I. INTRODUCTION

In its preamble to the Rules of Professional Conduct, the Supreme Court of Illinois stated that the practice of law is a public trust. Lawyers are responsible for maintaining the competence and integrity of the profession, for improving the legal system so that it meets the needs of society and for "defending the integrity of the judicial system against those who would corrupt, abuse or defraud it." The of Professional Conduct, like their predecessor, the Code of Professional Responsibility, were adopted in order to ensure that these ends are achieved. In one disciplinary opinion, the Supreme Court stated that "[o]ne objective in adopting the Code was, through compliance therewith, to achieve a high degree of integrity in the legal profession in this State, thereby enhancing the public's respect for law and lawyers." In re Kuta, 86 I11.2d 154, 427 N.E.2d 136 (1981). The violation of one of the Rules of Professional Conduct is grounds for discipline.

Discipline can involve the loss or the suspension of an attorneys license to practice law. It may involve a reprimand or censure by one of the boards of the ARDC or by the court. While these do not involve the loss an attorney's ability to practice law, they are public findings that an attorney has engaged in misconduct. For a more detailed discussion of the forms of discipline that may be imposed on a lawyer, see Section III, infra.  (Top of Page)

An attorney who is unaware of a particular rule of professional conduct may nevertheless be disciplined for violating it. The Supreme Court has held that an attorney's "lack of knowledge does not excuse his conduct. A common maxim holds that ignorance of the law is no excuse, and this is particularly true in a case where the person who claims lack of knowledge of a relevant directive is a practicing attorney. It is a paramount obligation of each member of the bar to study the Code of Professional Responsibility [now the Rules of Professional Conduct] and abide by its terms and principles." In re Cheronis. 114 I11.2d 527, 502 N.E.2d 722 (1986). In another case, the Court held that "attorneys who fail to understand and follow the disciplinary rules do so at their peril." In re Gerard, 132 I11.2d 507, 548 N.E.2d 1051(1989).

An attorney may also be disciplined for conduct that does not violate a specific provision of the Rules of Professional Conduct. The Court has disciplined attorneys for conditioning the settlement of a civil action on the dismissal of the concurrent disciplinary investigation which was initiated by the other party to the civil litigation. The Court found that this conduct was "inherently bad, and tended to defeat the administration of justice and to bring the legal profession into disrepute." In re Jerome. 31 I11.2d 284, 201 N.E.2d 440 (1964). In 1990, that holding was codified in Rule 1.8(h) of the Rules of Professional Conduct.

The Supreme Court recognizes that the duties arising under these rules may conflict with each other. Lawyers thus may be faced with the prospect of resolving ethical dilemmas. The Court noted in its Preamble to the Rule of Professional Conduct (1990) that attorneys resolve these dilemmas at the peril of violating one or more of the Rules of Professional Conduct. For example, in In re Walner, 119 I11.2d 511, 519 N.E.2d 903 (1988), the Court censured an attorney who, in the Court's opinion, had "lost sight of the fact that the duties to represent a client zealously and competently are qualified by the requirement that he act within the bounds of the law."  (Top of Page)

Lawyers are frequently confronted with situations that may lead to a complaint being submitted to the Attorney Registration and Disciplinary Commission (ARDC).

 These situations may involve clients whose expectations are not met, clients whose interests have become adverse to those of their attorney or with another of the attorney's clients, or attorneys who become aware of the possibly illegal or dishonest conduct of another attorney. In those situations it is crucial to consult with another attorney before taking action which may exacerbate the situation and lead to an investigation and possible disciplinary action. Sometimes consulting with another attorney in the same firm or with a friend may be sufficient. Some law firms have Ethics Committees to deal with such problems. Sometimes, however, it is important to seek the advice of an attorney who is experienced in disciplinary matters in order to avoid disciplinary problems, to correct or mitigate the situation and to keep from making matters worse.

This volume is the product of the authors' experience in legal malpractice and professional responsibility defense. Our experience in these matters has led us to the discovery that lawyers are unwittingly unable to apply liability concepts to themselves that they were easily able to apply to their clients. Inevitably, we found that this inability led to confusing legal relationships, conflicts of interest, and even unwitting participation in fraud and securities violations. We discovered that, without adequate representation, attorneys charged with malpractice or ethical misconduct frequently aggravate the situation and actually engage in misconduct in their attempts to address the charges. We discovered that lawyers are the least likely persons to seek legal advice, even though they may need it as much as anyone else. Our advice to lawyers is simple: Do not be reluctant to hire outside counsel to analyze your role in a situation in which ethical issues arise before anyone complains to the ARDC as well as after the ARDC investigation has begun.  (Top of Page)

II. FUNCTION OF THE ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION

A. Background

The Supreme Court of Illinois has inherent and exclusive authority over the discipline of lawyers admitted to practice law in the State of Illinois. In re Day, 181 m. 73, 54 N.E. 646 (1899). In 1973 the Court established the Attorney Registration and Disciplinary Commission (ARDC) to assist it in exercising that authority. (Illinois Supreme Court Rule 751, Ill.Rev.Stat. 1973 ch. 110A, q751). Since the adoption in 1973 of Rule 751, the ARDC has administered the registration and discipline of Illinois attorneys. Prior to that time, the Illinois State Bar Association and the Chicago Bar Association performed that function. The Court established the ARDC in response to a petition filed by the ISBA and the CBA requesting that the Court establish a more effective system for handling the increasing amount of disciplinary regulation required for the growing attorney population.

 B. The Registration System

When the ARDC was created in 1973, it was established under the form of a registration system. Pursuant to Supreme Court Rule 756, every attorney licensed to practice in Illinois is required to register each year with the Administrator of the ARDC on or before the first of January. Another requirement of Rule 756 is that most attorneys must pay a registration fee, the amount of which is set forth in the rule. Attorneys who have been licensed less than one year, who are at least 75 years old, or who are serving in the military are exempt from payment. Under certain circumstances, the Administrator may waive the registration fee.   (Top of Page)

The registration fees Illinois attorneys pay to the ARDC constitute the disciplinary fund. The operation of the ARDC is funded solely by the money contained in this fund. The salaries of the Administrator and his staff are paid out of the disciplinary fund. No public funds are used to operate the ARDC. The Chicago Bar Association. et al. v. Cronson, 183 Ill.App.3d 710, 539 N.E.2d 327 (1989), appeal den. 127 Il1.2d 613, 545 N.E.2d 106, cert. den. 110 S.Ct. 867, 107 L.Ed2d 950.

The registration requirement is significant for any attorney who wishes to practice law in Illinois. Under Supreme Court Rule 756, it is not enough to be licensed by the Supreme Court. A lawyer must also be registered with the ARDC and have paid any required registration fee. Pursuant to Rule 756, the Administrator of the ARDC maintains a master role of attorneys which consists of the names of attorneys who have registered and have paid or are exempt from paying the registration fee. An attorney whose name is not on the master role "is not entitled to practice law or to hold himself out as authorized to practice law in this state." Illinois Supreme Court Rule 756(d).

On the first day of February of each year the Administrator is required to remove from the master role the name of any attorney who has not registered for that year. The rule also sets forth the consequences resulting from an attorney who fails to register and continues to practice law: "any person whose name is not on the master role and who practices law or who holds himself out as being authorized to practice law in this state is engaged in the unauthorized practice of law and may also be held in contempt of court." Supreme Court Rule 756(d).  (Top of Page)

If an attorney is not practicing law or holding himself out as authorized to do so, he may not be subject to a contempt proceeding for failure to register. In order to become authorized to practice law again, however, he must register and pay any unpaid registration fee together with $10 per month for each month that his registration fee is delinquent. Supreme Court Rule 756(e).

An attorney who continues to practice law or holds himself out as authorized to practice law after failing to register and pay the registration fee, may find himself the subject of an investigation initiated by the Administrator of the ARDC. The investigation may arise out of information received from any number of sources such as the attorney's registration records or a communication from a member of the public. If it appears through information obtained from a judge, a lawyer or a member of the public that the unregistered lawyer may be continuing to practice law, the Administrator may initiate an investigation based upon that information to determine whether that lawyer is practicing law or holding himself out as authorized to practice law in violation of Rule 756.

If the Administrator determines that a lawyer has continued to practice law or hold himself out as authorized to practice law during a period of time in which he is not registered, the Administrator likely will initiate a disciplinary proceeding or a contempt proceeding against that lawyer as a consequence of that lawyer's violation of Rule 756. In some circumstances the matter may be referred to the States Attorney to investigate whether the unregistered attorney has violated a criminal statute such as Ill. Rev. Stat. Ch. 38 §32-5, which prohibits a person from falsely representing himself to be an attorney authorized to practice law.

Another significant aspect of Rule 756 is the duty of each attorney to provide the Administrator with his correct address. The address provided to the Administrator at the time of registration is the address to which the Administrator sends the notice each year of the registration requirement. Rule 756 provides that a lawyer's failure to receive the notice does not excuse him from the registration requirement.  (Top of Page)

The requirement to provide a current address to the Administrator is also significant because Supreme Court Rule 765 authorizes service on attorneys of any notice, complaint, petition, subpoena, pleading or document in a disciplinary proceeding by delivery of that document to the address listed on the master role for the attorney. Rule 765 further provides that if a lawyer fails to provide a current address to the Administrator, that attorney is deemed to have appointed the Clerk of the Supreme Court of Illinois to be his registered agent. When that occurs, any document identified in the rule may be served on the Clerk as the agent of the attorney.

C. The Authority to Regulate the Practice of Law

1. Authority of the Supreme Court

The Supreme Court of Illinois has inherent and exclusive authority over the regulation of the practice of law. In re Day, 181 Ill. 73, 54 N.E. 646 (1899). This authority includes the power to regulate the admission of lawyers to the practice of law and the discipline of attorneys who have been admitted. In re Mitan. 75 Il1.2d 118, 387 N.E.2d 278 (1979). The Historical and Practice Notes to Supreme Court Rule 753 state that the Supreme Court alone exercises the disciplinary power over lawyers. Disciplinary proceedings are original proceedings in the Supreme Court. The ARDC Administrator, Inquiry Board, Hearing Board, and Review Board act only as agents of the Court in administering the functions delegated to them. In re H. Reed Harris, 93 Il1.2d 285, 443 N.E.2d 557 (1982).

The Court has not tolerated attempts to interfere with its authority to discipline attorneys. For example, the Court has stated that the ARDC's failure to strictly follow procedural rules in disciplinary proceedings will not limit the Court's authority to discipline a lawyer. In In re Betts, 109 Il1.2d 154, 485 N.E.2d 1081 (1985), the Court rejected a respondent's argument that he was denied a fair hearing because it extended over a seven week period rather than being held on consecutive days as required by then Commission Rule 9.1 (now Rule 274). The Court held that technical objections concerning practice and procedure before the Hearing and Review Boards will not bind or limit the Court's authority to act, absent a showing of prejudice to the respondent. In another case, the Court held that the ARDC's failure to conduct a hearing within 90 days of the service of the Complaint as specified by a Commission rule "does not deprive the Court or its agents of the right or the power to further consider charges against the respondent." In re Tepper, 126 Il1.2d 109, 533 N.E.2d 838 (1988); citing In re Mitan, supra.

The Court has long held that it "will not refuse to hear charges against an attorney because of the expiration of some period of time unless it would be unjust or unfair to compel him to answer such charges." People ex ref. C.B.A. v. Sherwin, 364 Ill. 350, 4 N.E.2d 74 (1936). In another case, the Court rejected a respondent's argument that the disciplinary charge should have been dismissed because it was "stale", concluding that the delay was due to the respondent's concealment of his misconduct. In re Powell, 126 Il1.2d 15, 533 N.E.2d 831 (1988). The Court has consistently held that there is no statute of limitations governing its attorney disciplinary proceedings, and that such proceedings may be barred only when delay has been shown to have prejudiced the respondent's ability to present a substantial defense. In re Teichner, 75 Il1.2d 88, 387 N.E.2d 265 (1979); In re Samuels, 126 Ill.2d 509, 535 N.E.2d 808 (1989). The Court has stated that "we will not refuse to entertain charges simply because of the passage of some period of time." In re Bossov, 60 Il1.2d 439, 328 N.E.2d 309 (1975).  (Top of Page)

2. Authority Delegated to the ARDC

In the exercise of its authority to regulate the Bar, the Supreme Court has delegated certain functions to the ARDC. Pursuant to Supreme Court Rule 751, the ARDC assists the Court by conducting attorney disciplinary proceedings. Supreme Court Rule 752 sets forth the function of the Administrator and his staff. The Supreme Court Rules authorize the Administrator to investigate the conduct of attorneys, to assist the Inquiry Board in its investigations and to prosecute disciplinary cases before the Hearing Board, the Review Board and the Supreme Court.

The scope of conduct that the Administrator is authorized to investigate is very broad. It includes any conduct which violates the Illinois Rules of Professional Conduct and that which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. Supreme Court Rule 752(a). Conduct which tends to defeat the administration of justice is not limited to instances in which a client is harmed by the attorneys conduct. The Court has stated that the administration of justice requires a fair and impartial tribunal and, when the process is tainted by conduct such as currying favor with a judge before whom the lawyer is likely to appear or has a pending case, the fairness and impartiality of the tribunal is compromised and the administration of justice is prejudiced. In re Powell, 126 Il1.2d 15, 533 N.E.2d 831 (1988). Such conduct, even without a showing of harm, subjects attorneys to discipline.

The conduct that may be the subject of an investigation by the Administrator is not limited to acts arising out of an attorneys practice of law. It extends to criminal conduct and other conduct unrelated to the practice of law. Conduct for which attorneys have been disciplined includes disorderly conduct, In re Crisel, 101 Il1.2d 332, 461 N.E.2d 994 (1984); aggravated battery, In re Corcoran, M.R. 3407 (1984); solicitation to commit murder, In re Cramer, M.R. 3544 (1985); failure to file an employer's tax return, In re Thebus, 108 Il1.2d 255, 483 N.E.2d 1258 (1985); failure to file an individual income tax return, In re Gold, 77 Il1.2d 224, 396 N.E.2d 25 (1979); In re O'Hallaren, 64 Il1.2d 426, 356 N.E.2d 520 (1976); embezzlement of funds from a company of which he was an officer, In re Vavrik, 117 Il1.2d 408, 512 N.E.2d 1226 (1987); theft, In re Schneider, M.R. 2850 (1983); In re Ransom, M.R. 3259, M.R. 3997 (1986); possession of cocaine, In re Scarnavak, 108 Il1.2d 456, 485 N.E.2d 1 (1985); making false statements in a loan or passport application, In re Meierkord, M.R. 3332 (1984); In re Migely, M.R. 2248 (1980); testifying falsely before a grand jury and U.S. Senate subcommittee, In re Cook, 67 Il1.2d 26, 364 N.E.2d 86 (1977); issuing a check on an account which contains insufficient funds, In re Stone, 109 I11.2d 253, 486 N.E.2d 915 (1985); failure to pay parking tickets and causing the municipality to sue for the fines incurred, In re Marsh, M.R. 5030 (1988); nondisclosure of information on bar application, In re Mitan, 75 Il1.2d 118, 387 N.E.2d 278 (1979); and plagiarism In re Lamberis, 93 I11.2d 222, 443 N.E.2d 549 (1982).  (Top of Page)

As early as seventy years ago, the Supreme Court of Illinois stated that an attorney's lack of fitness to continue in the profession may be shown by acts not occurring in the discharge of his duties of his profession. Any act which shows such want of professional or personal honesty as to render one unworthy of public confidence affords sufficient grounds for discipline. People ex ref. Chicago Bar Association v. Meyerovitz. 278 Ill. 356, 116 N.E. 189 (1917). The Supreme Court has held repeatedly that an attorney may be disciplined for conduct outside his professional capacity if that conduct evidences a lack of personal honesty or integrity. In re Melin, 410 Ill. 332, 102 N.E.2d 119 (1951); In re Crisel, 101 Il1.2d 332, 461 N.E.2d 994 (1984); In re Imming, 131 I11.2d 239, 545 N.E.2d 715 (1989); In re March, 71 Il1.2d 382, 376 N.E.2d 213 (1978). The Court has stated that "conduct falling outside [a lawyer's] professional capacity cannot simply be ignored to the detriment of the profession and the public." In re Vavrik, supra.

In In re Lamberis, the Court censured an attorney for knowingly plagiarizing two published works in a thesis submitted in satisfaction of a requirement for a master of arts degree. In imposing discipline, the Court identified the limits it places on its review of attorneys' non-professional conduct and stated that it did "not intend to imply that attorneys must conform to conventional notions of morality in all questions of conscience and personal life." The Court explained that it is interested in the private conduct of attorneys "'only in so far as such relates to their professional competence or affects the dignity of the legal profession."' In re Lamberis, supra quoting In re Seritella, 5 Il1.2d 392, 125 N.E.2d 531 (1955).  (Top of Page)

In its preamble to the Rules of Professional Conduct, adopted in 1990, the Court recognized that "the policies which underlie the various Rules may, under certain circumstances, be in some tension with each other." The Court did not give the ARDC the authority to provide advisory opinions to guide lawyers in their conduct. Instead, the Court stated that lawyers must carefully weigh conflicting values and make decisions at the peril of violating one or more of the rules of conduct. The Court suggests that lawyers be sensitive to the duties imposed by the rules and discuss particularly difficult issues with their peers. It may also be helpful under certain circumstances to obtain the advice of an attorney who concentrates in the area of attorney discipline or has experience in disciplinary matters.

III. FORMS OF DISCIPLINE

A. Generally

The Supreme Court has repeatedly held that the purpose of disciplinary proceedings is to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public. In re Ushijima, 119 Ill. 2d 51, 518 N.E.2d 73 (1988). The purpose is not to enforce remedies between parties, People ex ref. Chicago Bar Ass'n v. Meyerovitz, 278 Ill. 356, 116 N.E.189 (1917), or to punish the attorney. In re Heller, 126 Il1.2d 94, 533 N.E.2d 824 (1989). The object of disciplinary proceedings is to determine whether the attorney is a proper person to be permitted to practice law. In re Samuels, 126 Il1.2d 509, 535 N.E.2d 808 (1989).

In order to accomplish its stated purpose, the Supreme Court has developed several forms of discipline. Supreme Court Rule 771 sets forth the types of discipline which may be imposed on attorneys for misconduct:

1. Disbarment;

2. Disbarment on consent;

3. Suspension for a specified period and until further order of the Court;

4. Suspension for a specified period;

5. Suspension until further order of the Court;

6. Suspension for a specified period of time or until further order of the Court with probation;

7. Censure; or

8. Reprimand by the Court, the Review Board or the Hearing Board.

Disbarment and suspension result in the loss of authority to engage in the practice of law. Disbarment always requires that the attorney file a petition for reinstatement before that authority is regained. Suspensions "until further order of court" also require the filing of a petition for reinstatement. Reprimands and censure of a lawyer's conduct do not result in the loss of authority to practice law. They consist of a finding that an attorney has engaged in misconduct that should not be repeated.  (Top of Page)

The Court has held that, in its determination of the nature and extent of discipline

imposed, the respondent's conduct must be examined with the above stated purposes of discipline in mind. In re Himmel, 125 Il1.2d 531, 533 N.E.2d 790 (1988). The Court has stated that it must consider the impact that an attorney's conduct has, or will have, on the legal profession, the public and the administration of justice. In re Kuta, 86 Il1.2d 154, 427 N.E.2d 136 (1981). The Court has noted that "unwarranted lenity can be as injurious to the public interest and to the integrity of the profession as unwarranted severity." In re Gerard, 132 I11.2d 507, 548 N.E.2d 1051 (1989). Among the factors considered by the Court in determining the sanction to be imposed are the presence or absence of a dishonest motive and the respondent's character and reputation in the community. In re Rotman, 136 I11.2d 401, 556 N.E.2d 243 (1990). Evidence of dishonest intent and motive, however, is not necessary to justify the imposition of discipline. In re Helter, 126 I11.2d 94, 533 N.E.2d 824 (1989). The Court also considers the aggravating or mitigating circumstances in each case to determine a sanction which is suitable to serve the purposes of discipline and appropriate to impose on the offending attorney. In re Lacob, 50 I11.2d 277, 278 N.E.2d 795 (1972). Whatever the sanction, it should be related to the harm or exposure to unreasonable risk caused by the respondent's misconduct. In re Lewis, 118 I11.2d 357, 515 N.E.2d 96 (1987).

The Court has recognized the need for uniformity in imposing disciplinary sanctions, but has consistently held that "each case presents a unique factual situation and must therefore be carefully evaluated on its own merits." In re Rollev, 121 I11.2d 222, 520 N.E.2d 302 (1988). Stare decisis cannot be applied to the discipline imposed on attorneys in these cases. In re Howard, 69 I11.2d 343, 372 N.E.2d 371 (1978).  (Top of Page)

B. Disbarment

The Court may disbar a lawyer either with or without his consent. In Illinois, disbarment is not permanent absent extraordinary circumstances. If a lawyer is disbarred on consent pursuant to Supreme Court Rule 762(a), he may petition the Court for reinstatement after a period of three years. If the attorney is involuntarily disbarred, he may petition the Court for reinstatement after the expiration of five years. There is one case in which a disbarred lawyer, in order avoid a jail sentence for his violation of the disbarment order, agreed that he would never petition for reinstatement. As a result, his disbarment became permanent. In re Ruther, M.R. 4972 (1988).

The Court has held that disbarment is warranted under various circumstances. For example, the Court has stated that "disbarment is the proper sanction where an attorney has engaged in such misconduct as forging negotiable instruments belonging to clients, defrauding clients, and failing to make restitution or making restitution only after disciplinary proceedings were commenced." In re Solomon, 118 I11.2d 286, 515 N.E.2d 52 (1987). In another case the Court held that participating in and facilitating an extortion scheme perpetrated against one's client by a public official warrants disbarment, notwithstanding the respondent's pervious professional accomplishments. In re Rosenthal, 73 I11.2d 46, 382 N.E.2d 257 (1978). A gross violation of an attorney's oath, such as conversion of client funds, absent mitigating circumstances also warrants disbarment. In re Rotman, 136 I11.2d 401, 556 N.E.2d 243 (1990).  (Top of Page)

 C. Suspension

An attorney may be suspended from the practice of law for misconduct. The suspension may take one of various forms. A lawyer may be suspended for a specified period of time. When that occurs, the attorney is automatically reinstated to the practice of law after the expiration of that period of time. An attorney may be suspended for an unspecified period of time and until further order of Court. An attorney may also be suspended for a specified period of time and until further order of Court. In either case, the attorney is required to petition to the Court for reinstatement under Supreme Court Rule 767 in order to be reinstated. If the attorney is suspended for a specified period of time and until further order of the Court, he may not petition for reinstatement until the expiration of the specified period of time. The Court may also suspend a lawyer for a specified period of time and condition his or her reinstatement on a certain event or the fulfillment of a certain requirement, but not require a formal reinstatement proceeding under Rule 767. The most common example of this is when an attorney is suspended for a period of time and until he has shown that he has made restitution to any person to whom it is owed. In re Webb, 105 Il1.2d 360, 475 N.E.2d 523 (1985), In re Goldstein, 103 Ill. 2d 123, 468 N.E.2d 1959 (1984).

