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In Re Ascher

OPINION FILED MAY 22, 1980.

IN RE WALTER A. ASCHER, PETITIONER.


Petition for admission to the bar.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 26, 1980.

The issue here is whether Walter A. Ascher is "of good moral character and general fitness to practice law" as required by our rules (73 Ill.2d R. 701(a)) for admission to the bar of Illinois. The Committee on Character and Fitness for the Second Judicial District (Committee) reported that it could not so certify (73 Ill.2d R. 708(c)). Ascher now petitions us to admit him to practice (73 Ill.2d R. 708(a)), asserting the Committee's action to be arbitrary and unwarranted.

Petitioner passed the examination conducted by the State Board of Law Examiners in February 1979. On April 16, petitioner, as required by the Board, filed its form entitled "Additional Questionnaire and Statement of Applicant" supplementing the original questionnaire filed in November 1977 containing his original responses to questions concerning character, fitness and personal history. In the additional questionnaire, petitioner was asked whether he had "ever been a party (either plaintiff or defendant) to or otherwise involved in any action or legal proceeding either civil or criminal or quasi-criminal, including any proceedings in a juvenile court?" He responded: "No change." The fact was, however, that on the preceding November 2, 1978, a civil suit, Alloy Piping, Inc. v. Ascher et al., had been filed in the circuit court of Du Page County, naming petitioner as a defendant. The allegations in that complaint, which was still pending, made serious charges of misconduct against him. It is largely the failure to disclose the existence of that lawsuit and the Committee's findings regarding the conduct of defendant upon which the suit was predicated which prompted the Committee's refusal to certify petitioner.

The plaintiff, Alloy Piping, Inc. (Alloy) alleged in count I of its complaint that petitioner occupied a fiduciary relationship to it since he had served as its tax accountant for three years and as its agent-broker for the purchase of real estate. Alloy also alleged that petitioner represented that he would act as Alloy's "agent-broker" in connection with the contemplated purchase of another tract of land, and that petitioner "controlled" this tract. Relying on those representations Alloy on April 18, 1978, signed a contract for the purchase of the property at a price of $120,000. The contract described the seller as "Bank of Lyons Trust No. 1737," and was signed by petitioner "as beneficiary of Bank of Lyons Trust No. 1737." Pursuant thereto, Alloy tendered to petitioner a check for $12,000 made payable to petitioner's real estate agency, as escrowee. It was additionally alleged that neither petitioner nor Trust No. 1737 held an interest in that real estate on April 18; that petitioner at that time knew that there existed a contract dated April 1 for the sale of the same land by another person, as beneficiary under Trust No. 1737, Bank of Lyons, for a price of $109,000; and that petitioner wilfully, maliciously and fraudulently withheld from Alloy his knowledge of the pre-existing contract.

It was further alleged that petitioner violated his fiduciary duties to Alloy by failing to disclose that he, after learning of Alloy's interest, arranged for the sale of this real estate by the actual owners, Robert and Dorothy Freston, to Winfried and Mildred Kaczmarek for $100,000 pursuant to an agreement between the Kaczmareks and petitioner to share the profit from the subsequent sale to Alloy at the higher price; and that petitioner received a real estate commission on the Freston-Kaczmarek sale. It was further alleged in reference to the Freston-Kaczmarek sale that petitioner knew a $75,000 mortgage was given to the Frestons by the Kaczmareks and recorded, but that the existence of this mortgage was fraudulently withheld from Alloy.

It was also alleged that petitioner tendered to Alloy a Chicago Title and Trust Company commitment for title insurance in the amount of $120,000 which gave no indication of the existence of a mortgage on the covered property. The complaint also charged that the original commitment for title insurance, which was in petitioner's possession, was in the amount of $100,000 and noted the existence of the $75,000 mortgage. It was additionally asserted that petitioner not only fraudulently withheld this material information from Alloy, but had also altered the copy of the title commitment policy tendered to Alloy by deleting the reference to the mortgage and changing the amount of the policy from $100,000 to $120,000. It was further alleged that at or prior to the time of closing, petitioner forged the signatures of Winfried and Mildred Kaczmarek to the affidavit of title, warranty deed and closing statement, and that the warranty deed prepared by petitioner made no mention of the mortgage. In addition the complaint alleged that petitioner had fraudulently deposited a cashier's check for $106,952.76, made payable to the Bank of Lyons Trust No. 1737 and representing the amount due the sellers at closing, in his own account in his own name at the Elmhurst National Bank. Also alleged was Alloy's repeated demand upon petitioner for the clear title which Alloy had learned it did not have. Temporary injunctive relief, actual and punitive damages and a declaration holding petitioner in contempt of court for the unauthorized practice of law were prayed.

Counts II and III of the complaint were directed toward Village Center Realty, Inc., and the Kaczmareks, and the entire complaint was verified. On December 22, an apparently unverified answer to the complaint was filed. Petitioner signed his attorney's name but with his own initials in parentheses. During oral argument counsel for petitioner submitted a motion, which we now allow, to supplement the record with a copy of a motion for summary judgment filed on behalf of petitioner and denied by the trial court.

Upon learning that this undisclosed suit was pending, and had been pending against petitioner at the time he completed the additional questionnaire, the Committee notified him and conducted a hearing during which some six witnesses, including petitioner, testified and numerous exhibits were admitted. It will be necessary to relate that evidence in some detail.

Following his 1962 graduation from high school, petitioner was employed by various companies for varying periods of time. He also attended several educational institutions on a part-time or evening basis, receiving an A.B. degree from Northeastern Illinois University in 1973. He commenced his law work on a part-time evening-class basis at John Marshall Law School in 1970. In 1975 he enrolled at Lewis University College of Law as a full-time student and graduated in January 1978. Since 1974 he has conducted an accounting business under the name of Ascher Accounting and has been a licensed real estate broker and agent doing business as Village Center Realty. He is also a licensed insurance agent and broker and an "enrolled agent" with the Internal Revenue Service. The "Certificate of Ownership of Business Firm" filed in the office of the county clerk of Du Page County under "An Act in relation to the use of an assumed name in the conduct or transaction of business in this State" (Ill. Rev. Stat. 1977, ch. 96, pars. 4 through 8a) lists Walter Ascher as "owner of" Addison Legal Services, and John A. Darianzo as "(Transacting Business)". The business card for Addison Legal Services lists Walter A. Ascher as "business manager." "Addison Legal Services" was apparently adopted in November 1978 by Ascher and Darianzo as a business name and discontinued in May of 1979 when a new lawyer was informed by the Illinois State Bar Association that use of the name was improper.

During its existence Addison Legal Services shared with one of the two Village Center Realty offices and with Ascher Accounting approximately one-third of a building in Addison, owned by petitioner, the balance of which was rented to other small businesses. On the left front of that building above the windows in large letters appear the words

ACCOUNTING & TAX SERVICE VILLAGE CENTER REALTY LAW OFFICES

530-1020

In addition to the larger signs, there is a third sign, smaller and slightly below the other two, upon which appear the words "Cunningham and Wood, Attorneys at Law." There is a doorway between the large signs and a second doorway to the right of the realty sign. A diagram of the interior seems to indicate a partition separating the law office from the accounting and real estate offices with communicating doors between them. Apparently a single telephone number served all three. The Addison Legal Services stationery contained the name of John Darianzo as "of counsel." Cunningham and Wood are two attorneys admitted to practice in 1978. They apparently practiced in Aurora but were joining Addison Legal Services when Darianzo moved to Texas. Although their names appear on the outside of the building in a photograph taken at some undisclosed date, ...


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