Witt, In re

• Decision Date: 21 November 1991
• Docket Number: No. 71176,71176
• Parties: , 164 Ill.Dec. 610 In re Alphonse Frank WITT, Attorney, Respondent.
• Court: Illinois Supreme Court

Page 526

583 N.E.2d 526

145 Ill.2d 380, 164 Ill.Dec. 610

In re Alphonse Frank WITT, Attorney, Respondent.

No. 71176.

Supreme Court of Illinois.

Nov. 21, 1991.

[145 Ill.2d 384] [164 Ill.Dec. 612] James J. Grogan, Chicago, for the Administrator of the Attorney Registration & Disciplinary Com'n.

George B. Collins, and Theresa M. Gronkiewicz, Collins & Bargione, Chicago, for respondent.

Justice FREEMAN delivered the opinion of the court:

On July 21, 1988, the Administrator of the Attorney Registration and Disciplinary Commission (ARDC) filed a three-count complaint charging that respondent, Alphonse Frank Witt, had violated various provisions of the Illinois Code of Professional Responsibility. (107 Ill.2d R. 1-101 et seq. (superseded by Rules of Professional Conduct, 134 Ill.2d R. 1.1 et seq.).) Specifically, counts I and II of the complaint alleged that respondent, while sitting as a judge in the circuit court of Lake County, had importuned loans from an attorney who practiced before him and that respondent failed to disclose this debtor-creditor relationship. Count III alleged that respondent failed to disclose the debtor-creditor relationship on his "Declaration of Economic Interest" statement. (87 Ill.2d R. 68.) The complaint alleged that, as a result of this conduct, respondent had violated In his answer, respondent denied that he was "guilty of conduct which tends to defeat the administration of justice or to bring the court and legal profession into disrepute," and raised certain affirmative defenses. He admitted the debtor-creditor relationship and the allegations that he failed to disclose that relationship.

[164 Ill.Dec. 613] Disciplinary Rules 1-102(a)(2) (107 Ill.2d R. 1-102(a)(2)) (circumvention of a disciplinary rule through the actions of another); 1-102(a)(4) (107 Ill.2d R. 1-102(a)(4)) (engaging in conduct involving fraud, deceit or misrepresentation); 1-102(a)(5) (107 Ill.2d R. 1-102(a)(5)) (engaging in conduct that is prejudicial to the administration of justice); and Canon 9 (107 Ill.2d Canon 9) (failure to avoid the appearance of impropriety).

A panel of the Hearing Board (Board) determined that as to all three counts respondent had violated Rule 1-102(a)(5) and Canon 9. (In its report the Hearing Board stated that respondent had violated "Rule 1-102(a)(9)." There is no such rule. It is apparent from the discussion in the report that the Board meant that respondent had violated Rule 1-102(a)(5).) The Board concluded, however, that as to counts I and II, the evidence did not disclose a violation of Rule 1-102(a)(2), and as to all counts, respondent did not violate Rule 1-102(a)(4). The Board recommended that respondent be suspended from the practice of law for 30 days.

The Administrator filed timely exceptions to the report and recommendation of the Hearing Board with the Review Board. (107 Ill.2d R. 753(e)(1).) The Review Board adopted the findings of fact and conclusions of law of the Hearing Board and concurred in recommending a 30-day suspension. This court granted the Administrator leave to file exceptions to the report and recommendations of the Review Board. 107 Ill.2d R. 753(e)(6).

RESPONDENT'S BACKGROUND

Respondent was admitted to practice law in Illinois on May 17, 1966. On July 16, 1976, respondent was appointed an associate judge of the circuit court of Lake County, during which time he presided over traffic cases in the Lake County branch courts. After a year or two, respondent was transferred to the Lake County courthouse in Waukegan and was eventually assigned to hear family law and criminal cases. He was subsequently appointed presiding judge of the chancery and probate divisions. Respondent continued to hear criminal cases notwithstanding his various appointments as presiding judge.

In 1986, after serving on the bench for 10 years, respondent resigned his judicial office. He subsequently joined the law firm of Schiller, DuCanto and Fleck, concentrating his practice in the area of domestic relations. Respondent left the firm in August 1987. At the time of these disciplinary proceedings respondent was a sole practitioner in Waukegan.

FACTS

The facts are not in dispute. Respondent met Steven Lunardi in 1973 or 1974 when both men served in the Lake County State's Attorney's office. The two men developed a close friendship. During 1976 and 1977, while still employed as an assistant State's Attorney, Lunardi prosecuted a number of cases before respondent. When Lunardi entered private practice in 1978, he continued to appear before respondent on a regular basis. Lunardi's office was located directly across the street from the courthouse where respondent had his chambers. Respondent would frequently have social visits with Lunardi during the noon court recess.

