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In Re Browning

OPINION FILED NOVEMBER 30, 1961.

IN RE J. ROY BROWNING, ATTORNEY, RESPONDENT.


PROCEEDING to disbar.

PER CURIAM:

The Committee on Grievances and the Board of Managers of the Chicago Bar Association, as Commissioners of this court, have recommended the disbarrment of the respondent, J. Roy Browning, an attorney, on two charges of misconduct, and he has brought the record to this court for review.

Each of the charges relates to activities of Orville E. Hodge, formerly Auditor of Public Accounts, who embezzled substantial sums of money from the State of Illinois. Count I is concerned with a bill, or statement, for legal services rendered, which the respondent delivered to Hodge, as Auditor of Public Accounts, in June of 1956. The statement was in the amount of $15,000, and it purported to cover legal services rendered and expenses incurred during the period from June 1, 1954, to August 31, 1955. The complaint charged that the respondent had never performed the services or incurred the expenses described in the statement, and that "in fact, said statement was entirely fictitious and was prepared and presented to the State of Illinois at the request of Orville E. Hodge for the purpose of serving as an invoice or a statement for a fictitious voucher issued on or about September 12, 1955, by Orville E. Hodge, payable to Roy Browning in the sum of $15,000." The count concluded with the allegation that the respondent knew that he had not performed the services and that no money was owed to him, and "that he was conspiring with the said Orville E. Hodge to make evidence to further the perpetration of a fraud theretofore practiced upon the State of Illinois" by Hodge.

The respondent's answer put in issue the factual allegations of the complaint. It admitted that he had delivered the statement to Hodge, but alleged that he had performed the services and incurred the expenses described in the statement, and that he had not received payment for them. It also alleged that the respondent had no knowledge, except from newspaper reports, of the issuance of the voucher of September 12, 1955, payable to him in the sum of $15,000, on which his name was endorsed in typewriting, until a photostatic copy of the warrant was exhibited to him when he appeared before the Sangamon County grand jury in July of 1956.

After the complaint and answer were filed, the respondent was indicted by the grand jury of Cook County as accessory after the fact to the crime of embezzlement of $15,000 from the State of Illinois by Hodge. When this indictment was tried before a judge of the criminal court of Cook County, the defendant was found not guilty at the conclusion of the People's case.

Thereafter the respondent filed a motion before the Grievance Committee to dismiss count I of the complaint upon the ground that "the acquittal in the criminal case was conclusive upon the Commissioners and the matter could not be the subject of further inquiry by them." This motion was denied, and the respondent then filed an answer which reaffirmed his original answer and added as an affirmative defense that he had been tried on the merits and acquitted of the same offense in the criminal court of Cook County.

In support of the allegations of the complaint, Albert E. Jenner, Jr., and John S. Rendelman, both members of the bar of this court, were called as witnesses. Mr. Jenner had been appointed as a special assistant Attorney General to represent the Illinois Budgetary Commission in an investigation into Hodge's activities. Mr. Rendelman was also appointed as a special assistant Attorney General, to assist Mr. Jenner in the investigation.

These witnesses testified to conversations they had with the respondent in the fall of 1956. The respondent told them that at the request of Hodge, he prepared and submitted the attorney's fee statement to support the $15,000 warrant which Hodge told him he had issued in September, 1955, in respondent's name. The respondent also told them that at the time he issued the statement he had no money coming from the State of Illinois, had rendered no services for the fees set forth in the said statement, and that the statement was fictitious. The respondent said that in the latter part of June of 1956, he had received a telephone call from Hodge; that Hodge was distraught and said that he was in trouble; that he had issued a warrant dated September 12, 1955, in respondent's name and would appreciate it if respondent would prepare an attorney's fee statement to support the warrant; that respondent hesitated to prepare the requested fee statement because he had no money coming from the State, but because of his great friendship for Hodge, he decided to, and did, prepare the statement Hodge had asked for. Respondent also told them that Hodge came to Chicago and met respondent and told respondent that in a moment of stress he had issued four fraudulent State warrants, one of which, dated September 12, 1955, was payable to the respondent in the amount of $15,000, and that he needed to have supporting statements from the payees of these warrants; that after Hodge had cried and "carried on" at great length and said that he would reimburse respondent for the $15,000, and after Hodge had said that he did not think that respondent had received as much compensation as was warranted for the many favors and services he had rendered to Hodge, respondent reluctantly agreed to prepare the statement, and delivered it to Hodge.

