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In Re Howard

OPINION FILED OCTOBER 5, 1977.

IN RE LEE MARSHALL HOWARD, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Pursuant to Supreme Court Rules (58 Ill.2d R. 751 et seq.), a disciplinary proceeding was brought against respondent, Lee Marshall Howard, for engaging in unprofessional and unethical conduct tending to defeat the administration of justice and to bring the courts> and the legal profession into disrepute.

A hearing panel (Panel) of the Attorney Registration and Disciplinary Commission found misconduct on the part of the respondent and recommended that the Administrator of the Commission and respondent agree to a reprimand of the latter pursuant to Commission Rule 9.4. The Administrator declined, and the majority of the Panel then recommended, "with reluctance," that the matter be dismissed. One member, in dissent, recommended that respondent be suspended from the practice of law for six months. The Review Board (Board) reversed the Panel's recommendation and unanimously recommended that respondent be disbarred.

The respondent was admitted to the practice of law in Illinois on April 28, 1960. In December of 1973, he was indicted in Cook County on three counts of bribery and, after trial, was acquitted of the criminal charges. A complaint, based on the same transaction, was filed by the Administrator on July 11, 1975. It alleged that, in the course of respondent's defense of a client, he had, on two separate occasions, given $50 to the arresting officer, Jerry Maculitis, and, on a third occasion, told Maculitis that he would "probably be spending some money with the State's Attorney" and would "take care of the judge." Other than respondent's character witnesses, only the respondent testified at the disciplinary proceeding before the Panel. Officer Maculitis was not called.

Respondent testified to the following account. At the time of the case which gave rise to the charges, his legal practice consisted largely of divorce and real estate matters. Although he handled very few traffic cases, he was prevailed upon to defend Charles Graber, a friend of a client, against a charge of driving while intoxicated. On June 27, 1973, the respondent appeared for Graber at the Elk Grove Village courthouse, where he had never previously practiced. He inquired of an assistant State's Attorney if he might see the arresting officer's report. He was told he would have to get it from the arresting officer, Maculitis. Respondent located Maculitis, identified himself as the attorney representing Graber, asked for and received the report. The report included the "breathalizer" test results and a document known as the "visual" report — an account of the arrestee's demeanor, appearance and responsiveness, based upon the officer's unaided observations. Respondent took several minutes to read it, and noted that it stated his client's attitude on the night of the arrest was "carefree and talkative." To his reading, his client's reported responses to the officer's questions were "extreme." The respondent testified that the officer expressed dislike for Graber, indicated that he "really buried my man on the visual," threatened "If you don't take care of me, I am going to bury this guy," and told respondent that he (the officer) required $50 which was the "going rate" for cases of that kind. To this, respondent assertedly responded:

"[I]f I give you Fifty Dollars will you testify in accordance with the visual as to the carefree and hilarious and talkative, joking manner that you have indicated on your visual?"

He explained, in his testimony before the Panel, that he wanted to be sure the officer gave such testimony because "the responsive answers on the visual were so extreme that [he] couldn't believe it." When respondent reached into his pocket, Maculitis asked that the two of them walk to the washroom, where respondent gave the officer $50.

Respondent further testified that on August 1, 1973, he sought a continuance at the Elk Grove Village courthouse. As he left, he was stopped by Maculitis, who asked his name and said something like, "You are the fellow who put $50 in my pocket." Respondent asserts that the officer asked how respondent wanted him to testify, to which respondent replied that he would have to testify in accordance with the visual report. The officer then asked for an additional $50, and respondent answered, "No problem." The respondent remarked, "I am probably going to have to spend some money with the State's Attorney," and stated that he had things "pretty well set with the judge." He asserts that these statements were made to get away from the officer because he (respondent) was late for a court date elsewhere. To explain his statement regarding the judge, the respondent indicated that he had known the judge assigned to the case during all of his professional life, and knew that "If I had a good case at all, I would get a favorable verdict. The evidence would satisfy him." He denied having improperly talked with the judge or the State's Attorney regarding the case.

On August 27, 1973, the Graber case came up for trial and, prior to being called, the respondent talked with Maculitis outside the courtroom. The officer asked if respondent had the $50, and respondent answered that he did not, that it was up to Graber as to whether or not he would be paid and Graber was not yet in the court. When Graber arrived, he agreed to pay the extra $50 and the respondent nodded his assent to the officer in the courtroom. Respondent testified as follows regarding the trial.

"Q. Would you tell us what questions you asked Mr. Maculitis?

A. I asked him, `When you talked to Mr. Graber, was he courteous at all times?' His answer was `Yes.'

Q. What was the next question?

A. `As a matter of fact, when you were discussing matters with Graber, you were joking and Mr. Graber was ...


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