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In Re Teichner

OPINION FILED JANUARY 12, 1979.

IN RE MARSHALL I. TEICHNER, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 30, 1979.

The Administrator of the Attorney Registration and Disciplinary Commission filed a 14-count amended complaint against the respondent, Marshall I. Teichner, a Chicago attorney. The case was assigned to the Hearing Board panel for Springfield, which dismissed counts IV, VIII and XIII, found against the respondent regarding part or all of each of the remaining counts, and recommended that the respondent be suspended from the practice of law for a period of five years and until further order of this court. The Review Board affirmed the Hearing Board's dismissal of counts IV, VIII and XIII, and adopted the Hearing Board's findings as to the remaining counts, but recommended that the sanction be suspension for three years and until further order of this court. The matter comes before us on respondent's exceptions to the report of the Review Board; we also have allowed oral argument and the filing of additional briefs.

The Administrator has not specifically excepted in this court to the dismissal of counts IV, VIII and XIII, and, accordingly, we need not consider them further. Those counts which survived the scrutiny of the hearing and review boards generally involve the respondent's allegedly improper solicitation of employment in the wake of two railroad disasters, a derailment and explosion in Laurel, Mississippi, on January 25, 1969 (see Alabama Great Southern R.R. Co. v. Allied Chemical Corp. (5th Cir. 1974), 501 F.2d 94, 96), and an explosion in Decatur on July 19, 1974 (see People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill.2d 249, 252).

Because respondent's conduct in the Laurel, Mississippi, incident occurred prior to the creation of the Attorney Registration and Disciplinary Commission, the Chicago Bar Association conducted the original inquiry into this matter under our former Rule 751(a) (43 Ill.2d R. 751(a)), but apparently made no formal recommendation to this court in connection therewith. The Administrator apparently became aware of the Laurel incident only after filing his original complaint in this cause. Subsequently, the Administrator filed an amended complaint, of which count XIV contains the allegations regarding the Mississippi incident. Respondent objected to the inclusion of count XIV on the grounds that the delay between the original occurrence and inquiry and these proceedings was fundamentally unfair and therefore denied him due process of law. Both the Hearing Board and the Review Board were unpersuaded by this argument and so are we.

There is no statute of limitations governing our disciplinary proceedings. To constitute a bar to the maintenance of such proceedings, the delay must demonstrably have prejudiced the respondent's ability to present a substantial defense to the allegations. The mere passage of time is not enough. (See In re Bossov (1975), 60 Ill.2d 439, 447.) We find that the respondent has failed to demonstrate the necessary prejudice in this case. He had adequate opportunity to confront and cross-examine those witnesses who testified against him, and he was not demonstrably hampered in obtaining and presenting evidence necessary to his defense.

The Laurel incident involved the derailment and explosion of a train operated by a subsidiary of the Southern Railway System. On January 25, 1969, at approximately 4:20 a.m., two jumbo tank cars, each containing approximately 32,000 gallons of liquid propane, derailed and exploded in Laurel. (See Alabama Great Southern R.R. Co. v. Allied Chemical Corp. (5th Cir. 1974), 501 F.2d 94, 96, aff'd on rehearing en banc (1975), 509 F.2d 539.) Among the killed and injured were many members of Laurel's black community. The Rev. Allen Johnson, pastor of the St. Paul United Methodist Church of Laurel and a leader in that community, established a comprehensive program of relief for the injured persons and their families. At about the same time, agents of the Southern Railway System began appearing in Laurel and negotiating settlement agreements with the injured. Rev. Johnson believed these settlement agreements to be inadequate and sought to obtain legal counsel for the injured and their families. Through his cousin in Chicago, Rev. Johnson contacted the respondent and asked him to come to Laurel. Rev. Johnson also sought assistance from lawyers all over the State of Mississippi, because it was his experience that local counsel in Laurel would not be satisfactory for the task at hand. At a meeting in Rev. Johnson's church which respondent attended but did not address, several attorneys advised the persons in the audience of their legal rights in general terms. After the meeting, Rev. Johnson assigned some of his aides to accompany the respondent in visiting injured persons and their families.

Counsel for the railroad lost little time in responding to this counterattack upon the railroad's settlement practices. The railroad's Chicago attorney wrote the following letter to the president of the Chicago Bar Association:

"Dear Joe:

We represent the Southern Railway System. We are informed that in mid-January, 1969, the Southern had a serious derailment at Laurel, Mississippi, that destroyed some 35 houses, injured about 40 people and caused one death. To provide prompt relief for those harmed, many of whom were poor, the Southern promptly sent a large number of claim agents who worked around the clock with a board to make immediate settlements. A few days after the accident, Marshall I. Teichner, an attorney of 100 N. LaSalle Street, Chicago, Illinois, appeared in Laurel and went driving around, passing out business cards and seeking clients.

This information is passed along to you for such investigation and possible disciplinary action as may seem appropriate. If further information is desired from the Southern, we will be glad to supply it.

With warmest regards."

Respondent claims that the railroad's involvement in the instigation of the charges relating to the Laurel, Mississippi, incident fatally taints those charges and requires their dismissal. We disagree. Although the record reveals substantial involvement on the part of investigators employed by the railroad in the initial investigation of respondent's conduct in Laurel, we do not believe the record to be fatally tainted thereby. We also see no reason, on this record, to impugn the good faith of our attorney registration and disciplinary system in its investigation of this matter once it obtained custody of the file from the Chicago Bar Association.