A suspension for a period of time and until further order is warranted in situations where the Supreme Court is concerned that, at the end of the suspension, a lawyer may not be fit to resume the practice of law. The Court has held that a suspension until further order of Court allows it to protect the public from the recurrence of the attorney's misconduct and to give the attorney a chance to rehabilitate himself and demonstrate to the Court that he is rehabilitated. In re Bourgeois, 25 Il1.2d 47, 182 N.E.2d 651 (1962). The Court has also imposed this sanction in cases of emotional impairment. In its opinion in In re Feder, 93 Il1.2d 48, 442 N.E.2d 912 (1982), the Supreme Court stated that the provision "until further order of the court" is generally reserved for situations in which the attorney is emotionally unstable. See also, In re Guilford, 115 Il1.2d 495, 505 N.E.2d 342 (1987). The Court has also imposed a suspension until further order when it perceived that it needed to protect the public against the respondent's behavior which was unexplained and potentially dangerous, In re Levinson, 71 Il1.2d 486, 376 N.E.2d 998 (1978), and when the respondent had shown a pattern of inattention to his practice over a period of time. In re Wieloch, M.R. 2804 (1982).  (Top of Page)

In another case, while a Review Board recommendation of a two year suspension was pending before the Court, the Administrator filed a motion requesting that the Court order that the suspension continue until further order. The motion alleged a number of matters pending before the ARDC which demonstrated a continuing pattern of neglect, improper handling of client finds and failure to respond to ARDC inquiries. The Court found that the respondent's conduct was not an isolated occurrence and that a showing of rehabilitation was necessary prior to the end of the suspension to adequately protect the public and the integrity of the profession. The Court suspended the respondent for two years and until further order. In re Pass, 105 Il1.2d 366, 475 N.E.2d 525 (1985). In another case, the Court held that failure to make restitution and "the lack of any evidence that [the respondent] is willing or able to meet professional standards of conduct in the future warrant suspension until further order of the court." In re Houdek, 113 Il1.2d 323, 497 N.E.2d 1169 (1986).

D. Admonishment, Reprimand, Censure

In its introductory statement to its amendments to certain Supreme Court Rules, adopted on October 13, 1989, the Supreme Court stated that it did not intend the enumeration of types of discipline in Rule 771 to curtail the power of the boards of ARDC or of the Court to deliver private admonitions to attorneys in cases in which, given the evidence, a more severe sanction does not appear to be warranted, but an attorney should be made aware that his or her conduct was improper. As a result, the Inquiry, Hearing and Review Boards have the authority to deliver private admonitions to attorneys in addition to recommending Supreme Court action. A reprimand, however, may only be administered by the Hearing Board, Review Board or the Supreme Court. Only the Supreme Court may censure an attorney for misconduct.

It is difficult to identify a meaningful distinction between an admonition, reprimand or censure by the Hearing Board, Review Board or the Supreme Court. All disciplinary action taken by those bodies is public. Neither an admonishment, reprimand or censure results in the loss of the lawyer's ability to practice law. An admonition by the Inquiry Board, however, is private and confidential. It is the only form of discipline that the Supreme Court has authorized Inquiry Board to administer. Consequently, it is the only form of discipline, other than the informal probation authorized by Commission Rule 108, that is private and confidential.  (Top of Page)

E. Probation

The Supreme Court may also place an attorney on probation. The requirements for probation are identified by the Supreme Court in Rule 772. Pursuant to that rule, probation may be ordered for a specified period of time or until further order in conjunction with a suspension which may be stayed in whole or in part. In order to qualify for probation, the attorney must demonstrate that he:

1. can perform legal services and the continued practice of law will not cause the courts or profession to fall into disrepute;

2. is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;

3. has a disability which is temporary or minor and does not require treatment and transfer to inactive status; and

4. is not guilty of acts warranting disbarment.

Any order placing an attorney on probation will contain the conditions of the probationary program. Under Supreme Court Rule 772, the conditions are to reflect the nature and circumstances of the misconduct, and the history, character and condition of the attorney. Among the conditions which may be imposed in a probationary order are:

        1. periodic reports to the Administrator;

        2. supervision over trust accounts;

        3.satisfactory completion of a course of study; successful completion of the multi-state professional responsibility examination;

        5. restitution;

        6.compliance with income tax laws and verification of such to the Administrator;

        7. limitations on practice;

        8. psychological counseling and treatment;

        9.the abstinence from alcohol or drugs; and

        10. the payment of disciplinary costs.

The Administrator of the ARDC is responsible for supervising any attorney placed on probation. The Administrator may recommend modification of the conditions of probation to the court at any time during the probationary period. The Administrator is authorized to report to the Supreme Court any failure to comply with the conditions of probation by the attorney. If the Administrator demonstrates to the court the failure of the lawyer to comply with the conditions of probation, the Court may issue a rule to show cause why probation should not be revoked and the stay of suspension vacated. See, for example, In re Kruger, M.R. 6145 (1990).  (Top of Page)

 IV. STRUCTURE OF THE ARDC

A. The Commission

A seven-member Commission directs the operation of the ARDC. The Supreme Court of Illinois appoints the Commissioners to serve three-year terms. Four of the Commissioners are lawyers; three are nonlawyers. The Commissioners are not compensated for their service, but may be reimbursed for costs incurred in serving as Commissioners.

The duties of the Commissioners are set forth in Supreme Court Rule 751(e). Generally, the Commissioners act as a board of directors overseeing the operation of the Commission. The Commissioners appoint, supervise and set the salary of the Administrator, who serves as the principal executive officer of the ARDC. The Supreme Court must approve the appointment of the Administrator. The Commissioners are also authorized to make rules for disciplinary proceedings so long as they are consistent with the Rules of the Supreme Court. The Commissioners are responsible for the collection and administration of the disciplinary fund, which consists of the registration fees paid by Illinois attorneys. The Supreme Court Rules require that the disciplinary fund be audited on an annual basis by an independent auditor and that the Commissioners submit to the court an annual report evaluating the effectiveness of the ARDC and accounting for the disciplinary fund. The Commissioners also appoint the members of the Inquiry Board and Hearing Board and are required to develop a training program for new members of the Inquiry Board.  (Top of Page)

B. The Administrator

The Administrator is the chief executive officer of the ARDC. Supreme Court Rule 752 sets forth the duties of the Administrator. The primary duty of the Administrator is to investigate and prosecute attorneys whose conduct tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Administrator may initiate an investigation into the conduct of an attorney on his own motion, on the recommendation of the Inquiry Board, or at the request of a member of the public. The Administrator is also authorized to assist the Inquiry Board in its investigations and to prosecute disciplinary cases before the Hearing Board, the Review Board, and the Supreme Court.

The Administrator maintains two offices: one in Springfield, and one in Chicago. The investigations of Illinois attorneys are divided between these two offices. Investigations of lawyers who practice law in Boone, Carroll, Cook, DeKalb, DuPage, Jo Davies, Kane, Kendall, Lake, Lee, McHenry, Ogle, Stephenson, Whiteside, Will and Winnebago counties are conducted out of the Chicago office. Investigations of lawyers who practice law in the other counties are conducted out of the Springfield office. The division is a practical consideration and is not cast in stone. Sometimes circumstances cause proceedings which would normally be conducted in one of the ARDC offices to be conducted in the other.

The Administrator, assisted by the Deputy Administrator, implements the policies established by the Commissioners and oversees the day-to-day operation of the office. The

Administrator also supervises the administrative functions of the office such as office management, computer services, registration of attorneys and the clerk's office. The Administrator's legal staff, which includes more than 25 attorneys, conducts the investigations and prosecutions.

The records of ARDC proceedings are maintained by the Clerk of the ARDC, with whom all documents of record are filed. These documents include all records related to pending and closed prosecutions before the Hearing Board and Review Board. The Clerk also maintains closed investigative files of the ARDC, until these files are destroyed. The record-keeping system of the ARDC is completely computerized. As a result, even after a file is destroyed, the ARDC is able to maintain a record of what occurred in a particular matter. There is currently no provision for the expungement of any of the Administrators records.

C. The Inquiry Board

Pursuant to Supreme Court Rule 753(a), the Inquiry Board is authorized to review investigations conducted by the Administrator, investigate matters referred by the Administrator and decide whether to file a formal complaint or petition against a respondent. The Commissioners appoint the members of the Inquiry Board to serve one-year terms. Board members are selected from persons who have expressed to the ARDC an interest in serving on the Board. The selection process historically has involved a personal interview with at least one of the Commissioners. The Board members serve without compensation, although the Commission reimburses them for costs such as travel expenses. The Board acts in panels of three persons. Two of the panel members are lawyers; the third is a nonlawyer. The Commission designates one of the three persons on each panel as chair of the panel. The majority of a panel constitutes a quorum. The concurrence of a majority, two members, is necessary for a decision.  (Top of Page)

D. The Hearing Board

Pursuant to Supreme Court Rule 753(c), the Hearing Board conducts hearings on the formal complaints filed against attorneys by the Administrator and on petitions referred to the Board. The hearings are conducted according to the practice in civil cases as modified by the rules promulgated by the Commissioners.

Members of the Hearing Board are appointed by the Commissioners to serve one-year terms. Generally, they are selected from the more senior members of the Inquiry Board. They, too, serve without compensation, but are reimbursed for costs incurred. Each Board member must be an attorney. The Board acts in panels of three persons. One of the three persons on each panel is designated by the Commissioners as chair of the panel. The majority of a panel constitutes a quorum. The concurrence of a majority is necessary for a decision. Matters before the Hearing Board are public once the Respondent is served with a copy of the Complaint. Supreme Court Rule 766(a).

Decisions of the Hearing Board may be reviewed by the Review Board or referred directly to the Supreme Court as agreed matters.

E. The Review Board

Pursuant to Supreme Court Rule 753(d), the Review Board functions as an appellate court. It reviews reports and recommendations of the hearing panels, but only if the respondent or the Administrator files "exceptions" to the Hearing Board report and recommendation. Both the Administrator and the respondent may file exceptions in the Review Board as a matter of right.

Members of the Review Board are appointed by the Supreme Court to serve three-year terms. They receive no compensation for their service, but are reimbursed for costs. The Board consists of nine members, all of whom are attorneys. One of the nine members is designated by the Court as the chair. Five members of the Board constitute a quorum and the concurrence of five members is necessary for a decision.

Decisions of the Review Board may be reviewed, adopted or modified by the Supreme Court, in its discretion.  (Top of Page)

V. PROCEDURES OF THE ARDC

A. Rules of Procedure

The procedures by which the investigations and prosecutions of the ARDC are conducted are guided in the first instance by the Supreme Court Rules. Supreme Court Rule 753 sets forth the basic rules of the Inquiry, Hearing, and Review Boards. The Supreme Court Rules authorize the Commissioners to make rules for disciplinary proceedings not inconsistent with the rules of the Supreme Court. In 1973, the Commissioners adopted a set of rules which set forth the procedures to be followed in disciplinary proceedings. These rules have been amended from time to time. It is important to be aware of the most recent changes in the Commission's procedural rules so that the respondent is not at a disadvantage in an ARDC proceeding.

B. Investigations by the Administrator

1. Determining Whether to Investigate

The Administrator may investigate the conduct of attorneys on his own motion, on the recommendation of an Inquiry panel, or at the instance of an aggrieved party. Supreme Court Rule 752. Investigations initiated on the Administrator's own motion may be based upon information from any source. Dis. Com. R. 51. These sources have historically included newspaper articles, opinions from tribunals, criminal and civil court records, and other sources.

The Commission rules identify a "charge" as any information which may constitute an allegation of misconduct. A charge is any written or oral communication that contains facts which, if true, might tend to establish that an attorney has violated a provision of the Rules of Professional Conduct. Charges received by the Administrator should be in writing and identify the attorney who is alleged to have engaged in misconduct and the person making the charge. The charge must be sufficiently clear to apprize the attorney of the misconduct alleged. The attorney who is alleged to have engaged in misconduct or is under investigation by the Administrator is called the "respondent."

The rules provide that the Administrator is not required to investigate any charge that does not meet the requirements of the rules, although the Administrator may exercise his discretion to so investigate. A charge of misconduct that is not in writing or is from an anonymous source need not be investigated, although the Administrator may investigate such a charge at his discretion. The Administrator may investigate any charge that can be investigated through sources of information other than the anonymous complainant, notwithstanding the lack of any written request that he investigate or the anonymity of the source of information.

The Administrator and his staff may provide assistance to persons desiring to make a charge against an attorney. The rules provide that the Administrator may furnish a form for that purpose. The current form is entitled "Request for an Investigation." The title of the form reflects the fact that the person bringing the charge does not have the authority to compel an investigation. A complainant is one who provides information to the ARDC and may be called as a witness before the Inquiry and Hearing Boards. The Commission Rules impose a duty on the Administrator to notify complainants of actions taken by the ARDC in matters brought to the Administrator's attention by the complainant. Supreme Court Rule 775 confers on complainants immunity from civil liability for their communications with the ARDC.

By adopting Rule 775 in 1989, the Supreme Court settled the question left unanswered by the appellate court in Alswang v. Clayborn, 40 Ill. App.3d 147, 351 N.E.2d 285 (1976). There, the appellate court dismissed a complaint filed by an attorney against his former client for malicious prosecution arising out of the client's complaint to the ARDC. The dismissal was predicated on the failure to allege the special injury required for a recovery for malicious prosecution. The Court did not decide the issue of whether an absolute privilege attaches to a complaint to the ARDC. In the underlying disciplinary proceeding, the Inquiry Board had initially dismissed Mrs. Clayborn's complaint against Mr. Alswang. Because proceedings before the Inquiry Board were confidential, the appellate court held that there could have been no damage to the respondent's professional reputation.  (Top of Page)

After Mr. Alswang filed his malicious prosecution action against Mrs. Clayborn, the Inquiry Board reopened its investigation of her complaint, which alleged that he charged an improper contingent fee in a divorce case. The Inquiry Board voted to file a formal complaint against Alswang. The Administrator then filed a complaint in the Hearing Board alleging that both the fee and the malicious prosecution action constituted improper conduct. The Hearing Board recommended that the respondent be suspended for one year solely for filing the malicious prosecution action against his former client. The Review Board recommended that he be censured for that conduct. The Supreme Court, however, dismissed the case, holding that a lawyer should not be disciplined for filing an action open to the general public. In re Alswang, 71 I11.2d 203, 375 N.E.2d 126 (1978). Now that complaints to the ARDC are protected by a grant of immunity, the Court could reach a different conclusion in a similar case.

When a communication received by the ARDC includes facts that may constitute an allegation of misconduct, the Administrator will initiate an investigation of the matter. The term "misconduct", as noted above, is defined as behavior of an attorney which violates the Illinois Rules of Professional Conduct, or which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute. A disciplinary investigation typically results from a complaint to the ARDC by an unhappy client.  (Top of Page)

Upon receipt of any written communication by the Administrator's office, the staff directs the document to the docketing department which is part of the Clerk's office. The docketing clerk assigns the matter to one of the Administrator's attorneys. If the attorney determines that the written communication lacks any information that may be the basis for an investigation, the matter is closed. In cases where counsel for the Administrator has determined that an investigation is not warranted, counsel notifies the attorney and the complainant that the ARDC has considered the matter and has decided to take no action.

2. Initiation of an Investigation

If counsel for the Administrator determines that the matter should be investigated, the investigation typically commences with a letter to the attorney whose conduct is the subject of the investigation requesting that he provide a letter to the ARDC within fourteen days containing all material facts related to the matter identified in the charge. Attached to the Administrator's letter is a copy of the written communication which led the Administrator to initiate the investigation. The letter typically states that a copy of the attorney's response will be sent to the complainant for his or her comment.

The Administrator also notifies the complainant that he has received the communication and that the complainant will receive a copy of the lawyer's response. The complainant is also sent a copy of the Commission's brochure entitled "How the Commission Responds to a Request for an Investigation of an Attorney," which advises that the purpose of disciplinary proceedings is not to cause an attorney to take corrective action as desired by a client or member of the public. Moreover, complainants are cautioned not to expect to receive any money or reimbursement of loss as a result of a disciplinary proceeding. They are also notified that the ARDC cannot provide legal advice or legal service to the complainant or member of the public and that the ARDC is unable to intervene on their behalf in any legal matter.

The brochure informs complainants that the ARDC has no authority to settle disputes over fees between lawyers and their clients. It notes that fee matters are not ordinarily a basis for attorney discipline because they usually do not involve questions of professional misconduct. As an alternative to court action to resolve a fee dispute, the brochure suggests that the client contact a local bar association if it has a fee dispute committee to attempt to resolve the fee dispute by arbitration.  (Top of Page)

On occasion, the fee dispute may involve a question of professional misconduct. In those cases, the ARDC will investigate the matter. The Illinois Supreme Court has held, for example, that "where there is an unconscionable fee fixed in an attorney-client agreement, the matter is subject to action by the Attorney Registration and Disciplinary Commission." In re Kutner, 78 Il1.2d 157, 399 N.E.2d 963 (1979). In that opinion, the Court cited the Supreme Court of Washington in In re Greer, 61 Wash.2d 741, 380 P.2d 482 (1963), for the proposition that where "ethical considerations take us from one end of the spectrum marked 'reasonable' through categories designated successively as unreasonable, excessive, immoderate, inordinate, exorbitant, and unconscionable, we move in a direct line from the civil arena into a disciplinary forum." In Kutner, the Supreme Court censured the respondent for charging a $5,000 fee for representing a defendant in a routine battery case that never went to trial. The Court characterized the fee as "not only excessive, but unconscionable." In In re Teichner, 104 Il1.2d 150, 470 N.E.2d 972 (1984), the Court disciplined an attorney for, among other things, attempting to collect a contingent fee out of the proceeds of a routine payment of a claim made by his client on an insurance policy when the payment did not result from a "settlement" or "judgment." In Teichner, the Court stated that its holding in Kutner applied "with equal force to contingent-fee agreements, with the contingent nature of the contract serving as an additional factor to be considered in determining the reasonableness of the fee charged." The Court stated further that it considered it to be not only the prerogative, but the duty of the Court "to guard against the collection of an excessive fee." More recently, in In reGerard, 132 Il1.2d 507, 548 N.E.2d 1051 (1989), the Court held that the collection of a contingent fee for a recovery not achieved through settlement or litigation not only violates the prohibition against charging and collecting an excessive fee, but also may, in and of itself, constitute fraud. The Court suspended the respondent in Gerard for one year.  (Top of Page)

3. Responding to the Administrator

An attorney's initial contact with the disciplinary process usually occurs upon receipt of a letter from the Administrator enclosing a copy of a complaint and requesting a response to the charge within 14 days. Many lawyers react emotionally to such a letter. They may feel angry and betrayed by a client they felt they had served well. They feel hostile toward the complainant as well as toward the Administrator and his staff. A lawyer, however, should avoid responding to the Administrator's request in an emotional and hostile manner. Sometimes it is helpful to put the matter aside for a day or two and to allow feelings to cool down. Sometimes a respondent is unable to put aside his feelings and draft a rational response to the Administrator. In those cases, it may be helpful to ask another lawyer for assistance in drafting a response.

Regardless of how the respondent feels, it is important that a response be submitted to the Administrator. Commission Rule 53 imposes on attorneys a duty to respond to any written request by the Administrator for information regarding any matter under investigation, and failure to respond is dangerous. In several opinions, the Illinois Supreme Court has disciplined attorneys for their failure to cooperate with the ARDC. In In re Johnson, 133 Il1.2d 516, 552 N.E.2d 703 (1989), the court suspended an attorney, in part, for his refusal to provide information requested by the Administrator. The court held that "[t]he respondent's obstinacy in response to the Administrator's repeated requests for cooperation constitutes conduct which tends to defeat the administration of justice and to bring the courts and the legal profession into disrepute." In that case, the Court ruled that a respondent has a "fundamental obligation as an attorney to cooperate with the Administrator in the investigation of possible acts of attorney misconduct." In In re Brody, 65 Il1.2d 152, 357 N.E.2d 498 (1976), the respondent failed to respond to the Administrator's several requests for a response and failed to cooperate with the Administrator and the Inquiry Board. The Court suspended the respondent for one year, noting his "complete want of professional responsibility in ignoring the almost excessively patient requests of the Attorney Registration and Disciplinary Commission for his cooperation in regard to the complaint filed against him. The attitude displayed was one of indifference toward or even contempt for disciplinary procedures."

In a recent case in which a lawyer was disbarred for misconduct including neglect of three criminal appeals and conversion of the proceeds of a bond refund check, the Court stated: "we are particularly disturbed by respondent's contempt for the disciplinary process and for this Court" which respondent demonstrated by "impeding the Commission's efforts to investigate the charges against him at the inquiry stage." The Court concluded that it could not permit this respondent to continue to practice law and thereby "invite the public to retain the purported services of one to whom the common obligations of the profession mean so little." In re Levin, 118 Il1.2d 77, 514 N.E.2d 174 (1987).

The Court summarized its attitude toward the duty of attorneys to cooperate with the ARDC in In re Zisook, 88 Il1.2d 321, 430 N.E.2d 1037 (1982):

"Inasmuch as an attorney is an officer of this court and is licensed by this court to exercise the privilege of practicing law, an attorney has an obligation to cooperate with this Court and its agency, the Attorney Registration and Disciplinary Commission, in the performance of its duty to police the legal profession in this State."

The Court has shown that it takes seriously the duty it imposes on attorneys to cooperate with the ARDC. It is, therefore, important to respond to the Administrator's requests for information promptly and completely.

