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In Re Madsen

OPINION FILED OCTOBER 5, 1977.

IN RE HARRY B. MADSEN, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

The Review Board of the Attorney Registration and Disciplinary Commission recommended that respondent, Harry B. Madsen, who was licensed to practice in Illinois on November 21, 1960, be suspended from the practice of law for two years and until the further order of the court. The original complaint filed by the administrator of the attorney discipline system charged that respondent and two associates had mailed to approximately 2,090 of their clients a two-page communication entitled "Tips from your Lawyer for 1973" and a pamphlet published by the Illinois State Bar Association styled "Wills, Their Importance and Why You Should Have One," each copy of which bore the name of respondent's firm, its address and telephone number. It was charged that the communication contained "professionally self-laudatory statements calculated to attract lay clients," gave "unsolicited advice to laymen," "suggested the need of the respondents' legal services," and that it constituted "the solicitation of professional employment by advertising."

The Hearing Board allowed respondent's motion to sever and set the case for hearing. During a prehearing conference held at the offices of the attorney disciplinary system respondent made certain statements to his former associates. Following this occurrence the complaint was amended by adding count II, which charged that respondent threatened that if his two former associates testified in the proceeding he would submit evidence that their conduct had been unethical, that they were guilty, "on a civil basis," of contractual violations and of violations of the Criminal Code. After rather lengthy prehearing activity the matter was heard by a hearing panel which recommended that respondent be suspended from the practice of law for a period of three years. Respondent filed exceptions. The Review Board remanded to the Hearing Board with directions that further proceedings be held, and that it be assigned to a hearing panel other than that which had previously heard the matter. Following the filing with the Hearing Board of a number of motions and of actions in both the State and Federal courts>, the matter was heard by another panel of the Hearing Board. The Hearing Board concluded that although the conduct charged in count I was improper it did not merit the imposition of sanctions. It found that the charges contained in count II were proved by clear and convincing evidence and recommended that respondent be censured. Both respondent and the Administrator filed exceptions, and following oral argument and the filing of briefs the Review Board recommended that respondent be suspended from the practice of law for a period of two years and until the further order of the court.

The first document described in count I was entitled "Tips from your Lawyer for 1973." In the first paragraph it requested the addressee to advise respondent's firm if the address on the envelope was not correct "so that we can note your important files accordingly." The second paragraph advised that wills should be reviewed at least every two years and stated that the firm's records indicated that the last review of the client's will was with reference to a file opened on a stated date and bearing a designated number. The next paragraph stated that the firm engaged in "wide general practice," that in the preceding year it had processed 1,149 files in 12 areas of general practice. In succeeding paragraphs it warned of the pitfalls of out-of-State land investments, advised the client as to his rights in the event of arrest, contained a caveat as to purchasing property in Wisconsin, the pitfalls of franchises, advised further that there were means of avoiding probate, that certain benefits could be derived from incorporating a business, that the firm was available to aid in real estate transactions, and concluded with some general advice concerning stopping payment of checks, checking driver's licenses, and descent and distribution in the event that one died without a will. It offered the services of attorneys from the office to lecture "on a wide range of topics" to business, professional and social organizations, and stated that an established client of the office could feel free to call for brief legal advice for which he would not necessarily be billed.

The occurrence out of which count II arises took place at the offices of the disciplinary system. The Administrator had issued subpoenas for respondent's two former associates who had been charged jointly with him with the misconduct alleged in count I. Respondent caused subpoenas to issue to them returnable approximately one hour prior to the time when the hearing was to commence. He had requested by telephone that the Administrator and the Administrator's counsel be present. At that time, in the presence of respondent's secretary, his then counsel, the assistant administrator and the counsel for the Administrator, respondent advised his two former associates that he knew that they had been subpoenaed, that if they would decline to testify, although he could not be forced to testify, he would take the stand voluntarily and admit to the mailing of the documents described in count I and explain the manner in which the mailing list had been selected. He stated that if they declined the offer he would find it necessary to impeach them and that in the course of the impeachment, by cross-examination and introduction of documents, he would show that they had been guilty of violations of the Canons of Ethics, their contractual obligations to him, and the Criminal Code.

