Witte, In re

• Decision Date: 01 December 1983
• Docket Number: No. 58302,58302
• Citation: 458 N.E.2d 484,99 Ill.2d 301,76 Ill.Dec. 84
• Parties: , 76 Ill.Dec. 84 In re Donald Martin WITTE, an Attorney, Respondent.
• Court: Illinois Supreme Court

Page 484

458 N.E.2d 484

99 Ill.2d 301, 76 Ill.Dec. 84

In re Donald Martin WITTE, an Attorney, Respondent.

No. 58302.

Supreme Court of Illinois.

Dec. 1, 1983.

Rehearing Denied Jan. 27, 1984.

William J. Harte, Ltd. Chicago, for respondent; William J. Harte, Chicago, of counsel.

James J. Grogan, Attorney Registration and Disciplinary Commission, Chicago, for administrator.

RYAN, Chief Justice:

The Administrator of the Attorney Registration and Disciplinary Commission initiated this reciprocal disciplinary action against respondent, Donald Martin Witte, following a Supreme Court of Missouri order that respondent be disbarred for what it referred to as commingling a client's funds with his own. (See In re Witte (Mo.1981), 615 S.W.2d 421, 428 (en banc).) The Bar Committee of St. Louis instituted the Missouri proceedings against respondent when it found probable cause to believe him guilty of professional misconduct. A special master was appointed to hear evidence and make findings of fact, conclusions of law, and recommendations. The master found respondent guilty of professional misconduct and recommended a public reprimand. The Supreme Court of Missouri, reviewing the case de novo, found respondent guilty of commingling and ordered him disbarred.

After the Supreme Court of Missouri denied his petition for rehearing, respondent appealed to the United States Supreme Court, but the appeal was dismissed for want of jurisdiction. The Supreme Court, however, considered the pleadings as a petition for a writ of certiorari and denied certiorari. (Witte v. Bar Committee (1981), 454 U.S. 1025, 102 S.Ct. 559, 70 L.Ed.2d 469.) Respondent then petitioned the Supreme Court of Missouri to reconsider its order. The Missouri court denied this petition on February 16, 1982, "without prejudice to [respondent's] filing for reinstatement on or after one year from date of this order." (Mo.S.Ct. Order, Feb. 16, 1983, No. 61379.) At this point, respondent was ordered to surrender his Missouri license.

Upon learning of the Missouri disbarment, the Administrator petitioned this court pursuant to Rule 763 (87 Ill.2d R. 763) for an order that respondent's license to practice law in Illinois be suspended for the same period of time and upon the same conditions ordered by the Supreme Court of Missouri. At respondent's request, the Administrator filed a motion with the Hearing Board to schedule a hearing on the matter. This court subsequently denied the Administrator's petition for suspension and remanded the cause to the Hearing Board.

Concluding that respondent should be subject to the same discipline in Illinois as ordered by the Supreme Court of Missouri, the Hearing Board recommended in August 1982 that he be disbarred, but that he be allowed to petition for reinstatement under Rule 767 (87 Ill.2d R. 767) on or after February 16, 1983. Respondent filed exceptions to the Hearing Board report.

The Review Board, after permitting briefs and oral argument, rejected disbarment as a proper sanction, but unanimously agreed that suspension is warranted. The Review Board members were unable to agree upon the length of the recommended suspension or the precise procedure that should be followed for reinstatement. The minority concluded, however, that respondent should not be required to petition for reinstatement under Rule 767. From these Review Board recommendations, respondent has filed exceptions.

Before proceeding to respondent's contentions before this court, we note the most recent development regarding his license to practice law in Missouri. In February 1983 respondent became eligible to petition the Supreme Court of Missouri for reinstatement. He applied to the court for reinstatement, but in September 1983, the application was denied. Mo.S.Ct. Order, Sept. 20, 1983, No. 64834.

The issues that an attorney respondent may address before the Hearing Board in a reciprocal disciplinary action are defined by Rule 763 (87 Ill.2d R. 763). In this case, respondent raised two of the five issues on which the rule allows him to be heard. The first is whether the procedure in Missouri was so lacking in notice and opportunity to be heard as to have deprived respondent of due process of law. The second issue is whether respondent's conduct warrants substantially less discipline in Illinois than was imposed in Missouri. We will consider these questions after summarizing respondent's conduct that precipitated the Missouri disciplinary proceedings as stated in In re Witte (Mo.1981), 615 S.W.2d 421 (en banc).

