Yamaguchi, In re, 64463

• Decision Date: 16 November 1987
• Docket Number: No. 64463,64463
• Citation: 113 Ill.Dec. 928,515 N.E.2d 1235,118 Ill.2d 417
• Parties: , 113 Ill.Dec. 928 In re Jiro YAMAGUCHI, Attorney, Respondent.
• Court: Illinois Supreme Court

Page 1235

515 N.E.2d 1235

118 Ill.2d 417, 113 Ill.Dec. 928

In re Jiro YAMAGUCHI, Attorney, Respondent.

No. 64463.

Supreme Court of Illinois.

Nov. 16, 1987.

Thomas P. Sukowicz, Atty. Registration and Disciplinary Com'n, Chicago, for administrator.

Sidney Z. Karasik, Chicago, for respondent-appellant.

Justice CUNNINGHAM delivered the opinion of the court:

This action involves a complaint which the Administrator of the Attorney Registration and Disciplinary Commission (Administrator) filed against respondent, Jiro Yamaguchi, alleging that he had (a) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 1-102(a)(4) of the Code of Professional Responsibility (Code) (107 Ill.2d R. 1-102(a)(4)); (b) engaged in conduct that is prejudicial to the administration of justice in violation of Rule 1-102(a)(5) of the Code (107 Ill.2d R. 1-102(a)(5)); (c) aided a nonlawyer in the unauthorized practice of law in violation of Rule 3-101(a) of the Code (107 Ill.2d R. 3-101(a)); and (d) failed to reveal to a tribunal information in his possession clearly establishing that a person other than his client had perpetrated a fraud upon that tribunal in violation of Rule 7-102(b)(2) of the Code (107 Ill.2d R. 7-102(b)(2)). The Administrator requested that respondent be disbarred.

The hearing panel found that respondent was careless and indifferent to the prevention of the unauthorized practice of law but that respondent neither harmed nor intended to harm anyone. The hearing panel recommended a reprimand. The Review Board thought a reprimand insufficient and recommended a six-month suspension. Both parties filed exceptions to the Review Board's recommendations.

The record contains much contradictory testimony. The contradictions are largely between respondent's testimony before the hearing panel and his testimony given previously at the trial of Albert Ebert (United States v. Ebert (N.D.Ill.1981), No. 80-CR-518), a real estate broker whom respondent is accused of aiding in the unauthorized practice of law. The hearing panel considered both the testimony which respondent and Ebert gave at the disciplinary hearing and the testimony which respondent previously had given in the Ebert trial. We herein summarize the evidence which the hearing panel considered.

Respondent was licensed to practice law over 40 years ago (in 1946) and has since then primarily conducted a general practice, which includes substantial real estate work. For over 25 years he has been a friend of Albert Ebert.

Beginning sometime prior to 1975, Ebert began filing real estate valuation complaints (valuation complaints) before the board of appeals of Cook County (tax board). Pursuant to rule 9 of the tax board, such valuation complaints must be signed by an attorney (or by the property owner himself). In fact, the valuation complaints contain a portion prominently entitled "Attorney's Appearance and Affidavit of Compliance with Rule 9," in which the attorney affirms that he has read the valuation complaint and that he has personal knowledge that the contents thereof are accurate. The testimony indicated that, at least prior to 1975, the tax board did not strictly enforce this rule, and that in fact Ebert signed his own name to many such complaints before then.

In 1975, a tax board employee told Ebert that an attorney's name must be used on any valuation complaint filed with the tax board, unless the property owner represents himself in such matter. Ebert then consulted respondent regarding using respondent's name on valuation complaints filed with the tax board. Respondent acknowledged at the hearing that during that conversation he signed numerous valuation complaints completed by Ebert's staff and numerous blank valuation complaints, which he gave to Ebert. Respondent told the hearing panel that he was not merely permitting Ebert to use his name, but that he took full responsibility for the valuation complaints which he signed and that he tried to attend the hearings on all of those valuation complaints. However, in the Ebert trial respondent acknowledged that he does not know what became of the initial valuation complaints and that he was not asked to attend the hearings on any valuation complaints handled by Ebert's office until 1978. (Prior to that time Ebert appeared at the hearings on many of the valuation complaints himself.)