A respondent's initial letter to the Administrator regarding a matter under investigation is the first critical step in the defense of a disciplinary proceeding. At that point, a respondent may not know specifically what the Administrator's concerns are. They are very seldom set forth in the Administrator's letter and may have to be discerned from the content of the written communication attached to the Administrator's letter. The complainant sometimes has the ability to set forth his concerns in a cogent manner. Frequently, though, complainants are not articulate. Even a complainant who communicates well may have identified a dozen or more matters of concern to him. The Administrator may be concerned about one or some or all of those. The Administrator may also be concerned about things not identified by the complainant. The only thing the respondent typically knows is that the Administrator has received a written communication, that the Administrator saw fit to initiate an investigation and that the Administrator sent a letter to the respondent asking for all material facts related to that charge.  (Top of Page)

Because it may be difficult to identify with precision the Administrator's concern, the response submitted by the attorney may fail to address important matters about which the Administrator is concerned. The attorney's response also may raise new concerns by providing information that brings to the Administrator's attention other conduct in which the respondent engaged.

Sometimes the conduct under investigation may give rise to civil or criminal liability. Admissions made to the ARDC Administrator by the respondent and documents obtained by the Administrator pursuant to a subpoena may be disclosed to state or federal authorities by the Administrator. As a result, a response to the Administrator's request for information should be drafted with those issues in mind. If it appears that such liability might arise from the conduct under investigation, it is beneficial to consult an attorney with experience in legal malpractice or in criminal law as well as disciplinary law before responding.

A response to the Administrator, then, is critical for two reasons. First, it may raise new concerns that were not part of the original complaint and were not the Administrator's concerns initially. Second, it may contain admissions that may later be held against him. If those admissions or representations are not totally accurate or true, the lawyer may be liable for disciplinary action based upon them.

For these reasons, the respondent's letter to the Administrator is a document that should be taken seriously. It is never a waste of time to ask another attorney, particularly one who has experience in disciplinary matters, to review the response before it is sent to the Administrator. It is a serious mistake to ignore the Administrator's request for information. In some cases, it is a mistake not to retain experienced legal counsel at the outset of the ARDC investigation. (Top of Page)

4. Compulsory

The Administrator initially attempts to obtain information from a respondent on a voluntary basis. The Administrator may write one or more letters to the respondent requesting information. If the Administrator does not receive a response, the Administrator has the authority to issue a subpoena compelling the appearance, testimony, and production of records of that attorney.

Under Illinois Supreme Court Rule 754, the Administrator, the Inquiry Board, and the Hearing Board are all empowered to take and transcribe the evidence of respondents and any other attorney or person who might have knowledge of the pertinent facts surrounding any matter which is the subject of an investigation or hearing. The Clerk of the Supreme Court of Illinois issues the subpoenas returnable before the Administrator or one of the Boards, both ad testificandum and duces tecum. Failure to comply with one of these subpoenas results in a report to the Supreme Court that the attorney or other person has failed to either testify or produce the items specified in the subpoenas. These proceedings are characterized as indirect civil contempt proceedings because their purpose is not to punish for past contemptuous conduct, but to compel future compliance with the Court's process.

5. Confidentiality of Investigations

Under Supreme Court Rule 766, investigations conducted by the Administrator are private and confidential. As a result, the Administrator may not disclose, release, or report any information in the Administrator's possession. While a complainant does not have a right under the rules to review the Administrator's file or to have access to materials contained in the file, counsel for the Administrator routinely provide complainants with information and documentation provided by respondents.

Respondents have had access-to the Administrator's file of any pending investigation of their conduct. It has been the policy of the Commission that a respondent is entitled to know what information is contained in the file and to review the Administrator's file upon request at a time convenient to both the Administrator's staff and the respondent or his attorney. It is frequently helpful for a respondent or his attorney to review the Administrator's file before the initial response is prepared or at some point during the investigation if the investigation is not closed within 90 days.

Prior to October 13, 1989, a respondent had the ability under Rule 766 to make public disciplinary proceedings related to his own conduct. That provision of Rule 766 has since been deleted. As a result, proceedings such as investigations by the Administrator or the Inquiry Board are confidential regardless of the respondent's wishes. In fact, it is possible that the Administrator may deny to a respondent access to a file related to a closed investigation. Neither the Supreme Court nor the Commission Rules bestow on a respondent a right to review materials related to a closed investigation.  (Top of Page)

The confidentiality required by Rule 766 might prohibit respondents and complainants from disclosing to others the fact that an ARDC investigation exists. In one disciplinary case, the Supreme Court censured an attorney, in part, for disclosing to a judge in a public proceeding the confidential investigation of another attorney by the Inquiry Board. The attorney who made the disclosure was also the person who complained to the ARDC of the other attorney's conduct. In re Duff, M.R. 5283 (1989).

6. Continuing Attorney-Client Relationship

Some attorneys have expressed the belief that, when one of their clients complains about their conduct to the ARDC, the attorney-client relationship terminates or, even if it continues, they are unable to proceed on behalf of that client during the pendency of the disciplinary proceeding. The rules of the Supreme Court and the ARDC contain no provision that requires the termination of an existing attorney-client relationship whenever a client complains to the ARDC. In many cases, clients complain to the ARDC because of a misunderstanding, an unrealistic expectation that is not met, a lack of communication or perceived inactivity by their attorney. The last thing they want is a termination of their relationship with their attorney. They really want their attorney to continue representing them, but with a greater degree of communication or more visible activity by the attorney.  (Top of Page)

Sometimes, however, a client may have taken a position so adverse to his attorney that a conflict of interests is created and the attorney may be required to withdraw from his representation of the client. When the filing of a complaint "undermines the mutual trust and confidence essential to the attorney-client relationship," the attorney has good cause to withdraw from his representation of the client. Reed Yates Farm, Inc. v. Yates, 172 Ill.App.3d 519, 526 N.E.2d 1115 (1988).

If the attorney does not withdraw, however, he must be careful to discharge fully any duty he owes to his client. In In re Freel, 89 Il1.2d 263, 433 N.E.2d 274 (1982), a respondent was censured for commingling, failure to respond to a client's inquiries concerning funds and refusal to turn over the amount believed due and owing to the client. The respondent erroneously believed that it was improper for him to settle the dispute with his client over the funds after the complaint was filed with the ARDC. The Court held that the pendency of a charge at the ARDC does not suspend a lawyer's duties to his client. The Court also stated that the attorney should have known that the ARDC had no jurisdiction to issue orders concerning the disbursement of client funds.

7. Closure of an Investigation

Typically, an investigation that lacks merit, even though the complaint contained facts which led the Administrator to inquire, should be concluded within about 90 days. This assumes that all of the issues raised in the initial charge and all of the Administrator's concerns were addressed by the respondent in his written response in a prompt and complete manner. If the attorney's response is incomplete or does not address the Administrator's concerns, the Administrator may then request that the respondent address additional matters. The Rules, however, do not require the Administrator to identify his concerns in writing. Typically, though, if the Administrator has additional concerns or if the complainant raises new matters or has additional concerns, those will be communicated to the respondent.

Once all concerns have been addressed, counsel for the Administrator may determine that no further action is warranted and ask the Administrator to dose the investigation. Under Commission Rule 54, the Administrator is authorized to close an investigation if he concludes that there is insufficient evidence to establish that the respondent has engaged in misconduct. If the Administrator concludes an investigation by closing it, counsel for the Administrator then writes a letter to the complainant, if there is one, setting forth the basis for dosing the investigation. The respondent also receives a letter notifying him or her that the investigation has been closed. The Administrator's letter to the respondent, however, does not set forth the basis for the closure. It merely notifies the respondent that the Administrator will take no further action at that time.

Closure of an investigation by the Administrator typically concludes the matter, but does not bar the Administrator from resuming the investigation if warranted under the circumstances. Dis. Com. R. 51. On occasion, a complainant will disagree with the Administrator's closure. If the Administrator reviews any subsequent correspondence and determines that further investigation is warranted, the Administrator may reopen the investigation. A complainant, however, cannot compel the Administrator to reopen an investigation. Complainants have petitioned the Supreme Court to compel the Administrator to investigate the matter further. The Court presumably has the authority to order the Administrator to reopen an investigation. In Michigan, the United States Court of Appeals for the Sixth Circuit held that a member of the public does not have a constitutional right to compel the state disciplinary authority to investigate his charge of attorney misconduct. Saier v. State Bar of Michiga, 293 F.2d 756 (6th Cir. 1961).  (Top of Page)

One of the duties of the seven Commissioners under Supreme Court Rule 751(e) is to review samples of investigative matters closed by the Administrator. The rule does not provide that the Commissioners may order an investigation to be reopened but, because the Commissioners supervise the activities of the Administrator, it is conceivable that it may happen.

8. Referral to the Inquiry Board

When the Administrator concludes that there is sufficient evidence to establish that the respondent engaged in misconduct, the Administrator refers the investigation to the Inquiry Board. Dis. Com. R. 55. Matters may be referred to the Inquiry Board for other reasons as well. Those reasons are not specified, but Rule 55 provides that if the Administrator believes that consideration by the Inquiry Board is warranted for any reason, the Administrator may refer the matter to the Board. If the Administrator refers a matter to the Inquiry Board, the complainant and the respondent are notified of that referral. Typically, however, counsel for the Administrator does not set forth in the notice the reason for the referral or identify the concern that caused him to refer the investigation to the Board.

C. Proceedings Before the Inquiry Board

1. Investigation by a Panel of The Board

The Inquiry Board is authorized by the Supreme Court to investigate matters the Administrator refers to it, to initiate investigations on its own motion, and refer matters to the Administrator for investigation. Supreme Court Rule 753(a).

Under Supreme Court Rule 752, the Administrator is required to assist the Inquiry Board in its investigations. The Commission rules provide that the Administrator prepares an agenda in advance for each meeting of the Inquiry panels. Counsel for the Administrator also maintains the minutes of those meetings, indicating the disposition of each investigation on the agenda, whether a complaint shall be voted, the investigation dismissed, the investigation closed, or the matter continued for further action. Under Commission Rule 108, the Administrator is responsible for the supervision of the conditions imposed on respondents by the Inquiry Board. The Administrator provides the Board with reports on an attorney's compliance with the Board's conditions and may, with notice to that attorney, recommend to the Board modifications of those conditions. The Administrator reports to the Board, with notice to the attorney, any failure to comply with the conditions or to cooperate with the Administrator.

In practice, each of the panels of the Inquiry Board is assisted by one of the counsel employed by the Administrator. The Administrator's counsel periodically refers investigations to the panel of the Inquiry Board to which he or she is assigned. In almost every case, counsel for the Administrator has already conducted an investigation of the charge and has identified an area of concern for the panel to review. It is the Administrator's practice that when a matter is referred to a panel of the Inquiry Board, counsel for the Administrator identifies for the panel the reason for the referral. That reason is not required to be communicated to either the respondent or the complainant.  (Top of Page)

When an investigation is referred to the Inquiry Board, one of the three members of the panel receives a copy of the Administrator's investigative file. That panel member is responsible for reviewing the file and reporting on the investigation to the other two panel members. If counsel for the Administrator does not send a copy of the entire file to the panel member responsible for it, those items that were not included in the submission to the panel are identified in a memorandum to the panel member.

The rules do not require the panels of the Inquiry Board to meet with any specific frequency. Customarily, the panels meet once every four to six weeks. Counsel for the Administrator attends these meetings. Prior to the meeting, counsel prepares an agenda, a copy of which is sent to each panel member. The panel and counsel for the Administrator review each investigative file on the agenda or as many as they are able to review at the meeting. The panel members choose the meeting dates and times. The meetings are held at the Commission offices in Chicago or Springfield. At the meetings, the panel may decide that further investigation is needed and direct the Administrator to obtain information or supporting documentation or to interview witnesses. The Supreme Court and Commission rules do not limit the kinds of investigative activities in which the members of the Inquiry Board may engage.

2. Appearances Before The Inquiry Board

The Inquiry Board may request or compel the appearance of witnesses at its meetings, before individual panel members or before counsel for the Administrator. Typically, one or more persons will appear before the panel at each meeting. Most frequently these persons are the respondents under investigation, but they may also be complainants or other persons with information about an attorney's conduct. Persons appearing before the panel typically are provided an opportunity to make a statement. Such statements are usually made under oath, subject to questioning of the members of the panel and counsel for the Administrator. A court reporter is almost always present to take down the witness's testimony.  (Top of Page)

The Commission rules provide that the Inquiry Board may require the attendance of witnesses before it or one of its members, but the Board is not required to hear the testimony of witnesses. The Board may take and transcribe the evidence of respondents or any other person who may have knowledge of pertinent facts concerning any matter which is the subject of an investigation pending before the Board. Supreme Court Rule 754. It may direct that a subpoena be issued by the Clerk of the Supreme Court and served on such persons. Failure to comply with an Inquiry Board subpoena may result in a report of such failure to the Supreme Court and a civil contempt proceeding.

Although the Inquiry Board may take the testimony of witnesses and may require the production of documents pursuant to a subpoena duces tecum, the Inquiry Board may not determine the merits of a disciplinary charge or conduct adversary hearings. The function of the Inquiry Board is to investigate attorney misconduct and to determine whether further proceedings are warranted. In effect, the Inquiry Board makes a determination of probable cause: whether there is sufficient evidence of misconduct to warrant a formal disciplinary prosecution.

If the Inquiry Board is considering to vote that a formal complaint be filed in the Hearing Board, it must ensure that the respondent under investigation has had at least one opportunity to respond to the charge. Dis. Com. R. 105. This opportunity to respond may occur at any stage of the investigation by the Administrator or the Inquiry Board. This response may be in writing or in person. If the attorney has been afforded such an opportunity at any time, the panel is not required to afford him another. Frequently, however, an Inquiry panel will request the personal appearance of the attorney under investigation before it decides whether it will vote that a complaint be filed against him, even though such an opportunity to appear is not required.

If a respondent is requested to appear before an Inquiry panel, he should comply with that request. The panels make such requests only when they have identified a concern about the attorney's conduct or are considering to vote that a formal complaint be filed. An invitation or request to appear before a panel signifies another critical point in the disciplinary process. If the panel is concerned about a problem it perceives, this is the respondent's last opportunity to resolve the matter in a private and confidential proceeding.  (Top of Page)

It is not unusual for an attorney to appear before an Inquiry panel unrepresented and make admissions against his interest. As noted above, statements made by respondents before Inquiry panels are made under oath. The Administrator customarily uses these statements in subsequent disciplinary prosecutions before the Hearing Board. The Commission rules provide that if a respondent appears before a panel of the Inquiry Board or one of its members he may be represented by counsel. Respondents who appear before the Inquiry Board would be well advised to obtain counsel who is experienced in disciplinary proceedings. That attorney more likely will identify the concerns of the Administrator or the Inquiry Board and will render helpful advice to the respondent so that his appearance before the panel will result in a disposition most favorable to him.

3. Defer Proceedings For Remedial Action

Commission Rule 108 provides that the Inquiry Board may defer further proceedings under certain circumstances. These circumstances are not identified, but some considerations include the conduct under investigation by the Board, and the history, character and condition of the attorney under investigation. Rule 108 codifies the practice of the Inquiry Board to recommend that an attorney seek treatment or take remedial measures to address problems when formal disciplinary proceedings are not warranted. The rule, in effect, places the lawyer in a probationary program. Unlike the probation that may be imposed by the Supreme Court under Rule 772, the probationary program of the Inquiry Board pursuant to Rule 108 is private and confidential.

Commission Rule 108 requires that such a program be made with the agreement of the Administrator and the respondent. The rule also requires that, prior to the Inquiry Board determining to defer further proceedings, the respondent setting forth: panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi The nature of the conduct under investigation by the Inquiry Board,for furtherÏinquiry, it may notify the respondent of its action and request addias admitted by the respondent If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThe conditions to be imposed by the Inquiry Board or supervision offor furtherÏinquiry, it may notify the respondent of its action and request addithe respondent; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThat the respondent does not object to the conditions to be imposed; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi That the respondent understands that should he fail to comply with thefor furtherÏinquiry, it may notify the respondent of its action and request addiconditions imposed by the Inquiry Board, a formal complaint may befor furtherÏinquiry, it may notify the respondent of its action and request addivoted may be voted and filed with the Hearing Board If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThat the admissions made by the respondent with respect to his or herfor furtherÏinquiry, it may notify the respondent of its action and request addiconduct may be introduced as evidence in any further proceedingsfor furtherÏinquiry, it may notify the respondent of its action and request addibefore the Hearing Board; and  If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThat the respondent joins in the Inquiry Boardlls determination freelyfor furtherÏinquiry, it may notify the respondent of its action and request addiand voluntarily, and understands the nature and consequences of thefor furtherÏinquiry, it may notify the respondent of its action and request addiBoardlls action If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThe conditions that the Inquiry Board may impose include, following: If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiPeriodic reports to the Administrator; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiSupervision of the respondent's practice or accounting procedures; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiSatisfactory completion of a course of study, If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiSuccessful completion of the multi state professional responsibilityfor furtherÏinquiry, it may notify the respondent of its action and request addiexamination; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiCompliance with the provisions of the rules of professional conduct; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiRestitution; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiPsychological counseling or treatment; and If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiAbstinence from alcohol or drugs If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi panel reopensthe investigation for furtherÏinquiry, it may notify the respondent of its action and request addiRule 108 further provides that when the Inquiry Board determines that a lawyer hasfor furtherÏinquiry, it may notify the respondent of its action and request addicomplied with the conditions imposed, the Board is required to close any investigationsfor furtherÏinquiry, it may notify the respondent of its action and request addipending before it at the time it determined to defer further consideration. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi4. Discipline On Consent With Approval of the Inquiry Board If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If, while a matter is pending before the Inquiry Board, the Administrator and thefor furtherÏinquiry, it may notify the respondent of its action and request addirespondent agree that the respondent has engaged in misconduct and agree on thefor furtherÏinquiry, it may notify the respondent of its action and request addiappropriate discipline, the Administrator may petition the Supreme Court to impose thatfor furtherÏinquiry, it may notify the respondent of its action and request addidisciplinary sanction. Pursuant to Supreme Court Rule 762(b), the panel of the Inquiryfor furtherÏinquiry, it may notify the respondent of its action and request addiBoard before which the investigation was pending must approve such a petition. The Courtfor furtherÏinquiry, it may notify the respondent of its action and request addimay allow the petition and impose the recommended discipline. Otherwise, if the Courtfor furtherÏinquiry, it may notify the respondent of its action and request addidenies the petition, the investigation resumes as if no petition had been submitted, butfor furtherÏinquiry, it may notify the respondent of its action and request addibefore a different panel than the one that approved the petition. No admission in the petitionfor furtherÏinquiry, it may notify the respondent of its action and request addimay be used against the respondent. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi5. Conclusion of an Investigation by the Board If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi When an Inquiry panel concludes an investigation, it may close or dismiss thefor furtherÏinquiry, it may notify the respondent of its action and request addiinvestigation, admonish the respondent, or refer the matter to the Hearing Board for afor furtherÏinquiry, it may notify the respondent of its action and request addiformal disciplinary prosecution. As noted above, the Administrator may only close anfor furtherÏinquiry, it may notify the respondent of its action and request addiinvestigation or refer it to an Inquiry panel. The Administrator has no authority, unlike thefor furtherÏinquiry, it may notify the respondent of its action and request addiInquiry Board, to direct that a formal complaint be filed with the Hearing Board. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiAs noted above, Commission Rule 105 provides that, before a panel of the Inquiryfor furtherÏinquiry, it may notify the respondent of its action and request addiBoard votes to file a formal complaint in the Hearing Board, if the respondent was notfor furtherÏinquiry, it may notify the respondent of its action and request addipreviously afforded the opportunity to respond to a "charge," the respondent must befor furtherÏinquiry, it may notify the respondent of its action and request addinotified of the charge and of the fact that a complaint may be voted against him and givenfor furtherÏinquiry, it may notify the respondent of its action and request addian opportunity to make a statement before the panel or a member thereof If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiWhen the Inquiry panel votes to file a formal complaint against a lawyer, the panelfor furtherÏinquiry, it may notify the respondent of its action and request addidoes not identify specific allegations to be included in the complaint. It merely rules onfor furtherÏinquiry, it may notify the respondent of its action and request addiwhether the investigative file as a whole contains sufficient evidence of any misconduct to If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi

file a formal complaint against the respondent. It is left to counsel for the Administrator tofor furtherÏinquiry, it may notify the respondent of its action and request addidetermine what allegations of misconduct will be contained in the formal complaint. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request Counsel for the Administrator may allege in the complaint matters that thefor furtherÏinquiry, it may notify the respondent of its action and request addicomplainant did not raise in his initial "charge." The Administrator may have developedfor furtherÏinquiry, it may notify the respondent of its action and request addievidence of other misconduct during the investigation of the initial charge or the complainantfor furtherÏinquiry, it may notify the respondent of its action and request addimay have submitted subsequent correspondence containing charges that were not mentionedfor furtherÏinquiry, it may notify the respondent of its action and request addiin his initial charge. Therefore, counsel with disciplinary experience is invaluable to afor furtherÏinquiry, it may notify the respondent of its action and request addirespondent at this stage of the proceedings to review the ARDC file and identify areas offor furtherÏinquiry, it may notify the respondent of its action and request addipotential disciplinary liability which may need to be addressed. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request. The Commission Rules and Supreme Court Rules do not provide for a process offor furtherÏinquiry, it may notify the respondent of its action and request addiappealing the decision of the Inquiry Board. Commission Rule 101 provides, however, thatfor furtherÏinquiry, it may notify the respondent of its action and request addia panel may reconsider its decision to dismiss an investigation, to close an investigation, orfor furtherÏinquiry, it may notify the respondent of its action and request addito vote a complaint prior to the filing of the complaint with the Clerk of the ARDC. Thefor furtherÏinquiry, it may notify the respondent of its action and request addirules require that the Administrator notify the complaining witness of the Inquiry Board'sfor furtherÏinquiry, it may notify the respondent of its action and request addidecision. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request If the complainant is not satisfied with the decision of the panel to admonish afor furtherÏinquiry, it may notify the respondent of its action and request addirespondent or to close or dismiss an investigation, the complainant may request that thefor furtherÏinquiry, it may notify the respondent of its action and request addipanel reconsider its decision. The respondent may or may not be advised of thefor furtherÏinquiry, it may notify the respondent of its action and request addicomplainant's request for reconsideration. If the panel reopens the investigation for furtherfor furtherÏinquiry, it may notify the respondent of its action and request addiinquiry, it may notify the respondent of its action and request additional informationfor furtherÏinquiry, it may notify the respondent of its action and request addiregarding the concern which caused it to reopen the investigation. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request .  No other review procedure is identified in the rules. Complainants, on occasion, writefor furtherÏinquiry, it may notify the respondent of its action and request addito the Commissioners, the Supreme Court or a member thereof, requesting that thefor furtherÏinquiry, it may notify the respondent of its action and request addiCommissioners or the Court compel further investigation or that a complaint be filed againstfor furtherÏinquiry, it may notify the respondent of its action and request addithe respondent in the Hearing Board. There is nothing in the rules to suggest that thefor furtherÏinquiry, it may notify the respondent of its action and request addiCommissioners or the Supreme Court can overturn a decision made by the Inquiry Board.for furtherÏinquiry, it may notify the respondent of its action and request addiThe Supreme Court, however, has inherent authority over the conduct of attorneys and itsfor furtherÏinquiry, it may notify the respondent of its action and request addiauthority to discipline an attorney is not limited by a decision of the Inquiry Board. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiAn analogous situation occurred in the case of a petition for admission to the bar infor furtherÏinquiry, it may notify the respondent of its action and request addiwhich the Court refused to follow the recommendation of the Board of Law Examiners thatfor furtherÏinquiry, it may notify the respondent of its action and request addithe petitioner be admitted. In re Loss, 119 Il1.2d 186, 518 N.E.2d 981 (1987). In that case,for furtherÏinquiry, it may notify the respondent of its action and request addithe petitioner contended that Supreme Court Rule 708(c) required the admission to the barfor furtherÏinquiry, it may notify the respondent of its action and request addiof an applicant who was certified as fit by the Committee on Character and Fitness. The rule,for furtherÏinquiry, it may notify the respondent of its action and request addiat that time, provided that If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi[i]f the committee [on Character and Fitness] is of the opinion that the applicant is offor furtherÏinquiry, it may notify the respondent of its action and request addigood moral character and general fitness to practice law, it shall so certify to the Board offor furtherÏinquiry, it may notify the respondent of its action and request addiLaw Examiners and the applicant shall thereafter be entitled to admission to the bar. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThe Court rejected the petitioner's contention that certification by the Committeefor furtherÏinquiry, it may notify the respondent of its action and request addicreated an entitlement to admission and stated that If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi

