JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 25, 1982.
In these consolidated disciplinary proceedings the Review Board of the Attorney Registration and Disciplinary Commission has recommended that respondent, Arthur H. Grant, be suspended from the practice of law for a period of three years and until further order of the court. The matter is before us on respondent's exceptions to that recommendation.
Separate complaints were filed by the Administrator and heard by separate panels. The first complaint, filed on December 19, 1978, charged respondent in separate counts with the commingling and wrongful conversion of client funds belonging to Edward A. Washington and Leroy Brawner and a failure to promptly pay to them monies to which they were entitled, all in violation of Canon 9 DR 9-102(B)(4) and Canon 1 DR 1-102(A)(4) of the Illinois Code of Professional Responsibility as approved and adopted by the Illinois State Bar Association (1977). (See 84 Ill.2d Rules 9-102(c)(4), 1-102(a)(4).) A subsequent amendment added a count containing similar allegations as to funds belonging to Leroy Jackson. The second complaint, filed in March 1980, charged conversion of the funds of Herbert Brock, Annie Bright and Arvilla Donald.
Respondent was admitted to practice in Illinois in 1954. The complaints arise from his handling of money received as settlement of four separate cases during 1977-78. Respondent maintained several bank accounts in different banks during this period. Some of the accounts were designated trust accounts; however, he used all of them for personal and business purposes as well as for clients' funds. Bank statements indicate that several of these accounts, among them those in which complainants' funds were placed, were overdrawn on several occasions.
In June 1977, respondent received a check in settlement of Edward Washington's personal injury claim and deposited it in a "trust account." In September, respondent issued a check for $980.67 to his client, which represented his share. That check was returned due to insufficient funds. Later that month respondent issued a replacement check drawn upon a different bank which was honored upon presentation. The "trust account," which was also used by respondent for his personal and business expenses, had been overdrawn several times between the end of July and the end of September.
In September 1977 respondent received a check in settlement of a personal injury claim he had filed on behalf of Leroy Brawner. He had his client endorse the draft on September 22 and told him he would receive his money in about two weeks. The client testified that in mid-November he made several calls and one trip to respondent's office but never was able to talk to or see respondent. On December 1, respondent cashed the check. Mr. Brawner testified that he talked to respondent in December about the check and was told that the check had not cleared. Respondent denies that this conversation occurred. On January 9, 1978, the client filed a disciplinary complaint. Respondent's secretary testified that in January and February she made several unsuccessful attempts to contact Mr. Brawner, and that on March 7 the client's money was paid in cash at respondent's office from money taken from an envelope in the client's file. Respondent testified that for a time that file could not be found but the cash had been in it since December. He also testified that the client had expressed a preference for being paid in cash.
Around November 5, 1978, respondent received a check in settlement of a claim filed on behalf of Leroy Jackson. Mr. Jackson endorsed the draft and respondent deposited it in a "trust account." This account was also used by respondent for business and personal expenses as well as to cover overdrafts from another account. Because of his inability to obtain his money from respondent, Mr. Jackson retained another attorney to represent him in his collection efforts and to pursue another matter for which respondent had previously been engaged. Respondent claimed that his client owed him for services on the other case and that negotiations broke down when the client's new attorney refused to accept the check less those fees. The client filed a complaint with the Commission in December 1978, and, on advice of counsel, respondent sent the settlement funds in the amount of $4,600 to Mr. Jackson the following June, withholding only "out-of-pocket expenses and fees" in connection with the settled claim. The balance of the account in which these funds had been held had on several occasions between November 1977 and June 1979 fallen below the amount owed Mr. Jackson.
In April 1977, respondent received checks in settlement of accident claims filed on behalf of Annie Bright, Arvilla Donald, and Herbert Brock. These checks were endorsed by respondent through a power of attorney and cashed by him on July 10. In April 1978, Herbert Brock learned from the insurance company that the case had been settled and called respondent about the money. Respondent issued him a check for $783.28, which was returned because of insufficient funds. A replacement check was issued immediately and honored. In December, respondent was contacted by Mrs. Walton, a Chicago relative of out-of-State clients Annie Bright and Arvilla Donald. Mrs. Walton complained that the clients had not been paid, and was told by respondent that he would mail them a check. Subsequently Mrs. Walton complained to the Chicago Bar Association, a representative of which wrote to respondent but received no response, and the matter was referred to the Commission. After the complaint was filed, respondent paid the clients, through Mrs. Walton, their shares of the settlement, $101 each. Respondent testified, and supported by affidavit filed after the hearing, that a former secretary had been given cash to purchase money orders for these clients but that she failed to do so and instead converted the money to her own use and hid the files.
Six attorneys, including past and present presidents of the Cook County Bar Association, testified as to respondent's long involvement in community activities and pro bono work for indigents. That testimony also established that respondent had received from the Cook County Bar Association its Westbrook award, which was one of four awards given annually to its outstanding members.
The panel which heard the complaint concerning the transactions with Washington, Brawner, and Jackson found that respondent had improperly commingled funds and, with respect to Washington and Jackson, had committed a "technical conversion" when the balance of the trust accounts fell below the amount owed these clients. The panel found "no evidence of dishonest motive" and noted that "respondent's difficulties [arose] from extremely sloppy bookkeeping practices and a failure to properly communicate with clients * * *." The panel noted the testimony of the character witnesses earlier referred to and recommended respondent's censure.
The panel hearing the complaint concerning Bright, Donald and Brock did so some nine months after the first hearing. Respondent was served with the complaint on April 7, 1980, but failed to answer or in any way respond thereto prior to the hearing, although he had earlier responded to a letter of the Commission in August 1979, by enclosing a letter from Mrs. Walton, dated August 16, 1979, stating that she had received payment from respondent and requesting that the complaint be dismissed. Respondent appeared at the hearing without counsel and requested a continuance so that he might be represented. Since it appeared that respondent had not contacted his attorney until just a few days before the hearing, the panel denied this motion and ruled that the allegations of the complaint be deemed admitted because of the failure to answer. Respondent testified in his own behalf but presented no character witnesses as he had in the former hearing. This panel found that respondent's acts constituted conversion of clients' funds in violation of DR 9-102(B)(4) of the Illinois Code of Professional Responsibility (Illinois State Bar Association 1977), which conduct was "unethical, unprofessional and tends to bring the courts> and the legal profession into disrepute." It was recommended that he be suspended for three years and until further order of the court.
The Review Board majority, emphasizing that far more occurred here than just the "technical commingling and a technical conversion of the client's funds" as the panel hearing the matters concerning Edward A. Washington et al. characterized the conduct in that proceeding, stated that it was "only with great reluctance" that it recommended the three years' suspension rather than the disbarrment which two members of the Board considered appropriate. It aptly described what occurred here:
"In each of the cases, funds of the client were not delivered to the client when they should have been or when they were requested. In each of the cases, the funds were, in fact, put to the attorney's own use so that when asked he was unable to comply with ...