Respondent was employed by Mrs. Doris Duckett to pursue two claims that arose when an accident involving a bus resulted in her husband's death. Mrs. Duckett retained respondent on a contingent-fee basis to recover against the transportation authority for wrongful death and to recover $1,000 allegedly due from an insurer under a double-indemnity clause.

Respondent settled each case for $750 and deposited the proceeds into office or personal bank accounts that contained his own funds. He subsequently withdrew all funds in these accounts for his personal use. In addition, after deducting expenses, respondent reported these settlement funds as his own income for tax purposes. No settlement proceeds were delivered to Mrs. Duckett until another attorney contacted respondent in her behalf. Prompted by this inquiry, he paid the client a portion of the proceeds.

These facts were regarded as undisputed by the Supreme Court of Missouri and our Hearing Board. Based on the testimony describing this conduct, the Missouri court found that "[t]he commingling of the client's funds is admitted." (615 S.W.2d 421, 423.) The court found no mitigating circumstances that justified respondent's conduct. After looking to prior Missouri commingling cases for an appropriate sanction, a majority of the Missouri court concluded that respondent should be disbarred.

In addition to the undisputed details of the basic transaction, the Supreme Court of Missouri considered evidence taken before the special master bearing on issues that might explain or justify respondent's conduct. The foremost of these issues is whether the client agreed to either settlement.

Mrs. Duckett testified that she did not agree to settle either case and, further, that she did not see or sign settlement papers or drafts. Respondent, on the other hand, recalled that Mrs. Duckett knew of and agreed to both settlements. He stated that, to the best of his recollection, she had seen and signed all documents in a manner consistent with his office routine. With respect to the nondelivery of settlement proceeds, respondent testified that, in each case, Mrs. Duckett had requested that he retain the sums for her rather than pay them out immediately.

During hearings before the Missouri special master, respondent also discussed the extent to which he had commingled funds. In his view, he owed his client a net amount of only $118.60. He derived this figure by subtracting from the settlement proceeds his fees for the two settlements, the court costs, and fees for unrelated legal services that he claimed to have performed for Mrs. Duckett. Respondent stated that after the other attorney contacted him about Mrs. Duckett's situation, he decided to waive the fees for the collateral legal services. Hence, his ultimate payment to her exceeded the $118.60 that he thought he actually owed. Although respondent frequently referred to his office records while testifying before the master, he did not produce time records or other documentation of the services he claimed to have rendered with respect to legal matters other than the two settlements.

The Supreme Court of Missouri also considered that Mrs. Duckett was a difficult client with whom to transact business. The special master found that "[s]he was unpredictable, uncooperative, [and] evasive." (615 S.W.2d 421, 422.) The evidence showed that she experienced much emotional and physical stress during the time that she dealt with respondent.

The Supreme Court of Missouri did not find that any of these additional circumstances qualified as mitigating factors that would justify imposing a lesser sanction upon respondent. The court rejected the theory that the client's physical or mental problems in any way excused respondent's conduct: "For every degree that respondent by his testimony and evidence proved a less than normal mental and functional capacity on the part of his client, Doris Duckett, he raised by an equivalent degree the standard of conduct which this Court must require of him * * *." 615 S.W.2d 421, 422.

As noted earlier, respondent has raised two of the issues that Rule 763 (87 Ill.2d R. 763) allows him to address in this reciprocal disciplinary action. His first contention is that the Missouri procedure deprived him of due process of law. With respect to this claim, respondent has not disputed our Hearing Board's conclusions that, in Missouri, he was represented in all proceedings by able counsel; that he was allowed to and did testify himself; and that he availed himself of the opportunity to cross-examine witnesses. Instead, respondent's argument centers on the Supreme Court of Missouri reviewing the case de novo, in which review the special master's recommendation, public reprimand, was rejected in favor of a harsher sanction. Respondent complains that from a written record the court drew conclusions contrary to those of the master who had personally observed the witnesses. In respondent's view, this procedure deprived him of the fair hearing that due process requires.

We find this argument to be without merit. Attorney discipline cases reach the Supreme Court of Missouri in the nature of an original proceeding. (See In re Gamblin (Mo.1970), 458 S.W.2d 321, 322 (en banc).) Just as the hearing and review boards serve as agents for this court in the fact-finding process (In re Mitan (1979), 75 Ill.2d 118, 123-24, 25 Ill.Dec. 622, 387...