may notify the respondent of its action and request addi[w]ere we to construe Rule 708(c) in the manner urged by petitioner we would face thefor furtherÏinquiry, it may notify the respondent of its action and request addiabsurd situation that, confronted with the record here, we were powerless to consider thefor furtherÏinquiry, it may notify the respondent of its action and request addicorrectness of the decision to certify and would be required to blindly admit petitioner. Thisfor furtherÏinquiry, it may notify the respondent of its action and request addidoes not comport with our duty to protect the People against incompetency and dishonestyfor furtherÏinquiry, it may notify the respondent of its action and request addion the part of members of the bar. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThe Court held that "[u]nfortunate language in the rule upon which petitioner reliedfor furtherÏinquiry, it may notify the respondent of its action and request addiwill not serve to divest this court of jurisdiction to perform its constitutional duty." It isfor furtherÏinquiry, it may notify the respondent of its action and request addiequally unlikely that the Court would hold that any rule regarding decisions of the Inquiryfor furtherÏinquiry, it may notify the respondent of its action and request addiBoard would divest it of jurisdiction to discipline members of the bar. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiD. Proceedings Before the Hearing Board If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi1. Initiation of Formal Proceedings If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiPursuant to Supreme Court Rule 753(c), the Hearing Board is authorized to conductfor furtherÏinquiry, it may notify the respondent of its action and request addihearings on complaints filed with the Board and on petitions referred to the Board. The vastfor furtherÏinquiry, it may notify the respondent of its action and request addimajority of hearings conducted by the Hearing Board are related to formal complaints filedfor furtherÏinquiry, it may notify the respondent of its action and request addiby the Administrator charging respondents with professional misconduct. These complaintsfor furtherÏinquiry, it may notify the respondent of its action and request addiare formal pleadings filed before the Hearing Board. They should not be confused withfor furtherÏinquiry, it may notify the respondent of its action and request addicharges submitted to the ARDC by disgruntled clients, which may provide the basis for anfor furtherÏinquiry, it may notify the respondent of its action and request addiinvestigation. Complaints allege facts that the Administrator believes constitute misconduct,for furtherÏinquiry, it may notify the respondent of its action and request addias well as the conclusion that such conduct violates specific sections of the Rules offor furtherÏinquiry, it may notify the respondent of its action and request addiProfessional Conduct, tends to defeat the administration of justice or tends to bring the courtsfor furtherÏinquiry, it may notify the respondent of its action and request addior the legal profession into disrepute. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiProcedurally, counsel for the Administrator drafts the complaint and names thefor furtherÏinquiry, it may notify the respondent of its action and request addiAdministrator as the charging party. If the conduct alleged in a complaint occurred prior tofor furtherÏinquiry, it may notify the respondent of its action and request addiAugust 1, 1990, the complaint alleges violations of the Illinois Code of Professionalfor furtherÏinquiry, it may notify the respondent of its action and request addiResponsibility which was in effect at that time. If the conduct occurred after August 1, 1990,for furtherÏinquiry, it may notify the respondent of its action and request addithe complaint alleges violations of the Illinois Rules of Professional Conduct. The complaintfor furtherÏinquiry, it may notify the respondent of its action and request addimay also allege that an attorney has engaged in misconduct recognized under common law,for furtherÏinquiry, it may notify the respondent of its action and request addisuch as conversion; In re Kitsos, 127 Il1.2d 1, 535 N.E.2d 792 (1989); In re Rotman, 136for furtherÏinquiry, it may notify the respondent of its action and request addiIl1.2d 401, 556 N.E.2d 243 (1990) and overreaching, In re Crane, 96 Il1.2d 40, 449 N.E.2dfor furtherÏinquiry, it may notify the respondent of its action and request addi94 (1988); In re Betts, 109 Il1.2d 154, 485 N.E.2d 1081 (1985). If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiSupreme Court Rule 753(b) requires that a complaint filed by the Administratorfor furtherÏinquiry, it may notify the respondent of its action and request addi"reasonably inform the attorney of the acts of misconduct he is alleged to have committed."for furtherÏinquiry, it may notify the respondent of its action and request addiThe Commission rules require that the complaint contain a concise statement of the factsfor furtherÏinquiry, it may notify the respondent of its action and request addiconstituting the alleged misconduct. Dis. Com. R. 211. The Supreme Court, however, hasfor furtherÏinquiry, it may notify the respondent of its action and request addiheld that the Complaint must contain sufficient, factual averments and state every factfor furtherÏinquiry, it may notify the respondent of its action and request addiessential to prove the specific charge of misconduct. In re Beatty, 118 Il1.2d 489, 517 N.E.2dfor furtherÏinquiry, it may notify the respondent of its action and request addi1065 (1987~. For example, in Beatty, the Court held that in order to plead that lawyersfor furtherÏinquiry, it may notify the respondent of its action and request addiknowingly made false statements in violation of Rule 8iry, it may notify the respondent of its action and request addi102 of the Code of Professionalfor furtherÏinquiry, it may notify the respondent of its action and request addiResponsibility (now Rule 8.2 of the Rules of Professional Conduct) the Administrator mustfor furtherÏinquiry, it may notify the respondent of its action and request addiallege the specific false statements, that the statements were made knowingly, and how thefor furtherÏinquiry, it may notify the respondent of its action and request addistatements were false. Because the Administrator had failed to make those specificfor furtherÏinquiry, it may notify the respondent of its action and request addiallegations, the court in Beatty dismissed the Complaint. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi

may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiIn a recent case, a respondent argued that the Administrator's complaint against himfor furtherÏinquiry, it may notify the respondent of its action and request addifailed to state a cause of action for a violation of Rule 1iry, it may notify the respondent of its action and request addi102(a)(4) which prohibits a lawyerfor furtherÏinquiry, it may notify the respondent of its action and request addifrom engaging in conduct involving dishonesty, fraud, deceit or misrepresentation (now Rulefor furtherÏinquiry, it may notify the respondent of its action and request addi8.4(a)(4)). The respondent claimed that the complaint was defective because it did not allegefor furtherÏinquiry, it may notify the respondent of its action and request addithe specific false statements made by him, his knowledge of the falsity of the statements, hisfor furtherÏinquiry, it may notify the respondent of its action and request addiintent to deceive or defraud and that his statements created a deception. The Court rejectedfor furtherÏinquiry, it may notify the respondent of its action and request addirespondent's argument and found that he violated Rule 1iry, it may notify the respondent of its action and request addi102(a)(4). The Court held thatfor furtherÏinquiry, it may notify the respondent of its action and request addiinsofar as respondent's collection of an excessive fee, which was alleged in the complaint,for furtherÏinquiry, it may notify the respondent of its action and request addican also be characterized as a violation of Rule 1iry, it may notify the respondent of its action and request addi102(a)(4), the complaint sufficiently statedfor furtherÏinquiry, it may notify the respondent of its action and request addia cause of action. In re Gerard, 132 I11.2d 507, 548 N.E.2d 1051 (1989). In its opinion infor furtherÏinquiry, it may notify the respondent of its action and request addithat case, the Court held that, "[a]lthough an attorney usually can be disciplined only forfor furtherÏinquiry, it may notify the respondent of its action and request addimisconduct that is charged in a complaint, a disciplinary complaint need not be as specificfor furtherÏinquiry, it may notify the respondent of its action and request addias a criminal complaint." The Court also cited its prior holdings In re Broverman, 40 Il1.2dfor furtherÏinquiry, it may notify the respondent of its action and request addi302, 239 N.E.2d 816 (1968), that a respondent may be disciplined for uncharged misconductfor furtherÏinquiry, it may notify the respondent of its action and request addiif it was effectively encompassed by the charged misconduct and the respondent was notfor furtherÏinquiry, it may notify the respondent of its action and request addimisled or prejudiced, and in In re Thompson, 30 Ill. 2d 560, 198 N.E. 2d 337 (1964), that afor furtherÏinquiry, it may notify the respondent of its action and request addirespondent may be disciplined for uncharged misconduct if the finding is based solely on thefor furtherÏinquiry, it may notify the respondent of its action and request addirespondent's own testimony. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiOnce the complaint is drafted and approved by the Administrator, it is filed with thefor furtherÏinquiry, it may notify the respondent of its action and request addiClerk of the ARDC, who then dockets it and refers it to the Chair of the Hearing Board. Thefor furtherÏinquiry, it may notify the respondent of its action and request addiChair assigns the matter to one of the panels of the Hearing Board. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi 2. Service on the Respondent If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiAfter the Administrator files the complaint, the Clerk of the ARDC causes a copy offor further Ïinquiry, it may notify the respondent of its action and request addithe complaint, a copy of the Commission and Supreme Court Rules, and a notice of thefor furtherÏinquiry, it may notify the respondent of its action and request addihearing to be served on the respondent. Once the respondent has been served, thefor furtherÏinquiry, it may notify the respondent of its action and request addidisciplinary proceeding becomes public. Supreme Court Rule 766. The Commission rulesfor furtherÏinquiry, it may notify the respondent of its action and request addiprovide that personal service may be made on a respondent by a member of thefor furtherÏinquiry, it may notify the respondent of its action and request addiAdministrator's staff, by the sheriff of any county in which the respondent is found, by anyfor furtherÏinquiry, it may notify the respondent of its action and request addimember of the Bar of the State of Illinois at the direction of the Chair of the Hearing Panel,for furtherÏinquiry, it may notify the respondent of its action and request addior by any resident of another state who by the laws or rules accorded that State is authorizedfor furtherÏinquiry, it may notify the respondent of its action and request addito serve process in disciplinary proceedings. Dis. Com. R. 215 (1988). In In re Tepper, 126for furtherÏinquiry, it may notify the respondent of its action and request addiIl1.2d 109, 533 N.E.2d 838 (1988), the respondent challenged the Court's jurisdiction overfor furtherÏinquiry, it may notify the respondent of its action and request addihim by claiming that ARDC rule authorizing service by members of the Administrator's stafffor furtherÏinquiry, it may notify the respondent of its action and request addiwas invalid because it conflicted with Supreme Court Rule 765, which provided that servicefor furtherÏinquiry, it may notify the respondent of its action and request addiin disciplinary cases may be made by the methods prescribed under the Civil Practice Lawfor furtherÏinquiry, it may notify the respondent of its action and request addior Rules of the Supreme Court. The Court rejected the respondent's argument, noting that thefor furtherÏinquiry, it may notify the respondent of its action and request addiuse of the word "may" in Rule 765 was permissive and was not intended to provide thefor furtherÏinquiry, it may notify the respondent of its action and request addiexclusive means by which service may be made. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiSupreme Court Rule 765 sets forth other means by which respondents may be servedfor furtherÏinquiry, it may notify the respondent of its action and request addiwith a complaint or other notices in disciplinary proceedings. Rule 765 was amendedfor furtherÏinquiry, it may notify the respondent of its action and request addirecently to provide that if personal service of a complaint or notice is not possible, afor furtherÏinquiry, it may notify the respondent of its action and request addirespondent may be served by leaving a copy of the complaint at the last address at which thefor furtherÏinquiry, it may notify the respondent of its action and request addirespondent registered pursuant to Rule 756. As a result, personal service is not alwaysfor furtherÏinquiry, it may notify the respondent of its action and request addirequired. As noted above, if an attorney fails to provide the Administrator with a currentfor furtherÏinquiry, it may notify the respondent of its action and request addiaddress, that attorney is deemed to have appointed the Clerk of the If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiSupreme Court of Illinois to be his registered agent. When that occurs, thefor further Ïinquiry, it may notify the respondent of its action and request addicomplaint filed against the lawyer may be served on the Clerk as the agent of thefor furtherÏinquiry, it may notify the respondent of its action and request addiattorney. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi3. Answer If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThe Commission Rules require a respondent to answer the complaint or otherwisefor furtherÏinquiry, it may notify the respondent of its action and request addiplead within 21 days after personal service or within 28 days after the date of mailing whenfor furtherÏinquiry, it may notify the respondent of its action and request addiservice is by mail. Dis. Com. R. 231. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThe Supreme Court rules provide that proceedings before the Hearing Board arefor furtherÏinquiry, it may notify the respondent of its action and request addiconducted according to the practice in civil cases as modified by the Commission rules.for furtherÏinquiry, it may notify the respondent of its action and request addiSupreme Court Rule 753(c)(5). The Commission rules provide that the original of anyfor furtherÏinquiry, it may notify the respondent of its action and request addipleading, including the answer, must be filed with the Clerk of the ARDCand a copy thereoffor furtherÏinquiry, it may notify the respondent of its action and request addibe served in the manner prescribed for the service of papers by the rules of the Supreme Courtfor furtherÏinquiry, it may notify the respondent of its action and request addiin civil cases. Dis. Com. R. 232. This means that a copy of any pleading or motion thefor furtherÏinquiry, it may notify the respondent of its action and request addirespondent files must be served on counsel for the Administrator. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiThe Commission rules require that the respondent's answer specifically admit or denyfor furtherÏinquiry, it may notify the respondent of its action and request addieach allegation of the complaint. Every allegation not specifically denied is deemed admittedfor furtherÏinquiry, it may notify the respondent of its action and request addiunless the answer states the reason the respondent is unable to make a specific denial. Dis.for furtherÏinquiry, it may notify the respondent of its action and request addiCom. R. 233; In re Margolis, M.R. 2438 (1980). The Administrator is not entitled to file afor furtherÏinquiry, it may notify the respondent of its action and request addireply to the respondent's answer. Under Commission Rule 234 any new matter alleged in thefor furtherÏinquiry, it may notify the respondent of its action and request addirespondent's answer is deemed denied by the Administrator. See also In re Smith, 75 Il1.2dfor furtherÏinquiry, it may notify the respondent of its action and request addi134, 387 N.E.2d 315 (1979). If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi4. Default If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiIf a respondent fails to answer or otherwise plead, all factual allegations andfor furtherÏinquiry, it may notify the respondent of its action and request addidisciplinary charges are deemed admitted upon the motion of the Administrator and noticefor furtherÏinquiry, it may notify the respondent of its action and request addito the respondent. Commission Rule 236 provides that if an order deeming the allegationsfor furtherÏinquiry, it may notify the respondent of its action and request addiadmitted is entered, no further proof of the misconduct is required. This rule, which allowsfor furtherÏinquiry, it may notify the respondent of its action and request addifor a default finding of misconduct against a respondent, makes Supreme Court Rule 765 allfor furtherÏinquiry, it may notify the respondent of its action and request addithe more significant. Under that rule, as noted above, a respondent may be served at the lastfor furtherÏinquiry, it may notify the respondent of its action and request addiaddress at which he registered. If a respondent has not provided the Administrator with afor furtherÏinquiry, it may notify the respondent of its action and request addicurrent registration address, the Clerk of the Supreme Court of Illinois may be served withfor furtherÏinquiry, it may notify the respondent of its action and request addithe complaint as the agent of the respondent. As a result, the respondent may, in fact, befor furtherÏinquiry, it may notify the respondent of its action and request addiunaware that a disciplinary proceeding is pending against him and the Hearing Board mayfor furtherÏinquiry, it may notify the respondent of its action and request addienter a default order against him without his actual knowledge. The rule provides, however,for furtherÏinquiry, it may notify the respondent of its action and request addithat a respondent who has failed to answer timely or otherwise plead may seek leave of thefor furtherÏinquiry, it may notify the respondent of its action and request addiHearing Panel to vacate an order of default and file an answer, but only upon a showing thatfor furtherÏinquiry, it may notify the respondent of its action and request addihis failure to act was a result of mistake, inadvertence, surprise, or excusable neglect. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiCommission Rule 236 further provides that when a hearing is conducted on afor furtherÏinquiry, it may notify the respondent of its action and request addicomplaint for which the allegations have been deemed admitted, the respondent andfor furtherÏinquiry, it may notify the respondent of its action and request addiAdministrator are limited to presenting evidence of aggravating and mitigating factors andfor furtherÏinquiry, it may notify the respondent of its action and request addiarguments regarding the form and amount of discipline to be imposed. They may not litigatefor furtherÏinquiry, it may notify the respondent of its action and request addithe actual allegations of misconduct contained in the complaint. If the Hearing If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi

may notify the respondent of its action and request addiBoard vacates an order of default, the Board may not conduct a hearing within 28 days offor furtherÏinquiry, it may notify the respondent of its action and request addithe entry of the order vacating the default judgment. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi5. Motions If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiUnder the Supreme Court Rules, motions allowed in civil cases may also be madefor furtherÏinquiry, it may notify the respondent of its action and request addiin disciplinary cases. The Commission rules require that all motions in regard to pleadingsfor furtherÏinquiry, it may notify the respondent of its action and request addishall be made in writing prior to a hearing. Rulings on motions are made by the Chair offor furtherÏinquiry, it may notify the respondent of its action and request addithe panel or in any other manner the Chair deems appropriate. Technical objections tofor furtherÏinquiry, it may notify the respondent of its action and request addipleadings are not favored and pleadings are not held defective unless the alleged defectfor furtherÏinquiry, it may notify the respondent of its action and request addiresults in actual prejudice to the objecting party. The rules prohibit oral argument on motionsfor furtherÏinquiry, it may notify the respondent of its action and request addiregarding pleadings, but they allow the movant to submit written suggestions with citationsfor furtherÏinquiry, it may notify the respondent of its action and request addito authority in support of any motion. The objecting party may submit countermay notify the respondent of its action and request addisuggestionsfor furtherÏinquiry, it may notify the respondent of its action and request addiwithin seven days after receipt of the movant's suggestions. Dis. Com. R. 235. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi6. Preiry, it may notify the respondent of its action and request addiHearing Conference If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiCommission Rule 260 provides for holding a preiry, it may notify the respondent of its action and request addihearing conference within 21 daysfor furtherÏinquiry, it may notify the respondent of its action and request addiafter an answer is due. The Chair of the Panel to which the matter is assigned conducts thefor furtherÏinquiry, it may notify the respondent of its action and request addiconference. Matters addressed at the preiry, it may notify the respondent of its action and request addihearing conference include the following: If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi1. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi2. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi3. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi4. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiS. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi6. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiformulation and simplification of the issues; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addielimination of frivolous charges or defenses; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addithe necessity of amendments to the pleadings; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addientry into stipulations regarding undisputed evidence and obtaining preiry, it may notify the respondent of its action and request addihearing rulingsfor furtherÏinquiry, it may notify the respondent of its action and request addion the admissibility of evidence; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiidentification and limitation of witnesses, including character or expert witnesses; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addithe possibility of discipline on consent pursuant to Supreme Court Rule 762; If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiand If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiany other matters that may aid in the disposition of the action. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiPursuant to Rule 260, the Chair of the Panel is to schedule a hearing date at the preiry, it may notify the respondent of its action and request addihearing conference. The hearing should be held no later than 120 days after the date of thefor furtherÏinquiry, it may notify the respondent of its action and request addipreiry, it may notify the respondent of its action and request addihearing conference, except in extraordinary circumstances. Preiry, it may notify the respondent of its action and request addihearing conferences mayfor furtherÏinquiry, it may notify the respondent of its action and request addibe held by telephone or in person. At the conclusion of the preiry, it may notify the respondent of its action and request addihearing conference the Chairfor furtherÏinquiry,itmay notify the respondent of its action and request addienters an order reciting the action taken and the agreements of the Administrator and thefor furtherÏinquiry, it may notify the respondent of its action and request addirespondent. As a general rule, counsel for the Administrator prepares an order for the Chairfor furtherÏinquiry, it may notify the respondent of its action and request addireciting the stipulations, agreements and directions of the Chair as determined during thefor furtherÏinquiry, it may notify the respondent of its action and request addiconference. If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addi If the panel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addipanel reopens the investigation for furtherÏinquiry, it may notify the respondent of its action and request addiCommission Rule 272 provides that hearing and preiry, it may notify the respondent of its action and request addihearing conferences shall notfor furtherÏinquiry, it may notify the respondent of its action and request addibe continued except upon written motion accompanied by affidavit, and may not be continued more than once except under extraordinary circumstances. Engagement of counsel is not deemed to be an extraordinary circumstance. It is not unusual, however, for the Chair to continue the pre-hearing conference to another date if the parties need additional time to negotiate, to agree to discipline on consent, to enter into certain stipulations, or to assist in expediting the hearing of the matter. Consequently, the hearing is not always held within 120 days of the first pre-hearing conference.

7.   Discovery

Under the Supreme Court and Commission Rules, discovery in disciplinary proceedings is the same as in civil cases, with certain exceptions. The Commission rules prohibit written interrogatories being served on any party without leave of the Chair of the Hearing Panel and upon good cause shown. The rule also provides that any time after the respondent has been served, either party may file a request for admission of fact and genuineness of documents pursuant to Supreme Court Rule 216.

