Docket No. 86982-Agenda 12-May 1999.
In re GEORGE C. HOWARD, JR., Attorney, Respondent.
Opinion filed December 2, 1999.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
This case arises from an action filed by the Administrator of the Attorney Registration and Disciplinary Commission(Commission) against respondent, George C. Howard, Jr., pursuant to Supreme Court Rule 753(b) (166 Ill. 2d R. 753(b)).The five-count complaint charged respondent with making a misrepresentation concerning a past suspension in a petition topractice pro hac vice in another jurisdiction; neglecting a criminal appeal; engaging in the practice of law while under aprior suspension by this court; and failing to promptly refund unearned fees. With regard to some of these alleged acts, thecomplaint also charged respondent with conduct involving dishonesty, fraud, deceit or misrepresentation. A panel of theHearing Board found the charges proven, with the exception of the allegations of dishonesty, and recommended thatrespondent be suspended from the practice of law for two years. The Review Board adopted the factual findings of theHearing Board, but reduced the recommended suspension to a period of three months. On leave of this court, theAdministrator has filed exceptions (166 Ill. 2d R. 753(e)), contending that in reducing the recommended sanction, theReview Board erroneously downplayed the gravity of respondent's current misconduct and prior disciplinary record.
BACKGROUND
Respondent was admitted to the Illinois bar in 1962, and has practiced predominantly in the specialty of criminal defense.His disciplinary problems in this state began on December 12, 1984, when the United States Court of Appeals for theSeventh Circuit found that he had neglected three criminal appeals and ordered his name stricken from its roll of practicingattorneys. Respondent was reinstated by the Seventh Circuit about five years later and permitted to resume practiceeffective January 1, 1990. In the meantime, in 1988, the Review Board issued a reprimand against respondent based uponhis Seventh Circuit suspension and, in addition, his neglect of another criminal case. Then, on September 29, 1995, thiscourt disciplined respondent for failing to communicate with clients; failing to refund unearned fees; converting funds; andneglecting two more criminal appeals. The behavior giving rise to the September 1995 discipline occurred between 1990and late 1993. This court sanctioned respondent by suspending him from the practice of law for 24 months, but staying allof this period except the first five months, placing respondent on a period of probation subject to certain conditions. As aresult, respondent was suspended from the practice of law from September 29, 1995, until February 28, 1996. In re GeorgeHoward, MR No. 11563 (September 29, 1995).
On June 11, 1997, the Administrator brought the complaint presently at issue. Count I charged respondent with knowinglyfailing to report his Seventh Circuit suspension in a petition to practice pro hac vice before the United States District Courtfor the District of Alaska. In proceedings before the Alaska court, Reshat Shabani had been convicted of conspiracy todistribute cocaine. He subsequently retained respondent to represent him in matters arising from the conviction. On June 5,1991, respondent filed a verified petition to appear pro hac vice on Shabani's behalf in the Alaska court. In the petition,respondent averred that he had "not been suspended for misconduct or any other causes," failing to disclose his SeventhCircuit suspension of December 1984. Thus, count I charged respondent with making a false statement of fact to a tribunal,in violation of Rule 3.3(a)(1) of the Rules of Professional Conduct(1); offering false evidence, in violation of Rule3.3(a)(4); making a false statement in connection with an application for admission to the bar, in violation of Rule 8.1(a);engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4); and engaging inconduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5), or conduct tending to defeat theadministration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 771 (134Ill. 2d R. 771).
In count II, the Administrator alleged that respondent had neglected Shabani's case by failing to file an appellate brief andfailing to return a $25,000 unearned fee Shabani had advanced to him for that case. Thus, count II charged respondent withfailing to act with reasonable diligence in representing a client, in violation of Rule 1.3; failing to make reasonable efforts toexpedite litigation consistent with the client's interest, in violation of Rule 3.2; failing to promptly refund unearned fees onwithdrawal from the case, in violation of Rule 1.16(e); and conduct prejudicial to the administration of justice in violationof Rule 8.4(a)(5) and Supreme Court Rule 771 (134 Ill. 2d R. 771).