This testimony was undisputed. The respondent put in evidence the record of his acquittal in the criminal court, and offered the testimony of numerous character witnesses. But he did not testify, and he offered no evidence in support of the denials in his answer. His defense to count I rests on legal, rather than factual grounds. It "is that he was acquitted in the Criminal Court of the same offense as charged in the complaint, and that this fact is a complete bar to the charges. (People v. John, 212 Ill. 615; In re Pontarelli, 393 Ill. 310; In re Patlak, 368 Ill. 547.)" This contention requires an analysis of the circumstances under which the respondent was acquitted, and of the John case upon which the contention is based.

On the defendant's trial upon the indictment which charged him as accessory after the fact to the crime of embezzlement of $15,000 by Hodge, the trial judge refused to admit in evidence a certified copy of the record of Hodge's conviction, and sustained Hodge's refusal to testify upon the ground of self-incrimination. He then entered a finding of not guilty at the close of the State's case, on the ground that the State had failed to prove the commission of a felony by Hodge. The record in the criminal case makes it entirely clear that the finding of not guilty was based upon a failure to establish the principal crime, and not at all upon an evaluation of the respondent's conduct. That potential issue was not reached and was not decided.

People ex rel. Deneen v. John, 212 Ill. 615, upon which the respondent's defense to count I rests, arose on an information for disbarrment which charged John, an attorney, with the fraudulent conversion of money entrusted to him by his client. He had previously been found not guilty when he was tried upon an indictment that charged him with embezzlement of the same sum from the same client. In its opinion this court said: "We are of the opinion that the judgment of the criminal court of Cook county acquitting the respondent of the charge of having embezzled the funds collected by him as an attorney at law for said Elise Wasserman should be held to be a bar to this proceeding. In People v. Comstock, 176 Ill. 192, leave was sought to file an information in this court for the disbarrment of Comstock on the ground that he had induced a witness, by the payment of money, to swear fasely in a suit before that time pending in the circuit court of Fulton county. It appeared from the information that the respondent had been indicted by the grand jury of said county for subornation of perjury for inducing said witness to swear falsely and that said indictment was then pending in the circuit court of Fulton county for trial, and it was held, the respondent being under indictment for said offense, the proper place to investigate the question of his guilt was in the court where said indictment was pending, and not in this court, and the information was not permitted to be filed. We think the logical conclusion to be drawn from the decision in that case is, that a judgment of conviction or acquittal upon the merits upon a trial on an indictment will ordinarily be treated by this court as conclusive of the guilt or innocence of an attorney at law upon a subsequent trial upon information for disbarrment for the same offense. The foregoing seems to be the rule in all the courts of this country, unless special reasons, such as lapse of time, proof of reformation or other facts are shown, which, in the view of the court, should relieve the attorney from the force of a judgment of conviction."

It is clear that the prosecution of the present disciplinary case against the respondent is not barred by anything that was held or said in the John case. The qualified statement in that case as to the treatment that will "ordinarily" be accorded to a prior acquittal was made with reference to an acquittal after a trial upon the merits. The criminal charge in that case was based solely upon the conduct of the attorney, and the acquittal was a direct determination of the character of that conduct. The criminal trial relied upon in the present case never reached the state of a determination on the merits with respect to the respondent's conduct. Such a determination was precluded by the ruling of the trial judge that Hodge's guilt of the crime of embezzlement, to which he had pleaded guilty in another court, was not properly established. The correctness of that ruling is not before us, and we express no opinion concerning it. For present purposes, it is sufficient that the finding of not guilty in the criminal case against the respondent is not the kind of acquittal upon the merits which, in the language of the John case, will ordinarily be treated as conclusive.

The Commissioners properly found the respondent guilty upon the charge contained in count I of the complaint.

Even though the present proceeding is not controlled by the John case, the amicus curiae nevertheless asks us to overrule that case, insofar as it bears upon the relation between an acquittal on the merits in a criminal case and a subsequent disciplinary proceeding based upon the same conduct. He points out that the single decision cited in the John case does not support the conclusion reached, that the conclusion reached was not in accord with the ...


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