The hearing panel found that respondent was guilty of violating Disciplinary Rule 1-102(A)(1), which proscribes the violation of a disciplinary rule, in that he had violated Disciplinary Rule 7-105(A), which provides: "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." It pointed out that the violation "arose in an atmosphere of bitterness that was existing between the respondent and his two former employees" and that all of the acts of misconduct were done "openly in the presence of the assistant Administrator of the Disciplinary Commission and of the chief counsel for the Disciplinary Commission." It concluded that no sanctions should be imposed by reason of the mailings charged in count I but that the evidence showed that one of the purposes of the conduct charged in count II was to dissuade his former associates from testifying "and this is a circumstance which cannot be countenanced in the practice of law." It recommended that respondent be censured.

The Review Board concluded that the violations of the disciplinary rules charged in count I were sufficiently serious "to warrant censure if only this one Count were involved here." Concerning the allegations contained in count II it concluded that respondent's acts were highly prejudicial to the administration of justice and were designed to attempt to prevent witnesses from testifying. The Review Board concluded that respondent's conduct "was inimicable to the integrity of the legal profession and adversely reflected on his fitness to practice law." It modified the recommendation of the Hearing Board and unanimously recommended that respondent be suspended from the practice of law for two years and until the further order of the court.

Respondent contends that the finding that he had violated Rule 7-105(A) is not supported by clear and convincing evidence. We do not agree. Respondent's actions, under the circumstances shown, were clearly improper. The record shows, however, that respondent's statements were made in the presence of the assistant administrator of the disciplinary system and its general counsel and there was no surreptitious effort to influence or intimidate the witnesses. Although we do not approve or condone respondent's conduct, we conclude that it does not justify the imposition of the severe sanction recommended by the Review Board.

Concerning the alleged impropriety of the mailing of the "tip sheet" and the pamphlet, we have concluded that the letter contained information of value and did not, under the circumstances, constitute an improper effort to solicit business. We agree with the conclusion of the hearing panel that this count alone would not warrant severe discipline and add parenthetically that in view of the recent decision of the Supreme Court in Bates v. State Bar, 433 U.S. 350, 53 L.Ed.2d 810, 97 S.Ct. 2691, a question may indeed exist whether respondent's conduct would permit the imposition of sanctions.

Respondent contends that the hearing panel erred in admitting testimony of his former associates concerning the fact that, during the pendency of this proceeding, he had filed disciplinary charges against them. He argues that the "testimony severely damaged the respondent's defense and as a result was reversible error." We have examined the authorities cited, and the transcript, and conclude that the admission of the testimony was not error.

Respondent has devoted a portion of his brief to an attack on the attorney disciplinary system. He describes the system as "EXECUTIVE in that it prosecutes; JUDICIAL in that it tries cases; and LEGISLATIVE in that it selectively labels as violations fact situations not contemplated by any of the disciplinary rules." He charges too that the Commission now "operates as THE SUPREME COURT wielding powers the Court itself does not have by vigorously prosecuting anew a previously adjudicated matter without meeting the test of Neff v. George, 1936, 364 Ill. 306, by showing that serious detriment is thereby likely to arise prejudicial to the public interest." Respondent states that the current procedures of the Commission which prohibit an accused from investigating into other files and other proceedings before the Commission violate the equal protection clause of the United States Constitution. He asks that the court "find that the veil of secrecy surrounding all actions before the Attorney Registration and Disciplinary Commission is a violation of the equal protection clause."

The record shows that respondent filed numerous motions, many of which were repetitive, and all of which were considered and ruled upon by the hearing panel prior to commencement of the hearing. On respondent's motion, the hearing was made public, and we fail to see in what manner respondent was prejudiced by his inability to investigate files of other proceedings before the disciplinary commission.