In counts III through V, the Administrator alleged that during the period of respondent's suspension from September 29,1995, to February 28, 1996, he engaged in the unauthorized practice of law by accepting fees from and providing legaladvice to three criminal defendants, Clarence Williams, Ralph Williams, and Raymond Olivarez. The complaint furtheralleged that throughout his consultations with each of these defendants, respondent failed to disclose that he was undersuspension. Counts III through V accordingly charged respondent with practicing law in a jurisdiction where doing soviolates the regulation of the legal profession in that jurisdiction in violation of Rule 5.5(a); and engaging in conductinvolving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4), and conduct prejudicial to theadministration of justice in violation of Rule 8.4(a)(5) and Supreme Court Rule 771 (134 Ill. 2d R. 771).
HEARING BOARD PROCEEDINGS
Counts I & II: The Shabani Case
With regard to the pro hac vice petition, the Hearing Board found clear and convincing evidence that respondent had madea false statement in failing to disclose his suspension and that he had engaged in conduct prejudicial to the administration ofjustice. However, the Board found insufficient evidence that the misstatement was either knowing or intentional or thatrespondent engaged in conduct involving dishonesty, fraud or deceit.
Respondent admitted that at the time he executed the pro hac vice petition, he was cognizant of his recent suspension andthat the Alaska court required its disclosure. However, the petition was prepared by his local counsel and presented to himalong with other documents for signature. Respondent testified that, in the haste of reviewing and signing documents, hehad neglected to read the petition, but that if someone had called the misstatement to his attention, he would haveacknowledged the suspension. The Board considered it mitigating that the misstatement involved a prior suspension ratherthan a present one, as, at the time respondent filed the petition, he had been reinstated in the Seventh Circuit for 18 months.The Board also accepted respondent's testimony that, in any event, the suspension would not have hindered his admissionto appear before the Alaska court: the suspension barred his practice only within the Seventh Circuit, and, at the time hesigned the pro hac vice petition, he was a member in good standing of the Ninth Circuit Court of Appeals, whichencompassed the district court of Alaska. Further, according to respondent, he had been admitted to practice in the NinthCircuit subsequent to his suspension from the Seventh Circuit, and also had appeared pro hac vice before the district courtof Alaska on other matters several times between the years of 1971 and 1991.
As to count II, the Board found clear and convincing evidence that respondent had neglected Shabani's appeal and failed topromptly return unearned fees upon his withdrawal from Shabani's case. When Shabani retained respondent in May of1991, Shabani's brother, Nick, advanced respondent a $25,000 retainer on Shabani's behalf. Respondent initially pursuedpost-trial relief in Shabani's case, and when that proved unsuccessful, filed an appeal before the Ninth Circuit. However, hethen failed to file an opening brief by the September 16, 1991, due date. On February 11, 1992, the Ninth Circuit issued anorder to show cause why respondent should not be sanctioned for his failure to file the brief and mandating that the brief befiled within 11 days in order to avoid dismissal of the appeal. Replying to the order, respondent explained that he had been"constantly on trial" since filing the appeal and had delegated responsibility for all of his appeals to "other personnel" in hisoffice. Respondent stated that he had not learned until February 10, 1992, that the brief was never filed. Attorney ElretaDickinson testified that respondent had given her responsibility for his appeals during this time period, but could not recallspecifically being delegated the Shabani case. Dickinson testified that respondent was upset when he learned the brief hadnot been done and that he temporarily ceased assigning her appeals as a result of this occurrence. At the end of February orearly March 1992, respondent withdrew from Shabani's appeal, and Alan M. Caplan was substituted as Shabani's counsel.Caplan completed Shabani's appeal, securing a reversal of his conviction by the Ninth Circuit (United States v. Shabani,993 F.2d 1419 (9th Cir. 1993)), although the conviction was later reinstated by the United States Supreme Court (UnitedStates v. Shabani, 513 U.S. 10, 130 L. Ed. 2d 225, 115 S. Ct. 382 (1994)).
In February 1992, when he was substituted as counsel in Shabani's case, Caplan wrote a letter to respondent requesting areturn of the $25,000 retainer. When the refund was not forthcoming, Caplan sent three more demand letters to respondenton March 19, 1992, April 15, 1992, and June 2, 1992, on behalf of Nick and Reshat Shabani, again to no avail. Over oneyear later on October 1, 1993, respondent entered into a written agreement with Nick under which respondent promised torepay $20,000 of the funds. The agreement stated that Nick had advanced $25,000 to respondent to represent his brother "incertain post-trial proceedings." The agreement noted that with regard to the post-trial matters, respondent had made twotrips to Alaska, but had then failed to prepare an appellate brief. Accordingly, respondent promised to return $20,000 of theoriginal amount, with $5,000 due at execution of the agreement, and the $15,000 balance by December 1, 1993. TheHearing Board observed that as of the November 20, 1997, hearing before it, $5,000 was still unpaid.