The Commission rules provide that the Chair of the Hearing Panel makes and enforces all rules and orders necessary to compel compliance with discovery, and may impose any of the remedies provided in Supreme Court Rule 219(c) for failure to comply with reasonable discovery requests. Under the Commission rules, all discovery must be completed no later than 14 days prior to the hearing date.

Commission Rule 253 imposes an affirmative duty on the respondent and the Administrator to file a report disclosing the name, address and telephone number of each person who has knowledge of facts that are the subject of the proceeding, including the character or reputation of the respondent. This report must be filed within 28 days of service of the complaint. If either party becomes aware of the identity of additional persons having such knowledge, that party must file another report disclosing the name, address and telephone number of those additional persons. Under Rule 253, neither the Administrator nor the respondent may offer the testimony of any person, the identity and location of whom the Administrator or the respondent has failed to disclose pursuant to this rule.

8. Hearing

As noted above, all proceedings before the Hearing Board are public once the respondent is served with a copy of the complaint. As a result, members of the press and public may attend disciplinary hearings. Hearings brought pursuant to Supreme Court Rule 758, however, regarding an alleged mental infirmity, mental disorder, or addiction to drugs or intoxicants, are confidential. The deliberations of the Hearing Board in all cases are also confidential. The Hearing Board or the Supreme Court can issue protective orders by which certain information becomes confidential.

The hearings are conducted according to the rules of civil procedure and the Supreme Court Rules in civil cases. The standard of proof in all hearings is dear and convincing evidence. Supreme Court Rule 753(c)(6). The Administrator has the burden of proving the allegations contained in the complaint by clear and convincing evidence. In re Komar, 125 Il1.2d 427, 532 N.E.2d 801 (1987). The respondent, however, has the burden of proving any defense or other affirmative matter, raised in mitigation by dear and convincing evidence. In re Trezise, 118 Il1.2d 357, 515 N.E.2d 80 (1987). Moreover, once the Administrator has produced evidence in his case in chief, any rebuttal evidence must be brought by the respondent. If such evidence is not adduced, the Administrator's proof stands unrebutted. The Court has held that this fact does not shift the burden of proof onto the respondent. In re Samuels, 126 Il1.2d 509, 535 N.E.2d 808 (1989). Similarly, the respondent has the burden of addressing evidence in mitigation. If he fails to do so, the Hearing Board has no duty to seek it. In re Patt, 81 Il1.2d 447, 410 N.E.2d 870 (1980).

In one case, a pro se respondent failed to produce evidence to establish matters he asserted in mitigation. On appeal, the Review Board remanded the case back to the Hearing Board to provide the respondent with another opportunity to produce evidence. The Hearing panel informed him of his obligation to produce for the Administrator any reports prepared by expert witnesses he consulted or intended to call as witnesses. At the next hearing, the respondent requested a continuance because he was unaware that the burden was placed on him to go forward with evidence regarding any physical or psychological disability. The Hearing Board denied his request, closed the evidence and recommended that the respondent be disbarred. On the respondent's exceptions, the Review Board concurred with the Hearing Board's recommendation. The Supreme Court agreed and disbarred the respondent. In re Behnke, 127 Il1.2d 322, 537 N.E.2d 326 (1989).

In another case, a respondent alleged that the attorney who represented him before the Hearing Board was inadequate. The respondent contended that his attorney was not familiar with the Commission's procedural rules governing disciplinary hearings, including the rule that any new matter alleged in a respondent's answer is deemed denied and the fact that the respondent could be called as an adverse witness by the Administrator. The Supreme Court reviewed the record in that case and determined that, because the respondent was himself a licensed attorney, because his responses indicated that he was not intimidated by the proceeding, because he had at least three months to prepare for the hearing and because he personally knew all that had occurred between him and his clients, the Hearing Board did not deal with him unfairly. The Court agreed with the hearing Board and disbarred the respondent. In re Smith, 75 Il1.2d 134, 387 N.E.2d 315 (1979).

These cases illustrate the importance of being represented before the Hearing Board by competent counsel familiar with the procedural rules of the ARDC.

9. Evidence

The Illinois Code of Civil Procedure and the Rules of the Supreme Court govern the admissibility of evidence before the Hearing Board. The Supreme Court of Illinois has held that the common law rules of evidence, including the hearsay rule, apply to disciplinary proceedings. In re Williams, 111 Il1.2d 105, 488 N.E.2d 1017 (1986). In one case, however, the Court held that the Hearing Board did not err in admitting into evidence letters from persons living out of state related to the respondent's community activities when they were of minor significance, the Administrator did not dispute the content of the letters, and the cost of bringing the authors of those letters to Chicago to testify would have been prohibitive. In re Silvern, 92 Il1.2d 188, 441 N.E.2d 64 (1982).

The Court has held that the rules of evidence must be observed and that documents such as the briefs, abstracts and opinions of civil appeals are not competent evidence and are insufficient to meet the Administrator's burden of proof of the respondent's condua In re Jerome, 31 I11.2d 284, 201 N.E.2d 440 (1964). In Jerome, the Court also inferred that a respondent has a right to cross-examine any witnesses whose testimony may be used against him.

The Court has upheld rulings of the Hearing Board excluding the testimony of witnesses for being irrelevant, cumulative or lacking in foundation. In re Tepper, 126 I11.2d 109, 533 N.E.2d 838 (1988). In another case where the Hearing Board admitted into evidence documentary exhibits, including records related to activity in the respondent's bank accounts, the respondent argued that he admitted in his answer virtually all of the Administrator's factual allegations, and the documents were, therefore, irrelevant, immaterial, cumulative, prejudicial and inadmissible. The Court disagreed, holding that the evidence was material and probative of the ultimate issues in the case, which the respondent had denied. The Court also held that by contesting the allegations that he violated the Code of Professional Responsibility, the respondent cannot complain that evidence tending to prove the allegations was prejudicial. In re Elias, 114 I11.2d 321, 499 N.E.2d 1327 (1986).

Circumstantial evidence is admissible in disciplinary proceedings and may be sufficiently clear and convincing to meet the Administrator's burden of proof In re Bossov, 60 I11.2d 439, 328 N.E.2d 309 (1975). The Court has noted that the motive and intent of a respondent are "rarely the subject of direct testimony" and "must ordinarily be inferred from conduct and from the circumstances under which that conduct took place." In re Braner, 115 I11.2d 304, 504 N.E.2d 102 (1987). Furthermore, neither the Hearing Board nor the Court is "required to be naive in appraising an attorney's conduct." In re Krasner, 32 Il1.2d 121, 204 N.E.2d 10 (1965).

The Court has held that character is always an issue in disciplinary proceedings. People ex ref. Chicago Bar Association v. Meyerovitz, 278 I11.2d 356, 116 N.E.2d 189 (1917). As a result, character evidence is admissible and may be adduced in any way permitted in civil cases. An affidavit or letter which attempts to establish the reputation of a respondent is prohibited by Commission Rule 273. That rule also allows the Hearing panel to limit the evidence concerning the character or reputation of a respondent as the interest of justice requires.

Expert testimony is commonly presented in disciplinary hearings to establish the reasonableness of an attorney's fee, In re Kutner, 78 I11.2d 157, 399 N.E.2d 963 (1979), or a physical or mental impairment, In re Behnke, 127 I11.2d 322, 537 N.E.2d 326 (1989). The Court has held, however, that expert testimony is not admissible to establish the meaning of the disciplinary rules or the ultimate conclusion as to whether a provision of the rules has been violated by the respondent's conduct. In re Masters, 91 I11.2d 413, 438 N.E.2d 187 (1982). However, in In re Friedman, 76 Il1.2d 392, 392 N.E.2d 1333 (1979), expert testimony related to the propriety of the respondent's conduct was admitted into evidence to prove the respondent's mistaken belief that his conduct was proper.

Although the Supreme Court and Commission rules state that the Hearing proceedings are conducted according to the rules and civil practice, the Court does not always apply the same standards in a disciplinary hearing that it would in a civil proceeding. For example, in In re Yamaguchi, 118 Il1.2d 417, 515 N.E.2d 1235 (1987), the Court stated that the rules of evidence applicable in an ordinary civil proceeding need not be strictly applied in a disciplinary proceeding. Specifically, the court held that, although m a civil proceeding any failure to answer a Rule 216 request for admission would result in all of the facts contained in the request being admitted and would preclude testimony inconsistent with those facts, the Hearing Board may allow testimony inconsistent with such admissions. In an earlier case, however, the Hearing Board stated that the respondent's failure to admit or deny the allegations in a request for admission constituted an admission pursuant to Supreme Court Rule 216(c). The Board based its findings of misconduct on those admissions and recommended disbarment. The Court adopted the Hearing Board's findings and disbarred the respondent. In re Boznos, M.R. 2022 (1977).

Commission Rule 274 provides that hearings are to be continuous, proceeding from day to day until the taking of evidence is completed. Hearings may be held on Saturday. As a practical matter, however, if a hearing takes more than one day, it will not necessarily continue on the next day unless both parties and the members of the Hearing Board previously set aside that day for the hearing. Because the three members of the Hearing panel are lawyers who serve as volunteers and have practices of their own, scheduling hearings can be cumbersome.

In In re John A. Betts, 109 I11.2d 154, 485 N.E.2d 1081 (1985), the respondent argued in the Supreme Court that he had been denied a fair hearing because it was held on four separate days over a seven week period, only the first two of the four days being continuous. That schedule violated the Commission Rule 9.1, the predecessor to current Rule 274. The Supreme Court rejected the respondent's argument because his attorney did not object to the continuances, and thus waived the issue. Moreover, the Court held that even if the issue were not waived, the failure to conduct hearings on a continuous day-today basis would not deprive the Court of the right or power to consider the charges. The Court stated that technical objections concerning the practice and procedure before the Hearing or Review Boards do not bind or limit the Court's authority to act. The Court also noted that the respondent was not prejudiced in his defense.

At a proceeding before the Hearing Board, it is not unusual for the hearing officers sitting as a panel to question the witnesses or the respondent. The Supreme Court has held that such questioning of witnesses to elicit certain details regarding the evidence offered, rather than to bring out new evidence, does not show bias on the part of the hearing officers. In re Arnold B. Harris, 383 Ill. 336, 50 N.E.2d 441 (1943). The Court has stated that erroneous rulings on evidentiary questions will not affect a disciplinary proceeding absent a showing that prejudice resulted. In re Damish, 38 I11.2d 195, 230 N.E.2d 254 (1967).

10. Testimony of Respondents

A respondent has a duty to appear at any hearing at which his presence is required or requested. Supreme Court Rule 753(f). A respondent may be served with a notice to appear at the hearing or requested to appear by the Chair of the panel. Failure to appear at a hearing without good cause is a separate ground for discipline or the denial of a petition.

Respondents not only have a duty to appear at disciplinary hearings, but they also have a duty to testify in those proceedings. The Supreme Court has held that the choice of silences not open to an attorney if he is to remain an officer of the court. In re Zisook, 88 I11.2d 321, 430 N.E.2d 1037 (1982). The only exception to that requirement is when a respondent's testimony may subject him to criminal liability. In such cases, the respondent may assert the Fifth Amendment privilege against self-incrimination. Should the Administrator deem his testimony essential, however, he may seek from the Supreme Court a grant of immunity from the future use of such testimony in criminal proceedings and obtain an order to compel the respondent to testify. In re March, 71 I11.2d 382, 376 N.E.2d 213 (1978).

Disciplinary proceedings are not criminal in nature. The object of such proceedings is not to punish an attorney, but "to determine whether the attorney is a proper person to be permitted to practice his profession." In re Samuels, 126 I11.2d 509, 535 N.E.2d 808 (1989). As a result, testimony which gives rise to purely disciplinary liability is not protected by the Fifth Amendment. In re Schwarz, 51 Il1.2d 334, 282 N.E.2d 689 (1972); In re March, supra.

A respondent testifying before a panel of the Hearing Board should scrupulously avoid making any false statements. Failure to be candid and giving false testimony in a disciplinary proceeding has been held to demonstrate a lack of fitness to practice law. In re H. Reed Harris, 93 I11.2d 285, 443 N.E.2d 557 (1982). In addition, the Court has held that testifying falsely in a disciplinary hearing cannot be ignored when determining the severity of the sanction to be imposed. In re Stillo, 68 Il1.2d 49, 368 N.E.2d 897 (1977). In a recent case which resulted in a lawyer's disbarment, the Court considered false testimony as a matter in aggravation of his misconduct. In re Vavrik, 117 Il1.2d 408, 512 N.E.2d 1226 (1987).

Occasionally, the evidence produced at a hearing discloses misconduct that has not been charged in the Administrator's complaint. If the Administrator does not amend his complaint and provide the respondent with an opportunity to answer, conduct discovery or otherwise defend the new charge of misconduct, the issue arises as to whether he can be disciplined for the newly disclosed offense. The Supreme Court of the United States, however, has held that imposing a disciplinary sanction on an attorney for conduct for which he was not charged in the complaint is a violation of the attorney's right to due process under the law as guaranteed by the Fourteenth Amendment. In re Ruffolo, 390 U.S. 544 (1968).

In In re Thompson, 30 Il1.2d 560, 198 N.E.2d 337 (1964), decided before Ruffolo, the Illinois Supreme Court approved a Hearing Board finding that a lawyer was guilty of solicitation based on admissions made by the respondent during his testimony, even though the Administrator's complaint did not allege solicitation. The Court has refined its position in subsequent cases, holding that when a respondent discloses misconduct not charged, that evidence may be considered as a factor in aggravation of the offense charged. The result is that the sanction may be greater than it would otherwise have been if the sanction was based only on the misconduct identified in the complaint. See In re Broverman, 40 Il1.2d 302, 239 N.E.2d 816 (1968); In re Gartland, 47 I11.2d 177, 265 N.E.2d 148 (1970); and In re O'Hallaren, 64 Il1.2d 426, 356 N.E.2d 520 (1976).

3. the client had independent advice before completing the transaction.

In re Imming, supra; In re Schuyler, supra.

12. Prior Discipline

In determining the appropriate disciplinary sanction to be imposed, the Hearing Board and the Supreme Court will consider any prior discipline imposed on the respondent. In re Guilford, 115 Il1.2d 495, 505 N.E.2d 342 (1987). Normally, the prior disciplinary sanction is related to conduct that occurred prior to the conduct which is the subject of the subsequent disciplinary action. In such cases, the respondent is considered a recidivist for engaging in misconduct after have once been disciplined. The Court has also considered prior discipline in a case where the misconduct being considered occurred prior to the misconduct that resulted in the prior discipline. In that case, the Court disbarred the attorney not on the theory of recidivism, but on the theory that, had both charges been presented in their normal sequence or simultaneously, disbarment would have resulted. In re Teichner, 104 Il1.2d 150, 470 N.E.2d 972 (1984).

Under Supreme Court Rule 753(c), information regarding the prior discipline of a respondent may not be divulged to a Hearing panel until after there has been a finding of misconduct in the present case, unless that information would be admissible for reasons other than to show a propensity to commit the misconduct in question.

The Commission rules set forth the procedure for presenting information related to a respondent's prior discipline. After the Hearing panel concludes that the Administrator has established the alleged misconduct, the Chair of the panel enters an order directing the Administrator to file within seven days a copy of any order or opinion imposing discipline on the respondent if it is not already in evidence. At that time the Administrator may file a short written argument related to the effect the prior discipline should have in the pending proceeding. Within seven days thereafter, the respondent may file a short written argument regarding what affect the prior discipline should receive. Dis. Com. R.277.

13. Disposition by Hearing Board

At the close of evidence, the Administrator and the respondent customarily present argument to the Hearing Board. The Supreme Court has stated that the Administrator's role includes making a recommendation of the sanction to be imposed based on his determination of the gravity of an offense and his experience in the uniform application of the rules. In re Hall, 95 Il1.2d 371, 447 N.E.2d 805 (1983). In every disciplinary proceeding, the Administrator or Deputy Administrator decides what recommendation counsel for the Administrator will make to the Hearing panel.

The Hearing panels make findings of fact and conclusions of fact and law. Supreme Court Rule 753(c). The Supreme Court has held consistently that "the factual findings of the hearing panel are entitled to the same deference as the findings of any initial trier of fact." In re Samuels, 126 Il1.2d 509, 535 N.E.2d 808 (1989); and that they are entitled to "great weight," In re Yamaguchi, 118 Il1.2d 417, 515 N.E.2d 1235 (1987). Moreover, the court affords "a good deal of deference" to the Hearing panel's resolution of conflicting testimony, questions of credibility and "other such fact-finding judgments." In re Braner,

In In reEl, 114 I11.2d 321, 499 N.E.2d 1327 (1986), the Supreme Court considered a respondent's argument that certain evidence was inadmissible as irrelevant because he had admitted all of the factual allegations of the Administrators' complaint. The Supreme Court disagreed. It stated that the evidence, which consisted of bank documents, was probative of the ultimate issues in the case, such as whether respondent's conduct constituted commingling and conversion. Respondent had contested those issues. The respondent also argued that the Review Board erred in basing its recommendation of disbarment on documents revealing that his checks to clients were dishonored. That conduct was not alleged in the complaint. The Illinois Supreme Court held that the Review Board did not violate the respondent's right to due process because the findings regarding the checks were not new charges but simply illustrative of respondent's pattern and practice of commingling and conversion.

These holdings further dictate that respondents should retain counsel experienced in disciplinary matters before attempting to defend themselves before the Hearing Board. A respondent with little or no experience in disciplinary matters may unwittingly provide evidence in aggravation or illustrative of a pattern of conduct, consequently receiving a more severe sanction than he otherwise would have received. This result may be avoided by retaining counsel experienced in disciplinary matters.

In the case of In re Zisook, 88 I11.2d 321, 430 N.E.2d 1037 (1982), the Supreme Court held that employees of a professional corporation have no privilege as to documents of the corporation. The privilege against self-incrimination extends only to personal papers contained in the professional corporation's files. The Court held that an unincorporated sole practitioner may assert his Fifth Amendment privilege to both his business records and his personal documents. If a witness in a disciplinary case wishes to assert a Fifth Amendment privilege against self-incAmination, that witness may be required to appear and claim the privilege. The Administrator may then proceed in the circuit court for a determination as to whether the assertion of the privilege was justified.

11. Presumptions

Few presumptions have been discussed in disciplinary cases. The Court has held that a respondent is presumed innocent until proven guilty. In re Damish, 38 I11.2d 195, 230 N.E.2d 254 (1967).

The most common presumption raised in disciplinary cases is the presumption of undue influence which asses whenever an attorney engages in a transaction with a client and benefits thereby. In re Schuyler, 91 Il1.2d 6, 434 N.E.2d 1137 (1982). In such cases, the burden is on the respondent to prove by clear and convincing evidence that the transaction in question was fair, equitable and just, and that it did not proceed from undue influence. In re Imming, 131 I11.2d 239, 545 N.E.2d 715 (1989). The respondent may rebut the presumption by proving that:

1. he made a full and frank disclosure of all the relevant information in his possession;

2. the consideration was adequate; and

3. the client had independent advice before completing the transaction.

12. Prior Discipline

In determining the appropriate disciplinary sanction to be imposed, the Hearing Board and the Supreme Court will consider any prior discipline imposed on the respondent. In re Guilford, 115 I11.2d 495, 505 N.E.2d 342 (1987). Normally, the prior disciplinary sanction is related to conduct that occurred prior to the conduct which is the subject of the subsequent disciplinary action. In such cases, the respondent is considered a recidivist for engaging in misconduct after have once been disciplined. The Court has also considered prior discipline in a case where the misconduct being considered occurred prior to the misconduct that resulted in the prior discipline. In that case, the Court disbarred the attorney not on the theory of recidivism, but on the theory that, had both charges been presented in their normal sequence or simultaneously, disbarment would have resulted. In re Teichner, 104 I11.2d 150, 470 N.E.2d 972 (1984).

Under Supreme Court Rule 753(c), information regarding the prior discipline of a respondent may not be divulged to a Hearing panel until after there has been a finding of misconduct in the present case, unless that information would be admissible for reasons other than to show a propensity to commit the misconduct in question.

The Commission rules set forth the procedure for presenting information related to a respondent's prior discipline. After the Hearing panel concludes that the Administrator has established the alleged misconduct, the Chair of the panel enters an order directing the Administrator to file within seven days a copy of any order or opinion imposing discipline on the respondent if it is not already in evidence. At that time the Administrator may file a short written argument related to the effect the prior discipline should have in the pending proceeding. Within seven days thereafter, the respondent may file a short written argument regarding what affect the prior discipline should receive. Dis. Com. R.277.

13. Disposition by Hearing Board

At the close of evidence, the Administrator and the respondent customarily present argument to the Hearing Board. The Supreme Court has stated that the Administrator's role includes making a recommendation of the sanction to be imposed based on his determination of the gravity of an offense and his experience in the uniform application of the rules. In re Hall, 95 I11.2d 371, 447 N.E.2d 805 (1983). In every disciplinary proceeding, the Administrator or Deputy Administrator decides what recommendation counsel for the Administrator will make to the Hearing panel.

The Hearing panels make findings of fact and conclusions of fact and law. Supreme Court Rule 753(c). The Supreme Court has held consistently that "the factual findings of the hearing panel are entitled to the same deference as the findings of any initial trier of fact." In re Samuels, 126 Il1.2d 509, 535 N.E.2d 808 (1989); and that they are entitled to "great weight," In re Yamaguchi, 118 Il1.2d 417, 515 N.E.2d 1235 (1987). Moreover, the court affords "a good deal of deference" to the Hearing panel's resolution of conflicting testimony, questions of credibility and "other such fact-ffnding judgments." In re Braner, 115 Il1.2d 304, 504 N.E.2d 102 (1987). The Court, however, has also held that it is not required to accept the Hearing Board's findings when they are not established by clear and convincing evidence. In re Enstrom, 104 Il1.2d 410, 472 N.E.2d 446 (1984). In one case, while noting that the "findings of the Hearing Board regarding disputed questions of fact . . . are entitled to approximately 'the same weight as the findings of any trier of fact in our judicial system,"' the Court felt compelled "to look further into the record to understand more precisely the nature of the respondent's conduct" because of "the complexity and subtlety of the distinctions between permissible and impermissible forms of solicitation" and "the nature of the court's role in disciplinary proceedings." In re Teichner, 75 Il1.2d 88, 387 N.E.2d 265 (1979). The Court disagreed with the Hearing and Review Boards' conclusion in that case that the respondent's solicitation was improper. Generally, however, the Court accepts the findings of misconduct made by the Hearing Board unless the respondent convinces the Court that such findings are against the manifest weight of the evidence. In re Braner, supra.

