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In Re Rosenthal

OPINION FILED OCTOBER 6, 1978.

IN RE BENJAMIN JULIAN ROSENTHAL ET AL., ATTORNEYS, RESPONDENTS.


Disciplinary proceeding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 1, 1978.

This disciplinary proceeding comes before us on exceptions to the report and recommendation of the Review Board of the Attorney Registration and Disciplinary Commission, which approved the hearing panel's recommendation that respondents, Benjamin J. Rosenthal and Donald S. Carnow, be disbarred. That recommendation resulted from a complaint filed by the Administrator of the Commission against the respondents charging them with unethical conduct by their participation in and facilitation of an extortion scheme perpetrated against their client by a public official. The complaint charged that the respondents had concealed or knowingly failed to disclose the existence of criminal activity; counseled and knowingly participated in activities in furtherance of a crime; engaged in conduct that was prejudicial to the administration of justice and which adversely reflected on their fitness to practice law; and engaged in conduct which had the appearance of impropriety. Respondent Carnow was additionally charged with making false and misleading statements to Federal investigating agents.

In 1969, Rosenthal represented Joseph R. Pecord in matters concerning the purchase and use of a bank building, located in the city of Chicago and owned by the Federal Savings and Loan Insurance Corporation (FSLIC), which building Pecord intended to convert into a nursing home. Because the property was not zoned for such use, a zoning variance had to be obtained. The purchase contract, which had a closing date of July 1, 1969, was not contingent upon Pecord's success in securing rezoning. Failure to complete the contract would result in Pecord's forfeiture of his $50,000 down payment and other preparatory expenditures incurred by him.

In 1969, Carnow, a 26-year-old, full-time assistant Attorney General, was serving Rosenthal as a part-time associate on a space-for-service basis. In April of that year, Carnow, on Rosenthal's behalf, visited the office of the city council's Committee on Building and Zoning (Committee) and acquired information concerning procedures for seeking rezoning and obtaining an early hearing date. While at the Committee's office, Carnow met Stanley Zima, the secretary of the Committee. Carnow, who had been formerly acquainted with Zima, explained the nursing home project to him. Before Carnow left, Zima offered to assist him and Rosenthal in drafting their petition. Respondents accepted Zima's assistance. A petition was thereafter filed and a hearing date was set for June 20, 1969.

On or about June 17, 1969, Carnow received a call from Zima. Zima told Carnow that their petition was doomed because the ward committeeman and several neighborhood residents were opposed to the rezoning. Zima offered to help but told Carnow it would cost their client some money.

Carnow related this information to Rosenthal, and respondents arranged a meeting with Zima for the following day. At the meeting, Zima repeated to Rosenthal that which he had previously told Carnow. Zima informed the respondents of a zoning ordinance which was pending before the city council, and said that, if passed, the ordinance would permit respondents to bypass the Committee and file directly with the zoning board of appeals. Zima indicated that, to assure the ordinance's passage, he would have to undertake, on Pecord's behalf, "multiple obligations" of $20,000 to $30,000. Pecord could pay the money either as a political contribution or as attorney fees. Respondents rejected Zima's suggestion and indicated that they would proceed to the Committee's hearing on the merits of their case.

On June 20, 1969, several citizens and a ward committeeman appeared at the hearing and objected to Pecord's petition. The Committee deferred action on the petition and thereby deprived respondents of a final order from which they could appeal. (The petition was ultimately denied.)

Rosenthal met with Pecord after the hearing and informed him that he, Rosenthal, had been forewarned that objectors would be at the hearing. Rosenthal did not tell Pecord of the conversation with Zima, but did discuss the possibility of pursuing the zoning board of appeals route should the city council pass the pending ordinance. Rosenthal suggested to Pecord that they contact FSLIC officials for an extension.

Several days after the hearing, Zima contacted Carnow and told Carnow that the zoning ordinance had passed. Carnow related this information to Rosenthal, who expressed his enthusiasm at the prospects of obtaining the needed zoning variance on its merits. Rosenthal filed his zoning petition with the administrator of the zoning board of appeals and, at Pecord's request, dictated a letter to the FSLIC requesting an extension. A limited extension was obtained.

In a series of phone calls during the next few weeks, Zima informed Carnow, in substance, that Pecord would never get his rezoning unless Pecord accepted Zima's assistance. Zima stated that he would supply Pecord with "special zoning counsel" who would accept Pecord's payment as "attorney fees." Carnow related these conversations to Rosenthal, and Rosenthal, for the first time, informed Pecord of Zima's demand.

During the interim, the zoning board of appeals administrator recommended that Pecord's petition be denied.

Efforts toward obtaining further extensions on the contract with FSLIC failed. During the final week of July, Rosenthal and Pecord discussed Zima's offer. Rosenthal, according to his testimony at the disciplinary hearing, counseled Pecord against agreeing to Zima's demands and encouraged Pecord to seek further extensions to afford them time to seek review in the courts>, if necessary. Rosenthal advised Pecord that if Pecord agreed to Zima's proposal, he, Rosenthal, would have to withdraw from the case. (Thomas Gordon, an acquaintance of Pecord's, was present during this ...


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