Counts III through V: Practicing Law While Under Suspension
The Hearing Board concluded that respondent had engaged in the unauthorized practice of law under Rule 5.5(a), andcommitted acts prejudicial to the administration of justice under Rule 8.4(a)(5) and Supreme Court Rule 771, by givinglegal advice for consideration to Clarence Williams, Ralph Williams, and Raymond Olivarez, while under suspension bythis court. However, the Board disbelieved testimony on behalf of the three defendants that respondent had never informedthem that he was under suspension. Accordingly, the Board found insufficient proof to support the charge that respondenthad engaged in conduct involving dishonesty, fraud or misrepresentation with regard to the three defendants.
The Board consolidated its findings on counts III, IV and V, noting that there was similar proof as to each charge. TheBoard first concluded that, by respondent's own admission, he had consulted with each of the three defendants while undersuspension and engaged in "discussions which required legal knowledge and skill." Respondent had also accepted legal feesfrom these individuals and deposited them into his personal account. However, the Board also recognized respondent'sposition that he had consulted with these individuals out of a sense of responsibility to his firm and a need to ensure thatmatters were handled correctly during his suspension. Thus, the Board concluded that, "[w]hether intentionally or not,"respondent engaged in the practice of law during his suspension.
At the hearing, Clarence Williams testified that he contacted respondent in late November 1995. Respondent met brieflywith him at the Cook County jail, took notes about his case, and told him that he would be filing a motion to suppress in hiscase, based upon an unlawful police search. Respondent also took a retainer fee on Clarence's behalf and promised toappear at a December 19, 1995, court date. Although respondent eventually refunded the fee, he neither filed the motion norappeared at the December hearing. Clarence retained a public defender and pled guilty to the charge against him, receivinga six-year sentence.
Ralph Williams was taken into custody in December 1995 on charges of robbery and armed robbery. His mother Dorothycontacted respondent on Ralph's behalf, and respondent agreed to "take care of" the matter, accepting a retainer fee fromDorothy. Ralph testified that respondent met with him in jail in January or early February 1996 and discussed the chargesagainst him. Following his suspension, respondent represented Ralph to the conclusion of his case.
On November 3, 1995, Raymond Olivarez pled guilty to conspiracy to distribute narcotics, and received a sentence of 70months in prison. Olivarez's daughter, Rachel Fernandez, testified that she called respondent's office in January 1996 andspoke to respondent, who scheduled a meeting with her in his office the following Saturday. At the meeting, Fernandezpresented respondent with pertinent court documents. According to Fernandez, respondent consulted some "big law books,"and advised her that her father had been sentenced in too high of a range and that his sentence could be reduced. Herequested a retainer, which Fernandez paid the following Monday. On February 2, 1996, respondent told Fernandez he wasplanning to "file a motion."
Before the Board, respondent admitted providing legal advice to the three defendants, but argued, "[A]t no time *** did Iappear in any court, did I file any motion in any court, *** take any deposition ***." Respondent also provided evidencethat he and his office staff had informed each of the three defendants that he was suspended and that he could not give legaladvice or appear in court during this period; nonetheless, the defendants demanded his services. The Hearing Boardaccepted respondent's position on this point, and reasoned that, because of the relative brevity of his suspension, hisreputation, and the fact that he had others in his office handling most of his cases, the three defendants likely elected to hirehim despite the suspension.
Recommendation
The Administrator asserted that in light of respondent's behavior and prior discipline, disbarment was warranted.Respondent offered no alternative sanction. In mitigation, the Hearing Board recognized respondent's life of service toothers, as evidenced by the accolades, awards and letters of appreciation he received. Respondent volunteered in hiscommunity, his church, and various social organizations, and had provided pro bono representation to his church for 20years, as well as to many individuals. He had also lectured free of charge at local law schools. The Board also emphasizedthat, in contrast to other cases before it in which disbarment was recommended, the conduct at issue involved no dishonestmotive or moral turpitude. In aggravation, the Board noted the "seriously aggravating impact" of respondent's priordiscipline by the Seventh Circuit, the Review Board, and this court, the fact that he had never repaid $5,000 of the unearnedretainer advanced by Shabani, and the seriousness of his unauthorized practice of law. The Board recommended a two-yearsuspension.