Rule 753(c) also requires the Hearing Board to make a recommendation for discipline, non-disciplinary suspension, or dismissal of the complaint. The Board may order that it will reprimand the respondent in lieu of recommending disciplinary action by the Court. A sanction recommended by the Hearing Board is advisory only. The Court has long held that it is not bound by such recommendations. The Court considers the Board's recommendations for discipline as "suggestions," and has held that "the final responsibility for determining the appropriate sanction in attorney disciplinary cases rests with this court." In re D'Angelo, 126 Il1.2d 45, 533 N.E.2d 861 (1989).

In one case, an issue of due process was raised by a respondent when his case was tried before a Hearing panel of two lawyers who did not agree on a recommendation for a disciplinary sanction. Supreme Court Rule 753(c) provided for three-member hearing panels. Two members were necessary constitute a quorum and the concurrence of a majority was necessary to a decision. Supreme Court Rule 753(c)(2). The respondent agreed to proceed before only two panel members. On consideration of the respondent's exceptions, the Review Board remanded the case to the Hearing Board so that a third panel member could be appointed and a decision could be reached by a majority of the panel. The respondent requested and received a de novo hearing directed solely to the sanction to be imposed. After the hearing, two of the three panel members recommended that he be suspended for two years, the third recommended disbarment. The respondent argued before the Supreme Court that his right to due process was violated because he had not received an unlimited de novo hearing. The Court rejected his argument because all of the hearing panel members agreed on the factual findings. They disagreed only over the recommended sanction. The Court held that, because the factual issues were not disputed, and because the final responsibility for imposing a sanction rested with itself, an entirely new hearing would have served no purpose but delay. The Court disbarred the respondent. In re Rotman, 136 Il1.2d 401, 556 N.E.2d 243 (1990).

The Commission rules provide that the panel shall prepare the report of the Hearing Board as soon as practicable after completion of the hearing. This report is filed with the Clerk of the ARDC. The Clerk then serves a copy of the report on the respondent and the Administrator. Dis. Com. R. 281. Either the respondent, the Administrator, or both may file exceptions to the Hearing Board Report within 21 days after service. Any exceptions to the Hearing Board Report must specify the portion of the report for which review is sought as well as the relief sought. The exceptions may not contain legal argument, citation to the record or legal authority. Dis. Com. R. 301.

As noted above, the Hearing panel may order a reprimand of the respondent. The reprimand must include a description of the respondent's misconduct and the reasons for the reprimand. Dis. Com. R. 282. The order of reprimand and a draft of the proposed reprimand itself are filed with the Clerk of the ARDC. The order designates the time and place of its delivery, which is delivered within 21 days after the filing of the order. The Administrator and the respondent may file exceptions to the Hearing Board's proposed reprimand. The Clerk of the ARDC serves a copy of the order and proposed reprimand upon the respondent and the Administrator. If a reprimand is administered, it must be delivered to the respondent both in writing and orally. The reprimand may be admitted into evidence in any subsequent disciplinary proceeding relating to that respondent.

14. Post-Trial Matters

The Commission rules prohibit the Hearing Board from considering any post-trial motions. Any matters which might otherwise be presented by post-trial motion may be the subject of an exception filed with the Review Board. The Chair of the panel that prepared the Hearing Board Report rules on motions for an extension of time within which to file exceptions to the report. Dis. Com. R. 284(a). The Hearing Board may not allow or consider any written summation, written closing argument or post-trial memoranda. Dis. Com. R. 284(b).

15. Excepting to the Hearing Board Report

Both the respondent and the Administrator may file exceptions to the Hearing Board's report and recommendation as a matter of right. The exceptions must specify the portion of the report for which review is sought as well as the relief sought from the Review Board. Dis. Com. R. 301. Exceptions are filed with the Clerk of the ARDC. Upon receipt of exceptions filed by either party, the Clerk sends a copy of the Hearing Board Report and any exceptions filed to each member of the Review Board. The Clerk then notifies the parties that the matter has been docketed in the Review Board. Either party may request leave to file briefs or present oral argument within 14 days after receipt of the Notice of Review. Either party may assert error by the Hearing Board regardless of whether the party filed exceptions. Dis. Com. R. 301.

If neither the respondent nor the Administrator files exceptions to the Hearing Board Report, and the report recommends action by the Supreme Court, it is submitted to the Court as an agreed matter. The Court may approve the Hearing Board Report or order briefs, oral argument or both. Supreme Court Rule 753(e)(1). The Court is not required to approve or confirm the report and recommendation of the Hearing Board. The Court has rejected such reports and remanded them to the ARDC for further proceedings. In re Washington, M.R. 7053 (1991).

E. Proceedings Before the Review Board

The function of the Review Board is to review the report and recommendation of the Hearing Board. One purpose of the Review Board is to bring a higher degree of uniformity to disciplinary sanctions. The Supreme Court has stated:

The Hearing Board is broken into three-member panels to hear individual cases. Local concerns and standards may temper the panels' judgments and recommendations. By contrast, there is but one Review Board, which sits as a whole for each case. It reviews the findings and disciplinary recommendations of hearing panels from across the entire State. It can readily be seen that uniformity of punishment must be one of its concerns. This court, in arriving at a disciplinary decision, must weight the recommendations of the hearing panel and the Review Board with the institutional limitations of each body in mind. In re Hopper, 85 Il1.2d 318, 423 N.E.2d 900 (1981).

While a review of a disciplinary case by the Review Board is a matter of right for either the respondent or the Administrator, the parties are not entitled to oral argument or briefs as a matter of right. The Review Board may in its discretion permit or require briefs or oral arguments or both. Supreme Court Rule 753(e)(2). If the Review Board allows briefs to be filed, then the Clerk of the ARDC notifies the parties of the due dates of the first and subsequent briefs. If only one party requests leave to file a brief, the Review Board specifies a time within which the other party may file a reply brief. Briefs filed in the Review Board may not exceed 20 pages, double spaced, on letter size paper unless the Review Board grants leave for a greater number of pages. Dis. Com. R. 303.

If the Review Board grants leave to either party for oral argument, the other party may also argue orally. The party initiating review by the Board has the right to open and close during oral argument. If only one party argues, the argument may not exceed 20 minutes. If both parties argue, each side may argue for not more than 30 minutes, which includes not more than ten minutes of rebuttal time for the party with the right to close. Dis. Com. R. 304.

Pursuant to Supreme Court Rule 753, the Review Board may approve the findings of the Hearing Board, reject them, modify those it determines are against the manifest weight of the evidence, or make such additional findings as are established by clear and convincing evidence. The Board may approve, reject, or modify the recommendation of the Hearing Board regarding the appropriate disciplinary sanction. Finally, it may remand the proceeding for further action by the Hearing Board or dismiss the proceeding.

The Review Board may order that a respondent be reprimanded. Dis. Com. R. 312. As with the Hearing Board, the Review Board order and proposed reprimand are filed with the Clerk of the ARDC. The order designates the time and place for the delivery of the proposed reprimand, which must be within 21 days after the order and proposed reprimand are served on the respondent and the Administrator. The respondent or the Administrator may petition the Supreme Court within those 21 days to file exceptions to the order. Supreme Court Rule 753(e). If a petition for leave to file exceptions to the Review Board's proposed reprimand is filed, the proceeding in the Review Board is stayed pending action by the Supreme Court. If no exceptions are filed, the order of reprimand becomes final. The Review Board must deliver the reprimand to the respondent both orally and in writing. A Review Board reprimand may be admitted into evidence in any subsequent disciplinary proceeding related to that respondent's conduct. Dis. Com. R. 312.

F. Proceedings Before the Supreme Court

Review of the reports and recommendations of the Hearing and Review Boards by the Supreme Court is  a matter of right. Supreme Court Rule 753(e) provides that reports or orders of the Review Board may be reviewed by the Supreme Court upon leave granted by the Court or upon the Court's own motion. Both the Administrator and the respondent may petition the Court for leave to file exceptions to the order or report of the Review Board. The petition must be filed with the Court and a copy served on the other party within 35 days after service of the order or report of the Review Board. The Supreme Court, or a justice thereof, on motion, may extend the time within which to file the petition. Such motions, however, are not favored and will be allowed "only in the most extreme and compelling circumstances." Supreme Court Rule 753(e).

Whether the Court grants a petition for leave to file exceptions to a Review Board report is a matter of the court's discretion. Among the factors the Court considers are:

1. the general importance of the question presented;

2. the existence of a conflict between the report of the Review

Board and prior decisions of the court; and

the existence of a substantial disparity between the discipline recommended and discipline imposed in similar cases.

Rule 753(e) sets forth in detail the form and content required in a petition for leave to file exceptions to the Review Board report. The petition must contain:

1. a request for leave to file exceptions;

2. a statement of the date upon which the report of the Review Board was filed;

3. a statement of the points relied upon for rejection of the report of the Review Board;

4. a fair and accurate statement of all facts necessary to an understanding of the case, without argument or comment, with appropriate reference to the record by transcript page and exhibit number;

5. a short argument (including appropriate authorities) stating why review by the Supreme Court is warranted and why the decision of the Review Board should be rejected; and

6. a copy of the reports of the Hearing and Review Boards and proposed exceptions appended to the petition.

The petition must be duplicated, served and filed in accordance with the same requirements for the filing of briefs. See Supreme Court Rule 344.

The opposing party may file an answer to the petition within 14 days after the expiration of the time for the filing of the petition. The answer must set forth reasons why the petition should not be granted, and to the extent possible, should comply with the form of the petition, omitting the first four items identified above unless it is necessary to correct those portions of the petition. The answer must be duplicated, served and filed in accordance with the relevant requirements for filing briefs. The Court does not allow a reply to the answer.

If the Court allows a petition for leave to file exceptions to the Review Board Report, the Clerk of the ARDC transmits the entire record of the case to the Court. Regardless of which party filed exceptions, either party on appeal may assert error in any ruling, action, conclusion or recommendation of the Review Board. The parties are not entitled to briefs or oral agreement, but the Court may, in its discretion, permit or require briefs, oral argument or both.

If the court permits or requires briefs, the petition for leave to file exceptions allowed by the court stands as the brief of the appellant. Remaining briefs are prepared, filed and served in compliance with Supreme Court Rules 343 and 344.

In any matter in which the Review Board recommends disciplinary action by the Supreme Court and neither the Administrator nor the respondent files exceptions to the Review Board report, the Clerk of the ARDC submits the report of the Review Board to the court as an agreed matter. If it does not approve the report, the Court may order briefs or oral argument or both. The Court is not required to approve the report and recommendation of either the Hearing or Review Board, even if submitted to the court as an agreed matter. As noted above, the Court has consistently stated that these reports are advisory only and do not bind it in deciding a disciplinary case.

Typically, the Court will decide a disciplinary case on the basis of the record made before the Hearing Board. The Court has held, however, that it has the authority to supplement the record in its discretion. In re Crane, 96 I11.2d 40, 449 N.E.2d 94 (1983). The Court has accepted evidence during its review of a case that had not been offered at the hearing. In re Bizar, 97 I11.2d 127, 454 N.E.2d 271 (1983).

The Supreme Court may conclude a disciplinary proceeding with an order imposing discipline, dismissing a matter or remanding the matter to the Review Board or the Hearing Board. The Court also may render a written opinion outlining the misconduct and its reasons for the sanction imposed. When the Supreme Court issues its opinion in a disciplinary case, the respondent or the Administrator may file a petition for rehearing within 21 days pursuant to Supreme Court Rule 367. If no petition for rehearing is filed, the Supreme Court issues its mandate. The disciplinary sanction becomes effective on the date the court issues the mandate.

G. Discipline on Consent

Supreme Court Rule 762 allows a respondent to consent to disbarment or a lesser disciplinary sanction, and thus avoid the time, expense and anguish of a hearing and appeal.

1. Disbarment on Consent

Rule 762(a) sets forth the requirements for filing a motion for disbarment on consent. It allows an attorney to file with the Supreme Court a motion to strike his name from the role of licensed attorneys at any time while a charge of misconduct is under investigation or pending against him before the Inquiry, Hearing or Review Boards.

Upon the filing of a motion for disbarment on consent, the Supreme Court Clerk provides the Administrator with a copy of the motion. The Administrator has 21 days to file a statement of any charges pending at the time the motion is filed. The statement of charges must clearly and specifically inform the attorney of the acts of misconduct with which he is charged. Within 14 days after the statement of charges is filed with the Court, the attorney-movant must file with the Court his affidavit stating:

1. that he has received a copy of the statement of charges;

2. his motion is freely and voluntarily made; and

3. he understands the nature and consequences of motion.

If the attorney fails to file such an affidavit within the 14-day period or if the affidavit does not contain the statements required by the rule, the Court may deny the attorney's motion to strike his name from the role of attorneys admitted to practice law. Supreme Court Rule 762(a).

As a practical matter, the motion and affidavit of the respondent and the Administrator's statement of charges are frequently filed simultaneously. The Administrator may draft all three documents and file them with the Clerk of the Supreme Court after the respondent executes the motion and affidavit.

The Court does not always allow petitions for voluntary disbarment. In one case, the pro se respondent filed such a motion after proceedings before the Hearing and Review Boards and subsequent to the briefing and argument before the Supreme Court. The Court denied the respondent's petition "because of the serious nature of the unprofessional conduct involved and the untimeliness of the motion. . ." In re Weston, 92 Il1.2d 431, 442 N.E.2d 236 (1982); see also In re Cramer, M.R. 3544 (1985).

2. Discipline other than Disbarment

Pursuant to Rule 762(b), the Administrator and respondent may submit a disciplinary case to the Court as an agreed matter by way of a petition to impose on consent discipline other than disbarment. Such a petition may be filed under the following circumstances:

1. during the pendency of a proceeding before the Supreme Court; or

2. during the pendency of a proceeding before the Review,

Hearing or Inquiry Boards, and with the approval of the Board before which the proceeding is pending.

It may not be presented during the initial investigation by the Administrator. The investigation must have gone at least as far as the Inquiry Board.

The Administrator prepares the petition for discipline on consent setting forth the misconduct and a recommendation for discipline. Attached to the petition must be an affidavit executed by the attorney stating that:

1.     he has read the petition;

2. the assertions in the petition are true and complete;

3. he joins in the petition freely and voluntarily; and

4. he understands the nature and consequences of the petition.

The affidavit may include any other facts that he wishes to present to the Court as matters in mitigation.

The Administrator files the petition and affidavit with the Clerk of the Supreme Court. The Clerk submits the matter to the Court as an agreed matter. The Court may allow the petition and impose the discipline recommended. If the court denies the petition, the disciplinary proceeding resumes as if no petition had been submitted. If the proceeding resumes before the Inquiry or Hearing Board, it will be assigned to a different panel of the Board. Rule 762(b) provides that no admission in the petition may be used against the respondent. The Court has denied several petitions for discipline on consent since it adopted Rule 762(b) in October of 1989. See, for example, In re Fuller T.' M.R. 7126 (1991); In re Goldberg, M.R. 7147 (1991).

As a practical matter, a petition to impose discipline on consent arises out of an agreement between the respondent and the Administrator, in which the respondent acknowledges that he has engaged in specific acts of misconduct that warrant a certain sanction. Such agreements are the result of a negotiation process during which both parties must weigh many factors. Competent representation is important for a respondent in these negotiations.

 H. Reciprocal Discipline

Under Rule 8.3 of the Rules of Professional Conduct, a lawyer who has been disciplined as a result of disciplinary action brought by any body other than the minois ARDC shall report that fact to the ARDC. As a result, it is the duty of the attorney to notify the Administrator when he has been disciplined in another state. If an attorney licensed in Illinois and another state is disciplined in the other state, he may be subjected to the same discipline in Illinois pursuant to Supreme Court Rule 763.

Once the Administrator learns that an Illinois lawyer has been disciplined in another state, the Administrator chooses how to proceed. The Administrator may initiate proceedings under Rule 763 by filing a petition with the Illinois Supreme Court for reciprocal disciplinary action. A certified copy of the disciplinary order of the other state must be attached to the petition. A copy of the petition is served on the respondent. If the respondent desires a hearing on the petition, he must make a written request for a hearing within 21 days after being served. If the attorney fails to request a hearing in the manner set forth in Rule 763, he waives his opportunity for a hearing and the Court considers the Administrator's petition without any additional evidence. The Court may impose on the respondent the same discipline that was imposed in the other state. See, for example, In re Works, M.R. 7062 (1991).

The Administrator is not required to initiate proceedings for reciprocal disciplinary action. The Administrator may proceed independently by initiating a disciplinary proceeding before the Hearing Board pursuant to Supreme Court 753 and treating it as any other disciplinary proceeding. If the Administrator elects to proceed independently, the discipline the Illinois Supreme Court imposes is not limited to the discipline ordered in the other state. Supreme Court Rule 763.

If the attorney elects to request a hearing on the petition, Rule 763 requires that the hearing be held before the Hearing Board no less than 14 days after the Board gives notice thereof to the attorney and the Administrator. A hearing on the petition for reciprocal disciplinary action is limited only to the following issues:

1. whether or not the order of the foreign state was entered;

2.whether it applies to the attorney;

3.whether it remains in full force and effect;

4.whether the procedure in the foreign state resulting in the order was so lacking in notice or opportunity to be heard as to constitute deprivation of due process of law; and

5. whether the conduct of the attorney warrants substantially less discipline in this state.

The hearing may not address the issue of whether the lawyer engaged in the misconduct for which he was subjected to discipline in the other state. The factual findings of the other State are resjudicata, In re Kesler, 89 Il1.2d 151, 433 N.E.2d 643 (1982); and, as such, may not be disputed. In re Witte, 99 Il1.2d 301, 458 N.E.2d 484 (1984).

If reciprocal disciplinary action results in a suspension or disbarment in this state, Supreme Court Rule 767 applies to the reinstatement of the suspended or disbarred attorney. Supreme Court Rule 767 provides that a petition for reinstatement is required after an attorney has been disbarred, disbarred on consent, or suspended until further order of the Court. In some cases, however, the Court has ordered that a disbarment or suspension run concurrently with the disbarment or suspension in the other state. In re Newendorp, M.R. 3589 (1985); In re Johnson, M.R. 3847 (1986); In re Bendes, M.R. 3231 (1984); In re Witte, supra.

The Supreme Court has held that Rule 763 does not require an automatic imposition in Illinois proceedings of the same discipline imposed by the sister state. The sanction imposed in the other state is persuasive but not binding on the Illinois Supreme Court. In re Witte, supra; In re Kesler, supra. The Court may impose different discipline if it finds that the same conduct in Illinois would warrant different discipline.

The Court has drawn a distinction between cases where discipline has been imposed by another state in which the respondent's misconduct occurred, and cases where the misconduct occurred neither in Illinois nor the other state that disciplined the respondent. This distinction is a factor in determining whether the conduct of the respondent in a reciprocal disciplinary case warrants substantially less discipline in this State. When the misconduct occurred neither in Illinois nor the other State that imposed discipline, the appropriate disciplinary sanction "should be determined in the same manner as though respondent stood convicted of a criminal offense." That is, the Hearing Board should "consider all facts and circumstances in aggravation and mitigation, including respondent's actual conduct." In re Cook, 67 Il1.2d 26, 364 N.E.2d 86 (1977).

I. Conviction of Crime

Under Supreme Court Rule 761, when an attorney admitted to practice law in Illinois has been convicted of a crime, it is his duty to notify the Administrator of the conviction in writing within 30 days of the entry of the judgment or conviction. It makes no difference whether the conviction is for a felony or misdemeanor. Notification is required whether the conviction results from a plea of guilty or of nolo contendere or from or other post conviction proceedings.

When the Administrator becomes aware that a lawyer has been convicted of a crime, the Administrator must determine whether the crime involves fraud or moral turpitude. For disciplinary purposes the Illinois Supreme Court has defined the term "fraud" as "anything calculated to deceive, including the suppression of truth and the suggestion of what is false," In re Yamaguchi, 118 Il1.2d 417, 515 N.E.2d 1235 (1987), "whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture," In re Armentrout, 99 Il1.2d 242, 457 N.E.2d 1262 (1983). The Court has defined the term moral turpitude as "anything done knowingly contrary to justice, honesty or good morals." In re Needham, 364 Ill. 65, 4 N.E.2d 19 (1936). The Court has found that moral turpitude is involved when an attorney's conduct is fraudulent.

In re Vavrik, 117 I11.2d 408, 512 N.E.2d 1226 (1987). The Court has found moral turpitude in conduct such as attempting to obtain the money or property of others by fraud or false pretenses, In re Needham, supra; conversion of money belonging to another, In re Melin, 410 Ill. 332, 102 N.E.2d 119 (1951); In re Bourgeois, 25 I11.2d 47, 182 N.E.2d 651 (1962); In re Levin, 118 I11.2d 77, 88 N.E.2d 77 (1987); and filing false and fraudulent income tax returns, In re Lacob, 50 I11.2d 277, 278 N.E.2d 795 (1972); In re Scott, 98 I11.2d 9, 455 N.E.2d 81 (1983). The court has stated, however, that the willful failure to file an income tax return "does not necessarily establish moral turpitude," although it does constitute grounds for discipline. In re Rollev, 121 I11.2d 222, 520 N.E.2d 302 (1988); In re O'Hallaren, 64 I11.2d 426, 356 N.E.2d 520 (1976).

If the Administrator determines that the crime is one involving fraud or moral turpitude, Rule 761 requires that the Administrator file a petition with the Court alleging the fact of the conviction and requesting that the attorney be suspended from the practice of law until further order of the Court. The Administrator attaches to the petition a certified copy of the judgment of conviction, which is prima facie evidence of the fact that the attorney was convicted of the crime charged. Upon receipt of the petition, the Court issues a rule to show cause why the attorney should not be suspended from the practice of law until further order of the Court. After consideration of the petition and any answer filed by the respondent, the Court may enter an order suspending the attorney from the practice of law immediately until the further order of the Court. The attorney remains suspended during the pendency of any proceedings before the Hearing Board, the Review Board and the Supreme Court.