The First Loan

According to respondent, in 1981 or 1982, the State Treasurer sent the associate judges an empty pay envelope. In anticipation of receiving his pay, respondent had written approximately $1,200 to $1,400 in checks for payment of his monthly bills. He did not have money to cover these checks. When he did not receive his pay, respondent approached Lunardi for a personal loan. Lunardi had no cases pending before respondent at that time. Lunardi agreed to lend respondent a sum between $1,200 and $1,400 and immediately gave

[164 Ill.Dec. 614] respondent a check for the agreed-upon amount. No promissory note [145 Ill.2d 387] was taken, no security was involved, and the loan was interest free. After receiving the loan from Lunardi, respondent "covered" the checks which he had written. Within two or three days, respondent received his pay and immediately repaid Lunardi.

The 1984 Loan

Respondent testified that in October 1984 he recognized that he was short of money needed to pay his real estate taxes. At one of his noon visits with Lunardi, Lunardi told respondent that he had recently sold his condominium and that he was "flush with money." Respondent asked Lunardi for a $1,100 loan and Lunardi agreed. The loan was unsecured and was not evidenced by a promissory note. According to their agreement, respondent would repay the loan in $100 monthly installments until the loan was repaid. It was also understood that respondent would give Lunardi an extra $100 as interest. On November 13, 1984, respondent received a check from Lunardi for the agreed-upon loan amount.

Respondent commenced repayment of the loan in January 1985. Repayment was made by check and the loan was fully repaid, with interest, by November or December 1986.

In late November of 1984, after respondent received the loan proceeds, but before he made any repayment of the obligation, Lunardi appeared before him on behalf of a defendant in a criminal bench trial (People v. Martiny). At no time did either respondent or Lunardi ever reveal to the opposing party the existence of their debtor-creditor relationship.

People v. Martiny involved allegations of assault and battery. After the Martiny trial had started, Lunardi demanded that the trial stop so that a court reporter could be brought in. Police officers who investigated the battery complaint were called as defense witnesses. Their testimony directly contradicted the plaintiff's photographic evidence depicting injury. At the close of all the proofs, respondent acquitted the defendant.

During the time that the 1984 loan was outstanding, Lunardi appeared before respondent on two other occasions. In one case, People v. Shanahan, Lunardi moved for a substitution of judges, which respondent granted. In the other instance, Lunardi represented a defendant in a forfeiture case in which respondent entered an order of forfeiture, signed November 30, 1984, against the defendant.

Respondent testified that he acquitted defendant Martiny because the evidence convinced him "beyond a reasonable doubt" that he was not guilty. David Semmelman, the prosecuting attorney in the Martiny case, testified that he was aware of the friendship between respondent and Lunardi at the time of the Martiny trial. Although he would have liked to have known about the debtor-creditor relationship, Semmelman stated that he would not have done anything differently had he known.

Declaration of Economic Interest

During 1985, respondent, as an associate judge, was required to file a "Declaration of Economic Interest" statement with the Director of the Administrative Office of the Illinois Courts. Respondent testified that the purpose of filing the statement is "to disclose what interests you as a judge may have which would interfere with the proper administration of justice." On March 11, 1985, respondent signed his verified 1985 statement. In response to question six, which stated: "My economic interests and relationships and those of my wife and our minor children residing with us, other than those listed in numbered paragraphs 1 to 5 hereof, which could create substantial conflicts of interest for me in my judicial capacity are as follows," respondent answered, "None." Respondent testified that he thought that he had to list persons to whom he owed over $1,000. At the time respondent filed this declaration he owed Lunardi $800.

On May 21, 1985, Lunardi was arrested for possession of cocaine. In his wallet he had a check for $100 drawn on one of respondent's bank accounts. The proceeds Three days after his arrest, Lunardi informed respondent that the check had been inventoried by police officials. Thereafter, respondent informed his chief judge of his debtor-creditor relationship with Lunardi. Subsequently, the Judicial Inquiry Board initiated an investigation against respondent. Prior to any proceeding before the Inquiry Board, respondent resigned his judgeship. On July 18, 1989, as a result of his violation of Rule 7-110(a) (107 Ill.2d R. 7-110(a)), and conviction for possession of a controlled substance, Lunardi was suspended from the practice of law for a period of 18 months. In re Lunardi (1989), 127 Ill.2d 413, 130...