DETERMINATION OF THE REVIEW BOARD
In reducing respondent's recommended sanction, the Review Board noted that, inter alia, by the time this case was beingbriefed before it, respondent had made full restitution of Shabani's fee advance. The Review Board further observed thatrespondent's behavior, both in this case and his prior disciplinary cases, involved no dishonesty; that his failure to promptlyreturn Shabani's funds was attributable to respondent's cash flow problems; and that the Hearing Board had failed to findthat respondent's practice of law, though unauthorized, was intentional. Thus, in light of the significant evidence inmitigation, the Review Board recommended that respondent be subjected to three months' suspension.
ANALYSIS
The sole issue in this case concerns the appropriate sanction to impose upon respondent. The Administrator argues that, inreducing the recommended sanction from two years' to three months' suspension, the Review Board erroneouslydownplayed several incidences of serious misconduct proven to have occurred in this case. She further asserts that in lightof significant history of prior discipline, disbarment is the more appropriate sanction. At the very least, the Administratorurges, we should adopt the suspension recommended by the Hearing Board.
Although, in arriving at a sanction, this court affords deference to the recommendations of the Hearing and Review Boards,such recommendations are merely advisory, and the ultimate responsibility for imposing discipline rests with this court. Inre Chandler, 161 Ill. 2d 459, 472-73 (1994). We approach our analysis with the recognition that, in any disciplinaryproceeding, our goal is not to punish the attorney but rather to protect the public from incompetent or unscrupulousattorneys, to maintain the integrity of the profession, and to protect the administration of justice from reproach. In re Bell,147 Ill. 2d 15 (1992).
The Shabani Case
The Administrator first argues that, in reducing respondent's recommended sanction, the Review Board incorrectlydownplayed the fact that respondent made an affirmative misstatement in his pro hac vice petition. According to theAdministrator, the Review Board focused upon the finding that the misstatement was the result of a mistake, and ignoredthe Hearing Board's admonishment that respondent nonetheless had a duty to find and correct the error. Further, in failingto apprise the Alaska court of his suspension, respondent essentially deprived that court of information highly relevant to itsdecision to deny or possibly restrict his admission.
We find no evidence that the Review Board unduly downplayed this aspect of respondent's misconduct. Giving appropriatedeference to the Hearing Board's credibility findings (see, e.g., In re Holz, 125 Ill. 2d 546, 557 (1988) (Hearing Boardfindings entitled to deference by Review Board as well as this court)), the Review Board noted respondent's testimony that,had he noticed the inaccuracy in the petition, he would have corrected it to reflect the suspension. The Review Board alsoconsidered evidence that disclosure of the prior suspension probably would not have adversely affected respondent's Alaskapetition: it was confined only to the Seventh Circuit's jurisdiction, and at the time of the petition, respondent was already amember in good standing of the Ninth Circuit Court of Appeals, which encompassed the Alaska district court. Further, hehad practiced before the Alaska federal court on other occasions since the suspension without repercussions.
Next, the Administrator maintains that the Review Board improperly considered as a mitigating circumstance the fact thatrespondent eventually completed making restitution of Shabani's $25,000 fee advance. The Administrator argues that theReview Board completely disregarded respondent's initial refusal to return the funds despite Shabani's repeated demands,and the fact that the full refund did not occur until this case was being briefed before the Review Board in late 1997 or1998.
