

No. 66770.

Supreme Court of Illinois.

March 22, 1990.

James J. Grogan, Chicago, for Administrator of the Attorney Registration and Disciplinary Commission.

Thomas P. Sullivan and Jeffrey D. Coleman, Jenner & Block, Chicago, for respondent.

Justice RYAN delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission (ARDC) filed a complaint charging the respondent, Russell J. Topper, with professional misconduct in connection with a loan that he made to Judge Reginald J. Holzer. A panel of the Hearing Board found against respondent and recommended a two-month suspension. The respondent and the Administrator filed exceptions to the Hearing Board's report and recommendation. The Review Board agreed that a violation of the Code of Professional Responsibility occurred, and a five-person majority of the Board recommended that respondent be disbarred. Three other members of the Board recommended that his law license be suspended for three years. Respondent filed exceptions with this court pursuant to Supreme Court Rule 753(e)(5) ( 107 Ill.2d R. 753(e)(5)).

The issue presented in this case is whether an attorney violates our disciplinary rules when, allegedly succumbing to an extortionate demand, he loans $10,000 to a judge presiding over a case in which he is an attorney of record, even though the judge later recuses himself from the matter upon the attorney's request. We conclude that respondent violated our Code of Professional Responsibility.

Respondent was licensed to practice law in Illinois in 1933, and since that time he has been a sole practitioner specializing in an equity and chancery practice. In the fall of 1978, respondent filed a suit, which we will refer to as the Brown case, in the chancery division of the circuit court of Cook County. The suit sought an equitable accounting, a constructive trust, injunctive relief, and compensatory and punitive damages in excess of $2 million as a result of alleged misappropriation of corporate assets. Respondent considered the Brown case the most important one he was handling at the time and testified that it was fiercely contested. The case was randomly assigned to Judge Holzer. Respondent was unfamiliar with Holzer, who had been reassigned in 1978 to the chancery division. Prior to the Brown case, respondent had appeared before Holzer in only one case. In that case, respondent had been appointed by Judge Sheldon Brown as attorney for the trustee of a protest fund. After Judge Brown left the bench, Holzer was assigned the case. During the proceedings, respondent appeared before Holzer on at least two occasions. In April 1978, Holzer entered an order granting respondent $4,000 in attorney fees for his work in the case.

Prior to February 13, 1979, respondent appeared before Holzer 10 to 15 times to argue various motions in the Brown case. On February 13, 1979, Holzer granted plaintiffs' motion to strike the four affirmative defenses raised, with leave to file an amended "unclean hands" defense. Holzer also ordered discovery closed by April 6, 1979, and set the case for trial on April 11. On February 21, 1979, Holzer granted plaintiffs' motion to change the trial date to April 26. The following day, respondent received a telephone call from Holzer, who asked if respondent would come to see him. The next day, Friday, February 23, 1979, respondent went to Holzer's chambers. Holzer told him that he was deeply in debt, that his wife had to take a job as an insurance agent, that his two daughters were attending universities and that he needed some money. Holzer asked respondent to speak to his banker friends or clients about obtaining a $10,000 unsecured loan. Respondent said he would do what he could to help and mentioned that he had a friend who was a banker. At the hearing before the Hearing Board, respondent testified that at this meeting he viewed Holzer "as a new, young judge and with a terrible problem." Over the weekend respondent unsuccessfully attempted to reach a friend who was on the board of directors at a bank. On Monday, February 26, he contacted his friend, only to be informed that a loan to the judge would not be possible. His friend offered to give respondent the $10,000, but he refused, explaining that he would find a way to get the loan without embarrassing Holzer.