Although the Administrator charged respondent with several instances of misconduct in connection with the Mississippi incident, the hearing and review boards found that the Administrator had proved his case only with regard to two of the incidents, one involving Sears Ward, and another involving Dorothy Bunch Brown. Since the Administrator has not specifically excepted to the hearing and review board's findings regarding the other incidents, we need not consider them further.

With regard to the allegations involving Ward, the hearing and review boards found as follows:

"Respondent, without invitation or request by Sears Ward, called upon Sears Ward in Laurel, Mississippi, at his place of business, identified himself as a lawyer and requested Mr. Ward's permission to talk with Ward's parents concerning the injuries they had sustained as a result of the railroad disaster and offered to advance money to Mr. Ward's parents if they needed it. Respondent on a later occasion came to the store where Ward worked and inquired of Ward if he had thought further about the proposition respondent had made to him concerning his representation of his parents.

The actions and conduct of respondent in Laurel, Mississippi, with respect to the foregoing constitute the improper solicitation of a client and tend to bring the legal profession into disrepute."

The findings of the Hearing Board regarding disputed questions of fact, when affirmed or adopted by the Review Board, are entitled to approximately "the same weight as the findings of any trier of fact in our judicial system." (In re Smith (1976), 63 Ill.2d 250, 255. Accord, e.g., In re Bossov (1975), 60 Ill.2d 439, 441 (weight accorded findings of Commissioners under prior rule).) However, the nature of this court's role in disciplinary proceedings (see, e.g., In re Sherman (1975), 60 Ill.2d 590, 593), as well as the complexity and subtlety of the distinctions between permissible and impermissible forms of solicitation (compare, e.g., People ex rel. Chicago Bar Association v. Edelson (1924), 313 Ill. 601, and In re Moore (1956), 8 Ill.2d 373, with In re Damisch (1967), 38 Ill.2d 195, and In re Hallett (1974), 58 Ill.2d 239) compel us to look further into the record to understand more precisely the nature of the respondent's conduct.

The record indicates that the respondent, accompanied by Wallace Dillon, a teacher at a local junior high school and aide to Rev. Johnson, visited Ward at a store he operated in Laurel. Although Ward was not a member of Rev. Johnson's congregation, he knew both Rev. Johnson and Dillon, was aware of Rev. Johnson's relief efforts, and agreed to talk with the respondent.

Ward's parents had been injured in the derailment and the respondent asked Ward's permission to speak with them in the hospital where they were being treated, and to offer them his services. There is no evidence that respondent asked Ward to request that his parents retain the respondent, although there is some evidence that either the respondent or Dillon offered to advance money to Ward's parents for their medical needs. Respondent also inquired as to whether the Wards were receiving proper medical attention. Ward nonetheless declined to give respondent permission to visit Ward's parents in the hospital. Respondent returned to Ward's store on a subsequent occasion, ostensibly to use a public telephone, at which time respondent again asked permission to visit Ward's parents to discuss his representation of them and Ward again refused.

Respondent denies that the foregoing conduct constituted the "improper solicitation of a client" and, alternatively, argues that his conduct was constitutionally protected.

The record clearly and convincingly demonstrates that respondent solicited employment by the elder Wards. That respondent never displayed a contract nor specifically requested Ward to recommend respondent to Ward's parents does not preclude our finding that, in context, the only reasonable conclusion that can be drawn from respondent's words and conduct is that he was seeking employment by the Wards. "Circumstantial evidence is legal evidence and neither the commissioners nor this court are required to be naive or impractical in appraising an attorney's conduct." (In re Krasner (1965), 32 Ill.2d 121, 127.) Respondent's in-person communication with the elder Wards' son, whom respondent reasonably could expect to play an important role in his injured, hospitalized parents' decision, is, in this context, indistinguishable from communication directly with Ward's parents themselves. The contents of that communication indicated respondent's desire to be employed by the Wards and potential benefits which they might derive from that relationship, such as a loan to pay for certain of their medical expenses. Thus we find that the Administrator has, prima facie, met his burden of proof.

However, we also agree with the respondent that his conduct was constitutionally protected. Several decisions of the United States Supreme Court have established that, to protect the right of individuals to associate for the advancement of beliefs, ideas (NAACP v. Button (1963), 371 U.S. 415, 9 L.Ed.2d 405, 83 S.Ct. 328) and individual economic interests (Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar Association (1964), 377 U.S. 1, 12 L.Ed.2d 89, 84 S.Ct. 1113), the fourteenth amendment to the United States Constitution limits the power of the States to prohibit certain types of communications between attorneys and their potential clients. In addition, to protect the free flow of information regarding the availability and cost of legal services to potential clients, the court has sharply curtailed the power of the States to regulate published advertising by attorneys. (Bates v. State Bar (1977), 433 U.S. 350, 53 L.Ed.2d 810, 97 S.Ct. 2691.) Finally, only recently has the court attempted to come to grips with the problem expressly reserved in Bates, the permissible scope of State regulation of in-person solicitation by attorneys. See In re Primus (1978), 436 U.S. 412, 56 L.Ed.2d 417, 98 S.Ct. 1893; Ohralik v. Ohio State Bar Assn. (1978), 436 U.S. 447, 56 L.Ed.2d 444, 98 S.Ct. 1912.

In Ohralik, the respondent attorney, Albert Ohralik, was picking up his mail at the local post office, when he learned from the postmaster's brother that Carol McClintock, with whom he was casually acquainted, had been injured. He called her parents, who said she was in the hospital. When he suggested that he might visit her there, they assented but asked that he talk with them first. When Ohralik called upon the McClintocks they told him that she was driving the family car when struck by an uninsured motorist, injuring both her and her passenger. Ohralik assured the McClintocks that the Ohio guest statute protected ...


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