Rule 1.16(e) states that a lawyer who withdraws or is discharged from a case must promptly refund any portion of a feeadvance that has not been earned. 134 Ill. 2d R. 1.16(e). The failure to promptly return client funds will be subject todiscipline. See In re Smith, 168 Ill. 2d 269 (1995); In re Fox, 122 Ill. 2d 402, 410 (1988); In re Dorsey, 731 S.W.2d 252(Mo. 1987); ABA Lawyer's Manual on Professional Conduct 45:1202 (1997) (citing cases). Although there is scantguidance as to what time period is deemed "prompt" under the rules, it is readily apparent that a delay measured in yearswill fail the promptness test. ABA/BNA Lawyer's Manual on Professional Conduct 45:1103-04 (1997), citing, among otherauthorities, In re Jennings, 75 A.D.2d 676, 426 N.Y.S.2d 862 (1980) (discharged attorney delayed 22 months in refundingunearned fees). Delays of a shorter period also may be subject to disciplinary sanctions, especially when the lawyer hasdisplayed indifference to repeated demands by the client for return of the funds. Doyle v. State Bar, 32 Cal. 3d 12, 648 P.2d942, 184 Cal. Rptr. 720 (1982) (attorney delayed 10 months in returning client funds despite repeated requests); People v.Coyne, 913 P.2d 12 (Colo. 1996) (nine-month delay after promising to return funds).
We agree that the Review Board failed to properly consider respondent's clear violation of Rule 16(e). Respondentwithdrew from Shabani's case in late February of 1992. Thereafter, he failed to respond to four letters from Shabani's newcounsel demanding return of the $25,000 advance. It was not until October of 1993, over 18 months after he withdrew fromthe case, that respondent entered into a written agreement with Shabani admitting that he owed $20,000, and promising topay $5,000 at execution of the agreement and the remaining $15,000 by December 1, 1993. Even then, however, respondentdisregarded his promise, and did not refund $5,000 until late 1997 or early 1998, when this case was being briefed beforethe Review Board.
In its discussion of mitigating factors, the Review Board pointed out that respondent had completed full restitution to theShabanis, and that his failure to more promptly deliver the funds was "caused by cash flow problems related to the numberof repayments owed" rather than any corrupt motive. Making full restitution has been considered a proper mitigatingcircumstance. In re Rotman, 136 Ill. 2d 401, 422 (1990); but see In re Feldman, 89 Ill. 2d 7, 13 (1982) (restitution neverexcuses improper conduct). However, this is not so where the client's repeated demands for repayment have gone unheededfor 18 months, and funds are forthcoming only after the client is forced to resort to proceedings before the attorneydisciplinary system. Rotman, 136 Ill. 2d at 422-23 (1990); Fox, 122 Ill. 2d at 410. Although Rotman was a case involvingthe conversion of client funds, we find its logic equally applicable to the withholding of unearned fees. Further, we fail toview respondent's "cash flow problems" as a justification for his failure to even reply to Shabani's requests for his money,or, after finally executing an agreement, to reasonably honor his promise to pay.
Practice of Law
The Administrator next argues that the Review Board understated the seriousness of respondent's conduct in practicing lawduring his suspension. In particular, the Administrator claims, the Review Board erroneously considered as "substantiallymitigating" the fact that the Hearing Board stopped short of finding that respondent had "intentionally" practiced law.
Determining what conduct constitutes "practicing law" defies mechanistic formulation. In re Discipio, 163 Ill. 2d 515, 523(1994); People ex rel. Chicago Bar Ass'n v. Barasch, 406 Ill. 253, 256 (1950). However, as we have consistently held, thepractice of law encompasses not only court appearances, but also services rendered out of court (People ex rel. Chicago BarAss'n v. Barasch, 21 Ill. 2d 407, 414 (1961)), and includes the giving of any advice or rendering of any service requiring theuse of legal knowledge (In re Bodkin, 21 Ill. 2d 458, 461 (1961); People ex rel. Illinois State Bar Ass'n v. Peoples StockYards State Bank, 344 Ill. 462, 475-76 (1931); see also Discipio, 163 Ill. 2d at 523 (focus of inquiry whether activity inquestion required legal knowledge and skill so as to apply legal principles and precedent)).
It is clear that respondent engaged in the type of conduct unequivocally precluded under our cases. He met with threeclients, accepted fee advances from them and deposited these advances into his personal account. Then, after obtainingpertinent information from them, he exercised professional judgment with regard to their cases and advised themaccordingly. Respondent considered Clarence Williams' case and told him that a motion to suppress was necessary andwould be filed. He met with Ralph Williams in jail and, after taking notes of the meeting, advised him concerning futureaction in his case. Finally, he consulted with Rachel Fernandez, and, after examining what she believed were legalreferences, apprised her that he would seek a reduction in her father's prison sentence. These functions required theemployment of legal discretion, knowledge and skill.