Respondent acknowledged at the hearing that from 1975 through 1979 vast numbers of valuation complaints which contain his name were signed by Ebert or his secretary and that Ebert used stationery containing respondent's name and Ebert's address. Respondent told the hearing panel that he discovered this practice in 1977 and ordered it stopped. However, the fact that the practice continued until 1979, during which time respondent appeared before the tax board handling what may have been the same complaints which contained his forged signature, casts doubt on respondent's assertion in this respect. Further, during the Ebert trial respondent testified that he would not have objected to Ebert's signing of respondent's name to the complaints.

Evidence was also conflicting as to whether respondent was compensated for either his services or the use of his name. In Ebert, respondent testified that he refused to pay a bill which Ebert sent him for unrelated services, since respondent viewed Ebert's use of respondent's name as fair compensation for Ebert's services. Respondent also stated in the Ebert trial that he had received cash from Ebert for the use of his name. Respondent told the hearing panel that this statement was in error.

The parties disagree as to what facts can be discerned from the above testimony. This disagreement arises in part from a dispute regarding the use of respondent's Ebert testimony. The Administrator sought to use respondent's Ebert testimony as admissions. The Administrator's basis for this position was that he served upon respondent, pursuant to Supreme Court Rule 216 (107 Ill.2d R. 216), a request for admission of facts and genuineness of documents. In the request he asked respondent to admit, inter alia, that the transcript of the Ebert testimony was a correct record of the testimony given in Ebert and that respondent's testimony therein was made under oath and was true.

Respondent failed to reply to the request within the 28 days specified by Rule 216, and the Administrator argued that therefore the truth of respondent's testimony contained in Ebert was admitted. Respondent argued that he had not intended to stipulate to the truth of his prior testimony, but only to the accuracy of the transcript as a compilation of the testimony. Respondent further argued that even if his failure to respond to the request was an admission of the truth of the prior testimony, the prior testimony could still be contradicted, and the hearing panel could then consider both the live testimony and respondent's Ebert testimony in determining the relevant facts.

The hearing panel allowed respondent to contradict his prior testimony. This ruling does not comport with Rule 216 and in a standard civil proceeding would be erroneous. Under Rule 216, a party who admits a fact cannot in the same proceeding deny the same. (See City of Champaign v. Roseman (1958), 15 Ill.2d 363, 155 N.E.2d 34 (involving Supreme Court Rule 18, the predecessor to Supreme Court Rule 216).) However, the rules of evidence applicable in an ordinary civil proceeding need not be strictly applied to a disciplinary proceeding. (In re Silvern (1982), 92 Ill.2d 188, 65 Ill.Dec. 272, 441 N.E.2d 64.) Since a disciplinary action's primary purpose is to protect the public from unqualified or unethical practitioners (In re Nesselson (1966), 35 Ill.2d 454, 220 N.E.2d 409), technicalities will not be invoked either to shield an attorney from discipline (In re Czachorski (1969), 41 Ill.2d 549, 244 N.E.2d 164) or to prevent him from establishing a legitimate defense (In re Ashbach (1958), 13 Ill.2d 411, 150 N.E.2d 119). Therefore, we find that the hearing panel did not err in weighing all of respondent's testimony (including his Ebert testimony) to help determine the true facts.

This court bears the responsibility for determining the sanction appropriate to the facts of this case. In determining those facts, however, the findings of the hearing panel, the body best positioned to evaluate the credibility of the witnesses, are entitled to great weight. In re Hopper (1981), 85 Ill.2d 318, 53 Ill.Dec. 231, 423 N.E.2d 900.

Accordingly, we accept the hearing panel's limited factual findings, which are clearly supported by the evidence. These findings include that (1) respondent signed some complaints in blank and gave them to Ebert, (2) Ebert's secretary signed respondent's name on some of the valuation complaints, (3) there was insufficient evidence that respondent received consideration for the use of his name, (4) respondent failed to use diligence in discovering and preventing the use of his name in proceedings before the tax board in which he did not participate, (5) respondent was careless and indifferent to the prevention of the unauthorized practice of law, and (6) there was no evidence of any harm to anyone or any intent to harm anyone.

Although we accept the hearing panel's factual findings, we consider those findings in conjunction with other clearly established facts as to which the hearing panel did not make express findings. This case involves an attorney with many years' experience who signed en masse a vast number of form valuation complaints, some of which were blank. With respect to the completed valuation complaints which he signed, respondent made no effort to ascertain whether the contents of those complaints were accurate and made no inquiry as to the propriety of the theory of relief. (Reevaluations could be based on any of numerous theories, such as an income producing basis or a market value...