If the Administrator determines that the attorney is convicted of a crime that does not involve fraud or moral turpitude, the Administrator does not petition the Court for an immediate suspension, but refers the matter to the Inquiry Board. The fact that the crime does not involve moral turpitude, however, does not preclude disciplinary action against that attorney. The issue in such cases in whether the conduct justifies the imposition of discipline. The Inquiry Board must examine the underlying conduct because the conviction alone, in these cases, does not conclusively establish that discipline is warranted. In re Andros, 64 Il1.2d 419, 356 N.E.2d 513 (1976). The Inquiry Board may, in its discretion, close its investigation into that lawyer's conduct or vote that a complaint be filed against that attorney in the Hearing Board.

If the attorney appeals the conviction, any hearing pursuant to Rule 761 is delayed until completion of the appellate process, unless the attorney requests otherwise. If the respondent was suspended until further order of the Court, he may request that the hearing not be delayed until during the pendency of the appeal. After the appellate process is concluded and the conviction is affirmed, the respondent must notify the Administrator within 30 days of the mandate being filed in the trial court. Upon becoming aware that the conviction has been affirmed, the Administrator resumes proceedings before the Hearing Board. If the Administrator has not yet filed the complaint before the Board, he files it at that time.

In any hearing conducted pursuant to Rule 761, proof of conviction is conclusive of the attorney's guilt. Supreme Court Rule 761(f). The Supreme Court has held that conviction of a crime involving moral turpitude also is conclusive evidence that grounds for discipline exist. In re Ciardelli, 118 Il1.2d 233, 514 N.E.2d 1006 (1987). As a result, the purpose of any hearing before the Hearing Board is to determine the extent of the discipline warranted by the crime. At such hearings, once the Administrator has proven the fact of the conviction, the respondent has the burden of adducing evidence of mitigating circumstances. In re Rolley, 121 Il1.2d 222, 520 N.E.2d 302 (1988). The hearing and review procedure is the same as that provided in Rule 753 for disciplinary cases.

It is significant to note that the discipline to be imposed is a sanction for the respondent's conduct rather than for the conviction. In re Rolley. supra. In such a proceeding the respondent may not go behind the conviction and relitigate his guilt or innocence. In In re Williams, 111 Il1.2d 105, 488 N.E.2d 1017 (1986), the Supreme Court held that the Hearing Board and Review Board erred by finding facts in the criminal case which were contrary to the criminal verdict. In In re Ciardelli, supra the court held that, "in presenting evidence in a disciplinary hearing to show the nature of respondent's conduct, which may be relevant to a determination of the discipline to be imposed, the respondent may not be permitted to impeach the factual allegation of the charges to which he pleaded guilty." The hearing, therefore, is limited to matters in aggravation or mitigation which go to the severity of the sanction to be imposed. The Hearing Board, however, is not precluded from considering evidence in addition to the judgment, including the actual conduct of the respondent which led to the conviction. In re Ciardelli, supra.

Because it is the criminal conduct and not the conviction which justifies discipline, a pardon does not automatically bar a disciplinary proceeding. In re Rolley, supra. In In re Andros, supra the Court stated that the pardon of the respondent "could not efface the moral turpitude involved in the crime. It could not obliterate the moral stain upon his character." In a like manner, the Court has held that the successful completion of an order of supervision, In re Rolley, supra or the vacation of a conviction upon a successful conclusion of a term of probation, In re Vavrik, supra does not preclude the imposition of a disciplinary sanction. The Court in Vavrik held, citing In re Patt, 81 Il1.2d 447, 410 N.E.2d 870 (1980), "[t]hat respondent's conviction was later vacated and the charges dismissed pursuant to a statutory provision pertaining to probation does not alter the fact that there has been an adjudication which finally determined that respondent committed . . . a crime involving moral turpitude."

A lawyer may also be prosecuted in a disciplinary proceeding for the same conduct for which he has been acquitted in the criminal prosecution. In In re Howard, 69 Il1.2d 343, 372 N.E.2d 371 (1977), the Supreme Court stated that "evidence deemed insufficient to convict respondent on criminal charges may be sufficient to show a deviation from required standards of conduct, warranting disciplinary action." The respondent in Howard was suspended by the Court for two years for paying money to a police officer to influence the officer's testimony notwithstanding his acquittal of criminal charges. A disciplinary proceeding, however, is not mandatory whenever a criminal charge is followed by an acquittal. The Court has stated that "a careful evaluation of the circumstances of each case should precede the institution of such a proceeding. And if disciplinary action is taken, the significance of the acquittal is again a matter for determination in each case." In re Browning, 23 Il1.2d 483, 179 N.E.2d 14 (1962).

J. Interim Suspension

Disciplinary proceedings can take several years from the date on which the Administrator begins to investigate a charge of misconduct, through the ultimate disposition in the Supreme Court. If the Administrator determines that a respondent is a threat to the public and should not be allowed to continue to practice law during the pendency of the disciplinary proceedings, the Administrator may petition for an order of interim suspension pursuant to Supreme Court Rule 774. Under that Rule, the Administrator requests that the court issue a rule to show cause why the lawyer should not be suspended from the practice of law until further order of Court. The Court may suspend an attorney from the practice of law until further order on its own motion. This may occur during the pendency of a criminal indictment, criminal information, disciplinary proceeding or disciplinary investigation.

The Administrator may bring such a petition under two sets of circumstances. The first is when the respondent has been formally charged with the commission of a crime involving moral turpitude or reflecting adversely upon his fitness to practice law. The second is when the Inquiry Board votes a complaint and the conduct alleged violates a provision of the Rules of Professional Conduct involving fraud or moral turpitude or threatens irreparable injury to the public, clients or the orderly administration of justice. In either case there must be persuasive evidence to support the charge. Supreme Court Rule 774(a).

The Administrator's petition must be verified or supported by affidavit or other persuasive evidence. The petition is filed with the clerk of the Supreme Court. Rule 774(b) requires that if the respondent's whereabouts are known, the petition is to be served personally on him. If he is unavailable or his whereabouts are unknown, the respondent may be served by mailing the petition to his last address shown on the master roll.

If the court orders an interim suspension during the pendency of criminal or disciplinary proceedings, it may impose conditions necessary to protect the interest of the public and the orderly administration of justice. These conditions include, but are not limited to:

1.notifying the respondent's clients of the interim suspension;

2.auditing the respondent's books, records and accounts;

3. appointing a trustee to manage the respondent's affairs; and

4. a physical or mental examination of the respondent.

See, for example, In re Guinan, M.R. 3557 (1985).

K. Non-Disciplinarg Proceedings

The Supreme Court may order that a lawyer be transferred to inactive status. Transfer to inactive status is not a disciplinary sanction. Whereas disciplinary sanctions are the result of misconduct proved by the Administrator, a transfer to inactive status is not the result of misconduct. It may be the result of a condition that makes a lawyer unable to practice law or the result of a lawyer choosing to render his license inactive because he is not practicing law in the State of Illinois. Supreme Court Rules 757, 758 and 770 provide for transfer to inactive status under three circumstances.

1. Judicial Determination of Disability

The first set of circumstances under which a lawyer may be transferred to inactive status is set forth in Supreme Court Rule 757. Under that rule, if an attorney has been judicially declared to be under legal disability or in need of mental treatment or has been involuntarily committed to a hospital on such grounds, the court may enter an order transferring that attorney to inactive status until further order of the court. No hearing is required under Rule 757 because there has already been a judicial determination of that lawyer's incapacity. The transfer to inactive status occurs automatically under this rule. If there are any disciplinary proceedings pending at the time a lawyer is transferred to inactive status, those proceedings are stayed while the lawyer is inactive. The rule provides that no attorney transferred to inactive status may engage in the practice of law until the Court restores him to active status.

2. Belief of Disability by the Inquiry Board

Supreme Court Rule 758 addresses situations where there is evidence that a lawyer may be incapacitated from continuing to practice law by reason of mental infirmity, mental disorder, or addiction to drugs or intoxicants, although there has been no judicial determination of disability. The rule provides that, if an Inquiry panel has reason to believe that an attorney is incapacitated for one of these reasons, it may direct the Administrator to initiate proceedings by filing a petition with the Hearing Board. Such petitions request a hearing to determine whether the attorney is incapacitated and whether he should be transferred to inactive status pending the removal of the disability or permitted to continue to practice law.

The hearing is conducted before the Hearing Board under the same rules of procedure as any other disciplinary hearing. The one difference is that, pursuant to Supreme Court Rule 760, the Administrator or the respondent may file a motion in the Supreme Court requesting that the court order a mental or physical examination of the attorney. If the court orders such an examination, it is conducted by a member of a panel of physicians chosen for their special qualifications by the Illinois State Medical Society. After the attorney is examined, the examining physician prepares a report of the examination. Copies of the report are given to the Supreme Court, the Hearing Board, the Administrator and the attorney. At any hearing before the Hearing Board, the examining physician may be called upon to testify by the Administrator, the respondent or the Hearing Board. Any physician who is called to testify is subject to cross-examination. The cost of the examination and the witness fees of the physician, if called to testify, are paid from the disciplinary fund. Proceedings under Rules 758 and 760 are private and confidential. Supreme Court Rule 766 (a)(6) and (7).

The provisions of Supreme Court Rule 760 are not limited to proceedings which arise under Rule 758. Rule 760 provides that in any proceeding under Rules 757, 758, 759 or 770, the Administrator or the respondent may request that the Court order that a mental or physical examination of the attorney be taken. If the Court enters such an order, the attorney is required to submit to the examination by the physician identified by the Illinois State Medical Society. If the attorney refuses to submit to such an examination, the Supreme Court may sanction the attorney for the violation its order. The Court has suspended attorneys until further order for their failure to comply with orders to submit to mental exarrunations. In reJafree, M.R. 2046 (1979); In re Novotoy, M.R. 1781 (1976). Once an attorney has been suspended until further order of Court, he may be required to show that he has complied with the Court's order to submit to a mental examination if he desires to be reinstated to the practice of law. Because the suspension protects the public from harm that might arise out of that respondent's continued practice of law, there may be no need to proceed with the hearing on the petition to transfer to inactive status. As a result, that proceeding may be continued indefinitely, as in Novotoy, or dismissed without prejudice.

If the attorney does submit to an examination, the Hearing Board considers the physician's report as well as any other relevant evidence presented by the parties. The Hearing Board then files a report and recommendation, just as it would in a disciplinary proceeding.

Both the Administrator and the respondent may file exceptions to any Hearing Board report and recommendation in proceedings brought under Rule 758. Proceedings conducted pursuant to Rule 758 before the Review Board are the same as in disciplinary cases except that they are confidential. A proceeding pursuant to Rule 758 may reach the Supreme Court as an agreed matter or by a petition for leave to file exceptions to the report and recommendation of the Review Board, as in disciplinary cases.

If the Supreme Court determines that the attorney is incapacitated from continuing to practice law, the Court may transfer the attorney to inactive status until further order. As an alternative, however, the Court may leave the lawyer on active status but impose conditions upon the attorney's continued practice of law that it believes are warranted under the circumstances. Supreme Court Rule 758(a) and (c). Either the Administrator or the respondent may suggest conditions to be imposed. If the attorney is transferred to inactive status, disciplinary proceedings pending against the attorney are stayed while he is on inactive status. Supreme Court Rule 758(d). An attorney on inactive status may not engage in the practice of law. Supreme Court Rule 758(e).

3. Voluntary Transfer to Inactive Status

An attorney may file a motion in the Supreme Court for voluntary transfer to inactive status pursuant to Supreme Court Rule 770. Rule 770 does not identify or limit the reasons for which an attorney may move to be transferred to inactive status. The most common reason is that attorneys who are not engaged in the practice of law in Illinois do not wish to pay the annual registration fee, which currently is $140 for most attorneys. While neither Supreme Court Rule 756 nor Rule 770 excuses attorneys on inactive status from the requirement of paying the registration fee, the ARDC has not required the payment of the fee from such attorneys. As of September 30, 1990, 1,297 attorneys were on inactive status pursuant to the provisions of Rule 770. At that time, 57,083 attorneys were registered with the ARDC.

If an attorney files a motion for voluntary transfer to inactive status in the Supreme Court, Rule 770 requires that the Clerk immediately file a copy of the motion with the Administrator. Within 21 days thereafter, the Administrator must file with the Clerk of the Supreme Court either his consent to the entry of an order allowing the motion or his objection with a statement of any charges against the attorney which are under investigation by the Administrator or pending before the Inquiry, Hearing or Review Boards. Any disciplinary proceedings pending against an attorney transferred to inactive status need not be stayed. The Administrator may object to the stay of pending disciplinary proceedings and request leave to proceed against the attorney for any alleged misconduct. The court has discretion to allow or deny a stay. As in all other circumstances when an attorney is transferred to inactive status, he may not engage in the practice of law.

L. Restoration to Active Status

Supreme Court Rule 759 provides that an attorney transferred to inactive status under the provisions of Rule 757, 758, or 770 may petition for restoration to active status with the court. The Petitioner must serve a copy of his petition on the Administrator. The Administrator may answer the petition within 21 days. If the Administrator consents to the petition or does not file any objections, the court may order the restoration of the Petitioner to active status without a hearing. If the Administrator objects to the petition, it is referred to the Hearing Board. Supreme Court Rule 759(a). The hearing and review procedures are the same as in other disciplinary cases.

As noted above, the Administrator or the Petitioner may request that the Supreme Court order a mental or physical examination of the Petitioner to assist the Hearing Board make its determination. Supreme Court Rule 760. After the hearing and any review process are completed, the Supreme Court may deny or allow the petition, or transfer the attorney to active status without conditions or with any such conditions as may be warranted by the circumstances. Supreme Court Rule 759(c).

In In re Hessberger, 96 Il1.2d 423, 451 N.E.2d 821 (1983), a lawyer, who had been transferred to inactive status pursuant to Rule 757 after having been found not guilty of murder by reason of insanity, petitioned for transfer to active status. After reviewing the record, the Court neither allowed nor denied the petition, but ordered the petitioner to serve as a paralegal for at least one year to restore his professional skills and to expose him to the stress of the legal practice. The Court also ordered that an attorney in the employing office report to the Administrator on the quality of the petitioner's work and his fitness to resume practice. Finally, it ordered the Administrator, the petitioner, and the petitioner's psychiatrist to prepare a program to ensure that the petitioner would follow his medication schedule.

If the Supreme Court restores an attorney to active status, any disciplinary proceedings that were stayed may be resumed. Proceedings under Rule 759 for restoration to active status are not private or confidential.

M. Appointment of Receiver

Proceedings for the appointment of a receiver are not proceedings conducted by the ARDC. The Administrator of the ARDC, however, is always involved in such proceedings. Supreme Court Rule 776 provides that when it comes to the attention of a circuit court that a lawyer in that judicial circuit is unable to discharge properly his responsibilities to his clients due to disability, disappearance or death, and that no partner, associate, executor or other responsible party capable of conducting the lawyer's affairs is known to exist, then the presiding judge in the judicial circuit in which the lawyer maintains his practice or the Supreme Court of Illinois may appoint an attorney from that judicial circuit to serve as a receiver to perform certain duties enumerated under Rule 776.

As a practical matter, it may be the Administrator of the ARDC who obtains information of an attorney's incapacity, disappearance or abandonment of his law practice. In that case, the Administrator may bring that fact to the attention of the circuit court and initiate proceedings to appoint a receiver.

In any event, once the court appoints a receiver, notice of the appointment must be served promptly on the Administrator of the ARDC. Rule 776 provides that the receiver appointed by the court be an attorney from the same judicial circuit as the disabled, absent or deceased attorney. The receiver may not be representing any party who is adverse to any known client of the disabled, absent or deceased lawyer and may have no adverse interest or relationship with that lawyer or his estate that would affect the receiver's ability to perform his duties. An attorney may decline the appointment as receiver for personal or professional reasons. If no available members of the bar from that judicial circuit can properly serve as receiver, Rule 776 provides that the Administrator of the ARDC is to serve as receiver. Any objections to the appointment or the conduct of the receiver are to be raised and heard in the appointment court prior to or during the pendency of the receivership.

The receiver appointed by the court is required to take custody of the lawyer's files and make an inventory of those files as expeditiously as possible. He is to notify the lawyer's clients in all pending cases of the lawyer's inability to continue legal representation and recommend prompt substitution of attorneys, take appropriate steps to sequester client funds, and take any other action necessary to protect the interest of the attorney, his clients, or other affected parties. The receiver may apply to the court for a stay of any applicable statute of limitation, or limitation on time for appeal, or to vacate or obtain relief from any judgment, for a period not to exceed 60 days. Any stay of a statute of limitation may be extended for good cause shown for an additional 30 days. Supreme Court Rule 776(c).

Rule 776 limits the liability of a receiver. The receiver is not regarded as having an attorney-client relationship with the clients of the disabled, absent or deceased lawyer. However, a receiver is bound by the obligations of confidentiality that the rules of professional conduct impose with respect to information acquired as a receiver. The receiver has no liability to the clients of the disabled, absent or deceased lawyer except when the injury is caused by intentional, willful or gross neglect of duties as receiver. The receiver is also immune to separate suits brought by or on behalf of the disabled, absent or deceased lawyer. Supreme Court Rule 776(d).

The receiver normally serves without compensation. If the receiver shows that the nature of the receivership is extraordinary and that the lack of compensation would work substantial hardship on him, the court may award him reasonable compensation. That compensation may paid out of the disciplinary fund or any other fund designated by the Illinois Supreme Court. Any application for compensation must be served on the Administrator of the ARDC. Supreme Court Rule 776(e).  Upon completion of thefrteheatVrepOrt mUSt be served on the court a final -ARDC. Supreme Court Rule 776(f).

N. Petition for Reinstatement

An attorney who has been disbarred, disbarred on consent or suspended until further order of the court will not be reinstated to the practice of law until he has petitioned the Court for reinstatement in compliance with the requirements of Supreme Court Rule 767. The rule provides that no petition for reinstatement shall be filed within a period of five years after the date of an order of disbarment, three years after the date of an order allowing disbarment on consent, two years after the date of an order denying a petition for reinstatement, or one year after an order allowing the petition for reinstatement to be withdrawn. If an attorney has been suspended for a specific period of time and until further order of the court, no petition for reinstatement shall be filed until the specified period of time has elapsed. The Petitioner may present to the Administrator a copy of any petition he proposes to file with the Clerk of the Supreme Court up to 120 days prior to the date on which the petition may be filed pursuant to this rule.

A petitioner for reinstatement is liable for all costs related to the investigation, hearing and review of his petition. Rule 767(c) requires that any petition filed with the Supreme Court be accompanied by a receipt showing payment to the ARDC of a $500.00 deposit to be applied against the costs incurred by the Administrator relative to the reinstatement proceedings. If the deposit exceeds the total amount of costs incurred, the excess is refunded to the petitioner. A petitioner is responsible to pay costs that exceed the amount of the deposit. If a petitioner fails to pay an outstanding balance, the Administrator petitions the Court for an order assessing that amount against the petitioner. If there is no dispute over the amount owed, the Court will enter an order directing the petitioner to pay the assessed amount within 30 days. See, for example, In re Polito, No. 68664 (1990). If the payment is not made, the Court may enter a judgment against the petitioner. The Administrator may then pursue enforcement proceedings on the judgment in a circuit court.

Supreme Court Rule 767 provides that any petition for reinstatement must be verified and include the information specified by the Commission Rules. Commission Rule 402 identifies the information which the Petitioner must include in his petition. The omission of information required by Rule 402, if significant, provides a basis for the Administrator to object to the petition. The Supreme Court may deny a petition for reinstatement based on such an objection. See In re RothenberY, 108 I11.2d 313, 484 N.E.2d 289 (1985); In re Starr, 64 I11.2d 407, 356 N.E.2d 333 (1976).

The verified petition is filed with the Clerk of the Supreme Court. The Commission Rules require that six copies of the petition be served upon the Administrator within seven days after the petition has been filed with the Clerk of the Supreme Court. The petition must be accompanied by a receipt verifying payment of any costs incurred in connection with the prior disciplinary proceeding involving the petitioner. Supreme Court Rule 773(d).

The Administrator refers the petition to the chair of the Hearing Board for assignment to a panel by filing a copy of the petition with the Clerk of the ARDC. The chair of the Hearing Board assigns the matter to a hearing panel and sets the date for the hearing. Commission Rule 413 requires that the date for the hearing shall be no later than 120 days after the petition is assigned to the panel. As a practical matter, however, hearings on petitions for reinstatement frequently are not held within 120 days after they are assigned to a panel of the Hearing Board.

The Supreme Court Rules provide that the hearing procedure is the same as that followed in disciplinary cases brought pursuant to Rule 753. Rule 753 provides that the scheduling of matters before the Hearing Board shall be in accordance with the Commission Rules. Proceedings before the Hearing Board under Rule 753 include the kinds of discovery identified previously in this manual. Under the Commission Rules, however, the Administrator not only conducts discovery, but also conducts an investigation into any matter raised by the petition. The Administrator may obtain information pursuant to his investigation which may form the basis of an objection to the petition for reinstatement.

In the course of his investigation, the Administrator is required by the Supreme Court Rules to notify the following persons that the petitioner has filed a petition for reinstatement:

1. the Chief Judge of each circuit of which the Petitioner maintained an office or engaged in the practice of law; and

2. the president of each local or county Bar Association in each county in which the Petitioner maintained an office or engaged in the practice of law.

Supreme Court Rule 767(e) sets forth the form and content of the notice sent to the Chief Judges and presidents of bar associations. The notice sets forth the fact that the suspended or disbarred attorney has filed his petition for reinstatement and that a hearing on the petition will be held. The notice further states that any person desiring to be heard or having relevant information may communicate with the Administrator of the ARDC regarding this information.

The Administrator may file objections to a petition for reinstatement up to 14 days prior to the date set for a hearing on the petition. A copy of any such objections must be served on the petitioner. The Administrator has a right to participate in the hearing and present matters adverse to the petition. Dis. Com. R. 414.

Rule 767(f) sets forth factors to be considered by the Hearing Panel when it conducts a hearing on the petition for reinstatement. The panel may consider any other factors it deems appropriate in order to determine the petitioner's rehabilitation, present good character and current knowledge of the law. The six factors identified in Rule 767(f) are:

1. the nature of the misconduct for which the Petitioner was disciplined;

2. the maturity and experience of the Petitioner at the time discipline was imposed;

3. whether the Petitioner recognizes the nature and seriousness of the misconduct; when applicable, whether Petitioner has made restitution;

5. the Petitioner's conduct since discipline was imposed; and

6. the Petitioner's candor and forthrightness in presenting evidence in support of his petition.