With this in mind, there can be no doubt that respondent "intentionally" practiced law. It is suggested by both the ReviewBoard and respondent, however, that respondent is due a "lesser sanction," owing to the following language by the HearingBoard:
"The evidence was clear and convincing that in connection with each of the three criminal defendants, Respondentprovided legal advice and accepted a fee for legal services. Whether intentionally or not, Respondent engaged in thepractice of law during his suspension and thereby violated Rules 5.5(a) and 8.4(a)(5) of the *** Rules *** andSupreme Court Rule 771." (Emphasis added.)
We do not believe that this language was intended as a "finding" of diminished culpability with regard to respondent'sactions in this case. To the extent it was, it is against the manifest weight of the evidence. If the testimony of the threeclients were not enough, respondent admitted in his own testimony that he gave legal advice to these individuals knowingthat it was disallowed under the Rules. There can be no clearer proof of intent. As this court has previously stated, "[a]common maxim holds that ignorance of the law is no excuse, and this is particularly true in a case where the person whoclaims lack of knowledge of a relevant directive is a practicing attorney." In re Cheronis, 114 Ill. 2d 527, 535 (1986). Respondent further urges that while his conduct may have gone "over the line," he was merely attempting to keep hispractice afloat during his relatively brief suspension. He argues that the three defendants at issue compelled his immediateattention, and that he was not subject to the strictures of our Rule 764 (134 Ill. 2d R. 764).(2)
We recognize that, under certain circumstances, it remains unclear what tasks may be undertaken by attorneys who aresuspended yet not subject to Rule 764. Indeed, the imposition of a brief suspension does not mandate that the attorney giveup on his or her future livelihood. However, in this case, there should never have been a question that respondent's conductexceeded permissible boundaries. Our precedent has universally condemned the unauthorized giving of legal advice forconsideration; this maxim has never been subject to exception or qualification. It is the character of the respondent'sactivity that determines whether the practice of law has occurred, and it does not matter whether considerations of businessexpediency would be better served by a different rule. Discipio, 163 Ill. 2d at 524-25; In re Yamaguchi, 118 Ill. 2d 417, 427(1987). Thus, we find respondent's argument unavailing.
We now turn to the question of a proper sanction. The Administrator argues that respondent's conduct in this case, coupledwith his significant history of prior misconduct, demands a sanction far in excess of the three months advocated by theReview Board. We agree.
In order to ensure predictability and fairness, this court strives to impose sanctions consistent with those imposed in othercases involving comparable misconduct (In re Timpone, 157 Ill. 2d 178, 197 (1993); In re Weinberg, 119 Ill. 2d 309, 314(1988)); nonetheless, we also recognize that each case is unique and must be resolved in light of its own facts andcircumstances (Timpone, 157 Ill. 2d at 197).
As recognized by the Review Board, research fails to uncover a case directly analogous to this one. However, it is wellestablished that culpable neglect of a client's affairs is grounds for discipline (see, e.g., In re Samuels, 126 Ill. 2d 509, 531(1989); Fox, 122 Ill. 2d 402), and, in situations of repeated neglect, a lengthy suspension, even without a finding of moralturpitude (Smith, 168 Ill. 2d 269 (17 months' suspension with 12 months stayed); Samuels, 126 Ill. 2d 509 (one-yearsuspension for chronic neglect, misrepresentations and prejudice to clients); In re Johnson, 93 Ill. 2d 441 (1982) (one year);In re Levinson, 71 Ill. 2d 486 (1978) (six months); In re Taylor, 66 Ill. 2d 567 (1977) (one year)). Further, neglect ofcriminal cases warrants a more severe sanction because in such matters a client's very liberty is at stake. Bell, 147 Ill. 2d at39; Fox, 122 Ill. 2d at 409-10.
In the Shabani case, respondent filed an appeal and then essentially abandoned the matter by failing to file a brief, nearlycosting Shabani his right to appeal. We are unmoved by respondent's assertions that the appeal was subsequently completedby a new attorney; this is not a mitigating factor. See Smith, 168 Ill. 2d at 284-85. Further, we note that respondent's priordiscipline by the Seventh Circuit, the Review Board, and this court involved a similar brand of behavior: as indicatedpreviously, this court disciplined respondent for failing to communicate with clients; failing to refund unearned fees;converting funds; and neglecting two criminal matters. Since 1984, respondent has been found to have neglected at leastseven matters entrusted to him, which amounts to a serious pattern of neglect. This conduct, combined with respondent'spractice of law in the face of suspension, displays an utter lack of regard for the disciplinary system and the rule of thiscourt, as well as a tenuous concern for the welfare of each of his clients.
