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In Re Cohn





Rehearing denied January 23, 1957.

This is a disciplinary proceeding brought against Saul E. Cohn, an attorney at law, pursuant to Rule 59. (Ill. Rev. Stat. 1955, chap. 110, par. 101.59.) It was begun on October 30, 1954, with a complaint by the inquiry division of the committee on grievances of the Illinois State Bar Association, charging respondent with unprofessional conduct in soliciting personal injury cases. After considering evidence the board of governors as commissioners of this court made their report finding 24 instances of solicitation, 13 of which are not disputed by respondent. The commissioners recommend that respondent be suspended from practice for a period of five years. Respondent has filed exceptions to the report.

Respondent was admitted to the bar in 1933 and practices in East St. Louis, where he has resided all his life. In 1950 he employed one Albert Toler as investigator, at a salary of $75 per week. A few months after this employment began, Toler engaged upon a course of active solicitation of personal injury business for respondent. He would acquire knowledge of accidents through newspaper reports or other sources, promptly call upon the injured person, or the family in cases of death, going either to the hospital or to the home, ascertain if counsel were desired, and suggest the name of respondent. Contracts of employment would be secured by Toler on forms carried for the purpose, whereupon respondent would immediately send a lien letter to the defendant involved. The record discloses a substantial number of such instances, wherein injured persons were approached by Toler and employment contracts obtained in this manner, but it would serve no useful purpose to relate them here. While respondent insists he engaged Toler only as an investigator and was at first unaware of his soliciting activities, it is admitted that he later learned of it and took no steps to discontinue the practice until 1953. In that year Toler's activities engaged the attention of an organization of young lawyers known as "The Younger Members of the East St. Louis Bar Association." This group caused an information to be filed against Toler charging him with unauthorized practice of law; and an injunction was secured restraining him from soliciting law business for himself or others. When respondent learned of this action by the lawyers' group he discharged Toler.

There is no material dispute concerning the evidence. Respondent does not deny that he engaged in improper solicitation through this agent for a substantial period of time. He testified that he understood the unethical nature of solicitation; that he made a mistake; and that he will not in the future engage in such practices. The record shows that he fully co-operated with counsel for the committee, furnishing exhibits and copies of documents from his files and entering into stipulations of fact which considerably shortened and facilitated these proceedings. Twenty-nine members of the bar, including five judges, appeared as character witnesses on respondent's behalf. They testified to his good reputation and his fairness and integrity in his dealings with courts and fellow lawyers. It appears from such testimony that respondent had been active in bar association work, that he is an able lawyer, that he always kept his word, and that he enjoys a good reputation for truth and honesty.

It is urged on his behalf that in view of his frankness, his reputation, and the fact that no clients have expressed dissatisfaction with his services or complained of overreaching, his one episode of transgression is not a true representation of his character and does not show him to be unfit to continue the practice of law; that suspension for five years would be equivalent to a destruction of his livelihood; and that since he has changed his attitude, acknowledged his error and given assurance that no repetition of the misconduct will occur, the interests of the profession would be adequately protected with a censure by this court. We are thus presented with the sole question of what discipline is warranted for undisputed solicitation, under the circumstances shown in this record.

The practice of solicitation, as exemplified in this case, is one of the most serious problems confronting the profession. It is condemned by the canons of ethics of every bar association, and yet some lawyers persistently engage in such improper conduct, bringing the entire profession into disrepute. The evils of so-called "ambulance chasing" are well known, and have been made the object of repeated criticism in our courts and elsewhere. (See Morris v. Pennsylvania Railroad Co. 10 Ill. App.2d 24.) The disreputable behavior of respondent in the case at bar cannot be attributed to mere carelessness or ignorance of ethical standards. By his own admission he knew the reprehensible nature of the practice, and yet deliberately continued it. Such misconduct deserves nothing but contempt in the eyes of judges, lawyers and the public generally. It cannot be condoned. Since respondent is unquestionably guilty of unprofessional behavior tending to bring the courts and the profession into disrepute, we hereby severely reprimand and censure him.

While the solicitation of law business is highly reprehensible and improper, it is not an offense which imports venality, fraudulent practices, or moral turpitude. (In re Veach, 1 Ill.2d 264, 273.) Like the various offenses under the criminal code, some of which are more serious than others and call for a higher grade of punishment, the various infractions of professional ethics afford differing indications of unfitness for the practice of law. (See In re Veach, 1 Ill.2d 264, 273.) A disbarrment proceeding is not a prosecution for crime. Its purpose is to ascertain whether the person concerning whom the proceedings are brought is unfit to remain an attorney. (In re Goldstein, 411 Ill. 360.) While a lawyer may properly employ an investigator to discover facts concerning a case in which he is retained, it has been held clearly unprofessional to permit him to carry signed contract forms which he procures to be signed by injured parties before conferring with the attorney. (In re Mitgang, 385 Ill. 311.) In that case we censured the attorney for engaging in such an impropriety, but in view of the evidence of good reputation and the absence of any fraud or overreaching of clients, we concluded the conduct did not warrant disbarrment or suspension.

We have recognized that disbarrment or suspension may destroy an attorney's livelihood (In re Donaghy, 402 Ill. 120,) and that each case of this character must be considered on its own merits. (In re Smith, 365 Ill. 11.) Respondent here had offered extensive evidence of his good reputation for truth and professional standing among his associates and judges before whom he practiced. He discontinued his misconduct prior to the initiation of these proceedings. He has given his solemn assurance that he will in the future observe the ethics of his profession, and his sincerity appears evident in the fact that he testified, openly confessed his error, and has maintained an attitude of co-operation with the committee in its investigation. He did not attempt to obstruct the proceedings, nor does he indulge in abuse and recrimination against those responsible for instituting them. In view of the circumstances present in this case, and respondent's evident reformation, we do not consider that his past transgression of professional propriety justifies his suspension as an attorney. His acts are by no means condoned, however. Because of them respondent is deserving of severe censure, and any resumption of such practices will result in his disbarrment.

Respondent censured.

Mr. JUSTICE SCHAEFER, dissenting:

Guilt is admitted in this case, and the only question is the discipline to be imposed. The committee on grievances of the Illinois State Bar Association recommended disbarrment. The Board of Governors of the Association recommended suspension for 5 years. Mr. Justice Davis and I feel that the censure that this court now imposes is inadequate.

What the opinion of the court euphemistically describes as "one episode of transgression" was actually a deliberate course of solicitation that lasted over three years. During that period respondent collected more than $41,000 in fees in cases that were solicited by the runner he hired. This profitable "episode" continued until the younger lawyers of the area sought an injunction to restrain his activities. That respondent did not "overreach" his clients, or defraud them, does not seem to us particularly relevant. He overreached the other members of the bar to a degree that forced upon them the disagreeable job of bringing suit to put a stop to his activities.

Censure misses the mark in a case like this one. Respondent deliberately and systematically solicited business to make money. He succeeded. If we assume that censure will keep him from resuming operations, there are others who might be quite willing to choose a certain and substantial present profit against the risk that if their activities are ...

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