The Supreme Court has held that the focus of consideration in reinstatement proceedings is the petitioner's rehabilitation and character. In re Polito, 132 Il1.2d 294, 138 N.E.2d 298 (1989). The Supreme Court has defined rehabilitation as a matter of one's return to a beneficial, constructive and trustworthy role. In re Anglin, 122 Ill.2d 531, 524 N.E.2d 550 (1988). Rehabilitation has been held to be the most important factor in reinstatement proceedings. In re Fleischman, 135 Il1.2d 488, 553 N.E.2d 1152 (1990). The petitioner has the burden of proving that he is rehabilitated and currently fit to practice law by clear and convincing evidence. It is not sufficient to prove that the petitioner's rehabilitation is "more probable than not." In re Anglin, supra. In the Anglin case, he Court held that the petitioner failed to rehabilitate himself in one crucial respect: he continued to believe in a "code of silence and nondisclosure of the misconduct of others." Based on the petitioner's refusal to answer questions about the involvement of other persons in stolen securities, the Court found that he was not "at present fully rehabilitated" and denied his petition for reinstatement. It is important to note that the Administrator does not have the burden to prove that the petitioner has llQl been rehabilitated or that he is not fit to practice law. In re Rothenberg, sul2ra..

The petitioner must produce affirmative evidence to support his petition. In one case, the Review Board held that the mere passage of time and evidence of a good reputation was not sufficient to demonstrate fitness to practice law, and remanded the case to the Hearing Board on that basis. In re Elman, M.R. 1286 (1974).

Rehabilitation may be demonstrated by evidence of the petitioner's conduct since discipline was imposed. The Supreme Court has taken note of such factors as a blameless life since disbarment, In re Groshong, 83 Il1.2d 27, 413 N.E.2d 1266 (1980); charitable and volunteer service work, In re Kuta, 86 Il1.2d 154, 427 N.E.2d 136 (1981), substantial contributions of service and financial support to religious and charitable institutions, In re Baskes, M.R. 3218 (1984); successful employment and a good work record, In re Edelstein, M.R. 3036 (1985) and "an outstanding current knowledge of the law," In re Keane, 102 Il1.2d 397, 466 N.E.2d 208 (1984).

I.  The Court has held that the failure to recognize the seriousness of the offense that led to a lawyer's suspension or disbarment is sufficient reason to deny reinstatement. In re Gottlieb 109 I11.2d 267, 486 N.E.2d 921 (1985). The court has also held, however, that a petitioner who believes himself to be innocent of the offense for which he was disciplined and has maintained his innocence throughout all proceedings in which he was involved is not required to confess guilt of that offense. Consistently maintaining one's innocence is not the same as the failure to recognize the seriousness of an offense. In re Mandell, 89 I11.2d 14, 431 N.E.2d 382 (1982).

Whenever the Court makes a determination that restitution is owed by the petitioner, payment of restitution is generally a condition of reinstatement, except ire those rare instances where repayment is conclusively established by the petitioner to be impossible. In re Berkley, 96 I11.2d 404, 451 N.E.2d 848 (1983). Restitution is usually required when a disbarred attorney has received an improper benefit or has caused a loss to some victim. In re Fleischman, supra.

The seriousness of the offense which lead to the suspension or disbarment may alone be sufficient to deny the petition for reinstatement. In the case of In re Alexander, 128 I11.2d 524, 539 N.E.2d 1260 (1989), the Supreme Court denied a petition for reinstatement on the basis of the seriousness of the misconduct. That conduct involved an extensive participation in a scheme to give bribes to members of the board of tax appeals of Cook County. The Supreme Court has also stated that certain infractions are so serious that an attorney committing them should never be reinstated to the practice of law. In re Mandell, supra, In re Rothenberg, supra.

The petitioner's candor and forthrightness in presenting evidence in support of his petition is also a factor. The conduct of the petitioner at and during the hearing proceedings may be taken into account. The Court has noted such things as attempts to deceive the hearing panels, In re Schechet, 105 I11.2d 516, 475 N.E.2d 831 (1985), and failure to express remorse or repentance, In re Ruther, M.R. 1431(1981) as reasons for denying reinstatements.

At the conclusion of the hearing, the Hearing panel is required to make a report of its findings and recommendations. A copy of the report is served on the petitioner and on the Administrator. The review procedure is the same as that provided in Rule 753 for disciplinary cases. As noted above, if the Supreme Court denies a petition for reinstatement, the Petitioner may not file another petition for reinstatement for at least two years after the date the court denied his petition. If a Petitioner anticipates that the Supreme Court will deny his petition because of the adverse matters presented by the Administrator, the petitioner may file a motion for leave to withdraw his petition. If that motion is granted, the petitioner is required to wait only one year before filing a subsequent petition for reinstatement.

If the Court allows a petition for reinstatement, it may make the reinstatement conditional or place the reinstated attorney on probation for a period of time. For example, in In re Goering, M.R. 6215 (1990), the Court reinstated an attorney on a probationary basis for a period of one year. The conditions of probation included requirements that the attorney complete 30 hours of continuing legal education, consult with another attorney regarding fee and billing practices and subscribe to professional journals. The Court's order of reinstatement provided that noncompliance with the conditions of probation could result in a revocation of reinstatement.

A disciplined attorney who is required to petition the Court for reinstatement would do well to consult an attorney experienced in disciplinary matters as soon as possible after the entry of the disciplinary order. It is important for disciplined attorneys to immediately consider what they are required to do under the Supreme Court Rules, what they are prohibited from doing and what they should do so that they can demonstrate rehabilitation at a later date. It is a mistake for an attorney to wait until he is ready to prepare his petition before he seeks legal advice from an experienced attorney.

O. Civil Contempt Proceedings

Civil contempt proceedings typically arise out of an attorney's failure to comply with the requirements of a subpoena ad testificandum or a subpoena duces tecum served on him at the direction of the Administrator or the Inquiry Board. Supreme Court Rule 754 provides that any failure to comply with the requirements of a subpoena may be reported to the Court. When the Administrator reports such conduct to the Court, he asks the Court to issue a rule to show cause why the person under subpoena, usually a respondent, should not be held in indirect civil contempt for his failure to comply with the subpoena.

As a result of the Administrator's report, the Supreme Court issues the rule to show cause. The rule to show cause is served on the respondent and he is ordered to answer the rule within an appointed period of time. If the respondent fails to answer or if his answer admits that he has not complied with all of the requirements of his subpoena, the court may enter an order holding him in indirect civil contempt and setting a date for the sentencing.

The sentencing typically occurs before the Supreme Court in Springfield. The respondent is allowed to address the Court for ten minutes. The Administrator is given ten minutes to respond. The respondent is allowed five minutes for rebuttal. See, for example, In re Cockrell, M.R. 6901 (1991). If the respondent does not appear for the sentencing, the Court issues a Writ of Attachment directing the Sheriff of the county in which the respondent resides to bring the respondent to the clerk of the circuit court in that county to post a cash bond, pending his appearance before the Supreme Court on another date. If the respondent does not post the required bond, he is taken into custody by the Sheriff until the Sheriff delivers him to the Court for the scheduled sentencing date. The respondent is usually ordered to pay the costs incurred by the marshal! of the Supreme Court in serving the Writ of Attachment. See, for example, In re Guilford, M.R. 6615 (1990); In re Del Giudice, M.R. 6513 (1990).

In one recent case, the Court held a respondent in indirect civil contempt for failing to comply with a subpoena duces tecum served on him by the ARDC. The respondent failed to appear at the sentencing hearing on three different days. As a result, the Court issued a Writ of Attachment. The Sheriff of Cook County took the respondent into custody and released him upon receipt of a $5000 bond. At the subsequent sentencing, the respondent was suspended from the practice of law until further order of the Court, ordered to be incarcerated by the Sheriff of Cook County until he purged himself of contempt by complying with the subpoena duces tecum and fined $500. The respondent complied with the subpoena, was released from bond and received a refund of $4500. En re Zawarus, M.R. 6749 (1991). In another case, the respondent filed a motion to strike his name from the role of attorneys pursuant to Supreme Court Rule 762(a) while the civil contempt proceeding was pending. The Court allowed the respondent's motion, disbarred him, merged the contempt proceeding with the disbarment and terminated the contempt proceeding. In re Sparks, M.R. 6141(1990).

As a practical matter, however, respondents who are brought to the Supreme Court on a report of indirect civil contempt usually contact counsel for the Administrator and make arrangements to comply fully with the requirements of any outstanding subpoena. This may include appearing at the office of the Administrator to testify or to produce any of the items specified in a subpoena duces tecum. If a respondent complies with the requirements of the subpoena while a civil contempt proceeding is pending in the Supreme Court, the Administrator usually reports the respondent's compliance with the subpoena to the Court. In response to the Administrator's report of compliance, the Court typically discharges any outstanding rule to show cause and terminates the proceeding.

VI. POST-DISCIPLINARY ISSUES

A. Duties of the Disciplined Attorney

1. Costs

Pursuant to Supreme Court Rule 773, it is the duty of a respondent to reimburse the ARDC for costs incurred in the investigation, hearing and review of matters brought to its attention under Article VII of the Supreme Court Rules and which result in the imposition of discipline on the attorney. A respondent must also reimburse the ARDC for costs involved in the investigation of alleged violations of the terms and conditions of any disciplinary order, when such violations are later proved. A respondent must pay for the costs involved in any proceeding where the enforcement of any rule, judgment or order of the Supreme Court was made necessary by an act or omission on the part of the respondent. When a respondent fails to comply with a request from the Inquiry Board or the Administrator to provide information concerning a matter under investigation he must reimburse the ARDC for costs incurred to compel his appearance and to transcribe his testimony. Similarly, if a respondent fails to comply with a request from the Inquiry Board or the Administrator to provide records from a financial institution, the respondent is responsible for reimbursing the ARDC for costs incurred to obtain copies of those records.

Costs for which the ARDC may charge a respondent indude witness fees, duplication of documents, travel expenses of witnesses, as well as travel expenses of the Administrator, his staff, members of the Inquiry, Hearing and Review Boards, bank charges for producing records, expenses incurred in the physical or mental examination of a respondent, fees of expert witness, and court reporting expenses. Supreme Court Rule 773(a).

When the attorney's duty to reimburse the ARDC for costs arises out of a matter for which he has been disciplined, the Administrator prepares an itemized statement of costs incurred. That statement is filed with the Clerk of the Supreme Court and is made part of the record in the disciplinary case. A copy of the statement of costs is served on the respondent. Rule 773 requires the respondent to pay the costs within 30 days of service. If the respondent contests the amount of the costs or fails to pay within 30 days of service, the Administrator may petition the Court for an order assessing costs against the respondent and directing the respondent to pay the costs, in full or in part, to the ARDC. If such an order is entered, the respondent is required to pay the amount of costs incurred within 30 days after the entry of the order. If payment is not made within that time, the Court enters a judgment against the respondent for the amount of assessed costs. The Administrator may the pursue enforcement proceedings on the judgment in any circuit court of record. See, for example, In re Ross, M.R. 4363 (1991); In re Frantz, M.R. 4251 (1991).

All costs assessed against a respondent in proceedings which result in his disbarment or suspension until further order of Court must be paid before he petitions for reinstatement. Supreme Court Rule 773(d).

2. Disbarment or Suspension for a Period of Six Months or More

Supreme Court Rule 764 imposes several duties on lawyers who are disbarred, voluntarily or involuntarily, or suspended from the practice of law for a period of six months or more. Compliance with each of these requirements is a condition for reinstatement of the disciplined attorney. It is noteworthy that the provisions of Rule 764 do not limit these requirements to suspensions until further order of the court. It is possible that a lawyer who is suspended for a specified period of time may not be reinstated at the end of that period of time if he does not comply with these requirements, even though he is not otherwise required to petition for reinstatement. The rule also provides that failure to comply with these requirements constitutes contempt of court.

Upon entry of the final order of discipline, the disciplined attorney may not maintain a presence or occupy an office where the practice of law is conducted. The disciplined attorney is required to take action necessary to cause the removal of any indicia of the disciplined attorney as a lawyer, counselor at law, legal assistant, legal clerk, or similar title. This requirement is consistent with the holding in the Supreme Court opinion in In re Kuta, 86 Il1.2d 154, 427 N.E.2d 136 (1981). In that case, the Supreme Court stated that it was not appropriate for a suspended attorney to act as a law clerk in a law office in a position where he would have access to clients and be tempted to engage in the practice of law.

When the disciplined attorney vacates his law office, he may not destroy the records related to his law practice. Rule 764 requires that the disciplined attorney maintain the following documents: files, documents, and other records relating to any matter which was the subject of a disciplinary investigation or proceeding;

2. files, documents, and other records relating to any and all terminated matters in which the disciplined attorney represented a client at any time prior to the imposition of discipline;

3. files, documents, and other records of pending matters in which the disciplined attorney had some responsibility on the date of, or represented a client during the year prior to, the imposition of

4. all financial records related to the disciplined attorney's practice of law during the seven years preceding the imposition of discipline, including but not limited to bank statements, time and billing records, checks, check stubs, journals, ledgers, audits, financial statements, tax returns, and tax reports; and all records related to compliance with Rule 764.

Within 21 days after the entry of the final order of discipline, the disciplined attorney is required to do several things. The attorney must notify by certified mail, return receipt requested, all clients he represented on the date of the imposition of discipline. Supreme Court Rule 764(c). He must notify these clients of the following matters: the action the Supreme Court took against him;

2. the fact that he may not continue to represent them during the period of discipline;

3. that they have the right to retain another attorney; and that their files, documents, and other records are available to them, and designate the place at which these records are available to the chent.

Also within 21 days after the effective date of an order of discipline, the disciplined attorney must file with the Clerk of the Supreme Court, and serve on the Administrator of the ARDC, an alphabetical list of the names, addresses, telephone numbers and file numbers of all clients whom the disciplined attorney represented on the date of, or during the year prior to, the imposition of discipline. At the same time, the disciplined attorney must serve on the Administrator a copy of each notification he is required to have served on his clients. Supreme Court Rule 764(d).

Within this time frame, the disciplined attorney also must file a notice with the court in all pending matters in which the disciplined attorney was counsel of record and request the withdrawal of his appearance. The notice must advise the court of the disciplinary action taken by the Supreme Court against the respondent. The notice must be served on the disciplined attorney's former clients and all other parties who have entered their appearance. Supreme Court Rule 764(e).

In addition to the clients and the courts, the disciplined attorney also must notify other persons within 21 days of the effective date of the order of discipline. Rule 764(f) requires that notice by certified mail, return receipt requested, of the disciplinary action taken by the Supreme Court and the lawyer's inability to practice law during the period of discipline be sent to the following persons:

4. all attorneys with whom the disciplined attorney was associated in the practice of law on the effective date of the order of discipline;

2. all attorneys of record and matters in which the disciplined attorney represented a client on the effective date of the order of discipline;

3. all parties not represented by an attorney in matters in which the disciplined attorney represented a client on the effective date of the order of discipline; all other jurisdictions in which the disciplined attorney is licensed to practice law; and  

 5. all governmental agencies before which the disciplined attorney is entitled to represent a person.

Rule 764(g) requires that an attorney take additional action within 35 days after the effective date of the order of discipline. Within that period of time, the disciplined attorney must file with the Clerk of the Supreme Court and serve on the Administrator an affidavit stating:

1. the action the disciplined attorney has taken to comply with the order of discipline;

2. the action the disciplined attorney has taken to comply with the requirements of Rule 764;

3. the arrangements made to maintain the files and other records specified in Rule 764;

4. the address and telephone number at which subsequent communications may be directed to the disciplined attorney; and

5. the identity and address of all other state, federal, and administrative jurisdictions to which the disciplined attorney is admitted to practice law.

If at any time during the disciplined attorney's period of suspension or disbarment he changes his address or telephone number, he must notify the Administrator of that change within 35 days of the change. Supreme Court Rule 764(i).

3. Compensation Arising from Former Practice of Law

Supreme Court Rule 764(h) provides that a disciplined attorney may receive compensation for legal services rendered prior to the effective date of the order of discipline under certain circumstances. Any compensation received must be on a quantum meruit basis. The disciplined attorney may not receive any compensation related to the referral of a legal matter to an attorney or attributed to the "good will" of his former law office. The disciplined attorney may only receive compensation on a quantum meruit basis if he has complied with the provisions of Supreme Court Rule 764. If the attorney had rendered services prior to the date of his discipline in a matter in which a legal proceeding was instituted at any time prior to the imposition of discipline, he may not receive compensation regarding that matter without first receiving the approval of the tribunal before which the matter is pending.

Rule 764 further provides that the disciplined attorney shall not receive any compensation related to any agreement, sale, assignment or transfer of any aspect of the disciplined attorney's former law office without first receiving the approval of the Supreme Court. Before entering into any such agreement for sale, the disciplined attorney must file a petition in the Supreme Court fully disclosing the transaction contemplated, attaching any and all related proposed agreements and documents, and request the approval of the Supreme Court of the transaction. A copy of the petition must be served on the Administrator. The Administrator may answer or otherwise plead to the petition within 28 days of service. If the Supreme Court determines that an evidentiary hearing on the petition is necessary, it may refer the matter to the Circuit Court. If such a hearing is unnecessary, the Court may enter an order allowing the petition to sell, assign or transfer any aspect of the former law office. See, for example, In reRichman, M.R. 6560 (1991).

4. Modifications

The requirements of Rule 764 may be modified. Either the respondent or the Administrator may file a motion with the Supreme Court requesting that it modify any of the requirements contained in Rule 764. The court may, at its discretion, allow such modifications. Supreme Court Rule 764(i).

B. Duties of Affiliated Attorneys

Supreme Court Rule 764 imposes duties not only on the attorney who is disciplined but on any and all attorneys who are affiliated with the disciplined attorney as a partner or associate. Those attorneys so affiliated must take reasonable action necessary to ensure that the disciplined attorney complies with the requirements of Rule 764 regarding the maintenance of records, withdrawal from his law office, removal of any indicia of the disciplined attorney as a lawyer, legal assistant or law clerk, notification to clients, filing of a list of clients with the Supreme Court and the Administrator, and notification to courts in all pending matters in which the disciplined attorney was counsel of record. Each affiliated attorney must file with the Clerk of the Supreme Court within 35 days of the effective date of the order of discipline, a certification setting forth in detail the actions taken to ensure that the disciplined attorney complied with this rule. He may do so by a representative. A copy of any such certification must be served on the Administrator.

C. Criminal Contempt Proceedings

The Administrator of the ARDC investigates alleged violations by disciplined attorneys of suspension and disbarment orders. If the Administrator determines that there is evidence that the lawyer has held himself out as able to practice law or has in fact engaged in the unauthorized practice of law in violation of a suspension or disbarment order, the Administrator initiates a proceeding by filing a report of the alleged violation with the Supreme Court of Illinois. This proceeding is in the nature of a criminal contempt action. The Administrator's report requests that the Court issue a rule to show cause why the disciplined attorney should not be held in indirect criminal contempt for his alleged violation of the terms and conditions of the suspension or disbarment order.

Upon receipt of the Administrator's report, a copy of which is served on the disciplined attorney, the Supreme Court typically issues a rule to show cause why the attorney should not be held in indirect criminal contempt. The rule to show cause is served on the respondent. The respondent is ordered to answer in writing by a certain date. After the time within which the suspended or disbarred attorney is allowed to answer the rule to show cause, the Supreme Court may enter an order referring the matter to a judge of one of the circuit courts. The Supreme Court may direct the circuit court judge to conduct an evidentiary hearing and to make findings of fact. See, for example, In re Speiser, M.R. 6052 (1991).

The proceedings in the circuit court may involve an adversarial hearing at which both parties present witnesses and documentary evidence. It also may involve filing a statement of contested and uncontested facts and proposed findings of fact. The circuit court may request or require an oral argument related to the proposed findings of the parties. At the conclusion of the proceedings, the circuit court makes findings and transmits those findings and the evidentiary record to the Clerk of the Supreme Court. See, for example, In re Smith, M.R. 6230 (1991).

The burden of proof in criminal contempt matters is beyond a reasonable doubt. Upon its review of the record, the Supreme Court may enter an order dismissing the proceeding because the Administrator failed to establish beyond a reasonable doubt that the respondent engaged in the unauthorized practice of law during his suspension or disbarment. See, for example, In re Samuels, M.R. 6171 (1990). If the Court holds the disciplined attorney in indirect criminal contempt, the Court will set a date for the sentencing of the attorney. At the sentencing, the Administrator and the respondent are allowed to address the Court regarding its recommendations for sentencing. The respondent is usually allowed to address the Court first. He is permitted ten minutes. The Administrator receives ten minutes, and the respondent has five minutes for rebuttal.

The Court may impose any sentence it deems appropriate including a fine, incarceration, or action which impacts on the attorney's license. For example, in In Re Ruther, M.R. 4972 (1988), the Supreme Court dismissed the criminal contempt proceeding upon the agreement by the respondent that he would never petition for reinstatement to the bar of Illinois. In an earlier case, the Court held a disbarred lawyer in contempt for his unauthorized practice of law, sentenced him to the Cook County jail for one year and assessed a fine of $1,000. People ex ref. Chicago Bar Ass'n v. Barasch, 21 Il1.2d 407, 173 N.E.2d 417 (1961). In other cases, the Court has fined (In re Orth, M.R. 3240 (1985)) or jailed (In re Koenig, M.R. 1625 (1979)) attorneys who have violated disbarment orders. The Court has also disbarred lawyers who were originally suspended for engaging in the practice of law in violation of the suspension orders. In re Reiser, M.R. 2269, (1980). More recently, the Court sentenced an attorney to make restitution in the amount of $300. In re Terrell, M.R. 6016 (1991). In other cases, the criminal contempt was merged with the respondent's suspension (In re Speiser (M.R. 6052 (1991)) or disbarment, (In re Devlin, M.R. 6436 (1990)) and the contempt proceeding terminated. As noted above, costs incurred by the Administrator to investigate the alleged violations of the disciplinary order, if proved, must be paid by the respondent. Supreme Court Rule 773(b).

VII. CONCLUSION

Each year a greater number of lawyers is called upon by the ARDC to account for their conduct. ARDC proceedings at every level present many dangers to the unwary practitioner. It is necessary to be aware of all applicable Supreme Court and Commission Rules as well as Supreme Court rulings that impact on disciplinary proceedings. These rules are amended regularly.

The ARDC is not the place for a dabbler in disciplinary proceedings. Depending on the seriousness of the matter under investigation and the opportunities for the respondent to aggravate or mitigate his situation, it may be critical to obtain qualified counsel at the outset of the investigation.