Nonetheless, we find disbarment unwarranted under the circumstances of this case. See Yamaguchi, 118 Ill. 2d at 428-29(disbarment destroys professional life, character and livelihood and must be imposed sparingly). We have repeatedly statedthat where corrupt motives and moral turpitude are not clearly shown, the proper punishment is suspension rather thandisbarment. In re Chapman, 69 Ill. 2d 494 (1978); In re Veach, 1 Ill. 2d 264, 273-74 (1953); see also In re Hogan, 112 Ill.2d 20, 25 (1986). Further, we find it significant that the neglectful acts underlying respondent's prior discipline by thiscourt all transpired between the period of 1990 and 1993, the same time as the mishandling of Shabani's 1991 appeal.Despite a busy criminal practice, respondent has provided years of dedicated service to the community, to his church, and toa segment of the population that is often overlooked. He cooperated with the disciplinary process and expressed remorse. Inre Uhler, 126 Ill. 2d 532, 541 (1989).
However, as respondent's prior suspension amounted to only five months, we reject the three months' suspension suggestedby the Review Board here. His present sanction should be sufficiently meaningful to "impress upon [him] the shortcomingsin the manner he has conducted his practice, and to allow him to take additional steps to insure that such events will notoccur again." In re Levin, 101 Ill. 2d 535, 542 (1984). For the reasons stated, respondent is suspended from the practice oflaw for a period of two years.
Respondent suspended.
JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that a two-year suspension is the appropriate sanction in this case. In my view,the respondent should be disbarred.
Regarding the misconduct involved in this proceeding, the record reveals that the respondent, during a prior suspensionimposed by this court, met with clients, accepted money from them, and offered them legal advice. Separately, therespondent made a false statement on a petition seeking admission pro hac vice in a criminal matter before a federal court inAlaska, later neglected the defendant's appeal in that case, and refused to return the defendant's fee.
The respondent's history of misconduct includes the suspension previously imposed by this court, which arose from therespondent's neglect of two clients' claims, his failure to promptly refund client fees, and his conversion of client funds. Inaddition, the United States Court of Appeals for the Seventh Circuit suspended the respondent from practicing before thatcourt for his neglect of criminal appeals. The respondent also received a reprimand from the Review Board based on thefederal court suspension and his neglect of another criminal case.
The respondent's record of misconduct in this case and in prior matters warrants a more severe sanction than the two-yearsuspension imposed by the majority. Because of the respondent's history of sanctions and misconduct, I believe thatdisbarment is appropriate here.
JUSTICE HEIPLE joins in this dissent.
JUSTICE HARRISON, also dissenting:
Mr. Howard's prior conduct has shown what a suspension will mean to him. Nothing. The last time we told him to stoppracticing law he did it anyway. He was unable to comply with our mandate for even five months. In direct contravention ofour orders, he met with clients in his office and in jail, took money from them and dispensed legal advice.
We had hoped that a suspension would teach Mr. Howard that he should promptly return unearned fees. It did not. We hadhoped that a suspension would impress upon him the importance of not neglecting criminal matters. It did not. Mr. Howardhas persisted in the very sorts of behavior that resulted in his discipline before. How, then, can we have any expectation thathe will comport himself properly now?
Although I am mindful of the positive aspects of Mr. Howard's contributions to the profession, it is apparent to me thatanother suspension will do no good. Mr. Howard is what he is, and he has made very clear through his actions that he is notreceptive to our efforts to help him reform. For the foregoing reasons, I would accept the Administrator's recommendationand vote to have Mr. Howard disbarred.
JUSTICE HEIPLE joins in this dissent.
1. 1Unless otherwise indicated, all further references to "Rules" refer to the Rules of Professional Conduct (134 Ill.2d R. 1.1 et seq.).
2. 2Rule 764(b) requires a disciplined attorney to cease to maintain a presence in his law office and "cause theremoval of any indicia of the disciplined attorney as lawyer, counsellor at law, legal assistant, legal clerk, or similar title."134 Ill. 2d R. 764(b). By its express language, however, the rule applies to attorneys suspended more than six months'duration.