During the pendency of these proceedings respondent, as plaintiff, filed an action in the United States District Court for the Northern District of Illinois against Carl H. Rolewick, the Administrator of the Attorney Registration and Disciplinary Commission, the Illinois State Bar Association and "John Doe." The complaint alleged that John Doe, described "as an otherwise unidentified individual," composed and forwarded an anonymous unsigned complaint concerning the mailing of the documents described. It alleged various violations of the Canons of Ethics on the part of defendant Rolewick and of the chief counsel for the disciplinary commission, that defendant Rolewick and his agents have "given comfort and encouragement to persons who are sworn witnesses against respondent" (his former associates) by failing to initiate any investigation or administrative procedures concerning their misconduct; that Rolewick prevented respondent from discovering certain information and particularly the motivations which led to the filing of the complaints against him; and that Rolewick's pattern of action has been "arbitrary, unfair and unreasonable." He alleged damages in the nature of expenses incurred and fees lost totaling approximately $20,000 and prayed judgment in the amount of $29,231.29 plus costs, punitive damages, and the issuance of a permanent injunction. Although the record does not show when and in what manner the dismissal was effected, the action was dismissed sometime during the pendency of this proceeding.

While this matter was pending before the Hearing Board, respondent, as attorney for "Robert L. Gottschalk, on behalf of himself and all other clients of Harry B. Madsen similarly situated," filed in the circuit court of Cook County a complaint against Carl H. Rolewick, Administrator of the Attorney Registration and Disciplinary Commission, and the Illinois State Bar Association, alleging many acts of misconduct and seeking to enjoin certain alleged improper actions. On defendants' motion, the cause was dismissed.

Although not made the subject of an additional charge, we find disturbing the timing of the filing of the actions in the United States District Court and the circuit court. Although respondent was entitled to vigorously defend against the disciplinary proceeding and raise any factual, legal or constitutional issues appropriate to the defense of the charges, we find his conduct similar to that of the respondent attorney in People ex rel. Kunce v. Hogan, 67 Ill.2d 55. Hogan, following conviction but before sentencing of his client, joined the trial judge as a party defendant in an action filed for the client. Hogan was found guilty of contempt, and in considering whether the specific intent in filing the action was sufficiently proved by the evidence, we held that a contemptuous state of mind may be inferred from the action taken and from the proof of the surrounding circumstances.

In the context of the proceedings which had preceded the filing of the suits, and considering the time when they were filed, it would appear that their purpose was in some manner to influence or intimidate the Administrator in the prosecution of this action. In view of the history of this case, which shows that the second charge arose out of conduct which occurred while the matter was pending on count I of the complaint, we can understand why the Administrator did not refer the question of the propriety of respondent's action in filing the two suits to another panel of the Inquiry Board.

From our review of the entire record we agree with the Hearing Board and the Review Board that the conduct of the respondent would serve to bring the legal profession into serious disrepute. The purpose of a disciplinary proceeding is to safeguard the public and maintain the integrity of the legal profession. (In re Smith, 63 Ill.2d 250.) Determination of the appropriate sanction to be imposed, however, is difficult, and as we said in In re Andros, 64 Ill.2d 419, 425-26, "While a degree of uniformity in the application of attorney discipline is desirable, each case must still be determined on its own merits."

The testimony and exhibits show that respondent is a lawyer of considerable ability who displays exceptional skills in the field of law office organization and management. The record shows, however, that despite his ability and experience he has failed to comprehend the impropriety of either the conduct charged in count II or the filing of the suits in the circuit and district courts>. On the contrary, the record, briefs and argument reflect an attitude of self-righteousness and rationalization of the actions taken. We conclude that only a brief period of suspension will demonstrate to respondent both that his conduct was improper and that the impropriety was serious, and he will, therefore, be suspended for a period of 30 days.

Respondent suspended.

MR. JUSTICE DOOLEY, dissenting:

We do not believe this case justifies discipline. In our opinion a grave injustice has been done respondent.

Here the conduct of the Attorney Registration and Disciplinary Commission is certainly no cause for applause. This court, however, has compounded the Commission's wrong. After discussing the two charges on which respondent was tried, the court has considered a matter, not the subject of a complaint, of which respondent had no notice, hearing or opportunity to present his side, in violation of our Rule 753(b) (65 Ill.2d R. 753(b)) that "[t]he complaint shall reasonably inform the attorney of the acts of misconduct he is alleged to have committed." This is ...


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