Respondent decided to withdraw $10,000 from his personal account and did so on February 27, 1979. He then obtained a cashier's check payable to "R. Holzer." Respondent went to Holzer's chambers and informed the judge that he had the loan and handed him an envelope with the cashier's check. Holzer expressed his appreciation and stated that the loan would be paid in a couple of months. At the hearing, respondent testified that he felt a "cold dread" when he handed the money to Holzer, though he further testified that he also felt sorry for Holzer. At no time did respondent request or receive a promissory note from Holzer or other document to evidence the transaction. Nor was there any discussion about interest on the obligation. Neither opposing counsel nor the parties in the Brown case were informed about the loan. The same day as this transaction, defendants in the Brown case filed their amended unclean hands defense. On March 23, 1979, Holzer sustained plaintiffs' (who were represented by respondent) motion to dismiss the defense. Respondent testified that the amended unclean hands defense was nearly identical to the original and that Holzer dismissed it on the same grounds as he had done earlier. Between February 27 and May 30, numerous other motions were filed by each party, mainly relating to discovery and extending the trial date. During this time, Holzer entered approximately 12 orders.

On May 21, 1979, respondent met with Holzer in his chambers. He informed the judge that he was concerned about their relationship because of the appearance of impropriety. Respondent noted that there was only a small risk of discovery, but that the danger was too great for the judge. He also testified that he was concerned about his clients and what would happen to their case if the loan were disclosed. The two discussed the recusal of Holzer, with respondent informing him that no reason need be given for such action. Respondent asked the judge to think the matter over.

Three days later, the two met again in Holzer's chambers and discussed his recusal. Respondent mentioned that he knew of situations where judges had attempted to settle cases before they recused themselves. Holzer then told respondent that he would first attempt to settle the case before recusing himself. On May 29, Holzer briefly met with the attorneys to mediate a settlement. However, the parties were too far apart in their demands and an agreement was not reached. Holzer then recused himself in open court on May 30, 1979, without stating a reason for his action. In the fall of 1979, the case was tried before another judge and concluded with a verdict in favor of respondent's clients for approximately $600,000. The parties later agreed to a $400,000 settlement. Respondent's fee in the Brown case was approximately $100,000.

After the completion of the case, respondent went to see Judge Covelli, a longtime friend of his, and told him about the incident with Holzer. Judge Covelli suggested that respondent inform Judge Donald O'Brien, the presiding judge of the chancery division and another longtime friend of respondent. Respondent testified he immediately told Judge O'Brien what had happened. At the hearing, Judge O'Brien testified that he recalled talking to respondent and that respondent was upset because Holzer was pressing him to buy insurance from his wife. The judge, however, could not recall whether respondent reported the $10,000 loan, but was not certain that respondent did not mention it. Judge O'Brien also testified that he suggested they go see Judge Boyle, the chief judge of the Cook County circuit court, but that respondent declined. According to Judge O'Brien, during the time he presided over the chancery division, from 1968 to 1980, respondent was the only attorney to complain to him about Holzer's conduct.

After completion of the Brown case, respondent twice saw Holzer in 1979. On each occasion he asked for repayment of the loan and Holzer responded that within the next few months he would repay him. On one of these two occasions, Holzer suggested that he would appoint respondent as guardian in a will construction case. Respondent refused, stating that he was busy working on a trial. Earlier, respondent had resolved never to appear in a case before Holzer again, and he did not subsequently appear before him. The $10,000 loan was never repaid.

In 1984, Holzer became the subject of a Federal criminal investigation and respondent was contacted by IRS agents concerning his relationship with Holzer. Respondent agreed to testify before a Federal grand jury and at the Holzer trial as a government witness, under an agreement that what he said would not be used against him so long as he told the truth. Holzer was convicted of, among other crimes, extorting Russell Topper. Scott Turow, the chief trial lawyer for the government in the Holzer case, testified at respondent's hearing that he met and talked with respondent many times during the Holzer case. He further testified that respondent was very cooperative and truthful with the government and expressed remorse over what he had done. As a result of the adverse publicity from the Holzer trial, respondent's law practice was significantly diminished and he has since retired.

Based upon the disclosure of respondent's financial transaction with Holzer, the Administrator of the ARDC filed a complaint alleging that respondent had engaged in professional misconduct. The complaint charged that respondent's...