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In Re Nadler

OPINION FILED JUNE 18, 1982.

IN RE FLOYD NORMAN NADLER, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

On September 5, 1979, the respondent, Floyd Norman Nadler, was convicted in the United States District Court for the Northern District of Illinois of submitting a false income tax statement. He was fined $5,000 and placed on probation for two years. The probationary period was later reduced to one year. Respondent's conviction was affirmed on appeal.

On January 30, 1980, this court, pursuant to Rule 761 (73 Ill.2d R. 761), entered an order suspending respondent until further order of the court. The current proceeding was brought by the Administrator of the Attorney Registration and Disciplinary Commission to determine whether respondent's crime warrants discipline and, if so, the extent of discipline. Since respondent acknowledges that discipline is warranted, the only issue before this court is the measure of discipline to be imposed.

The hearing panel recommended that respondent be suspended for two years. The Review Board recommended suspension for three years and until further order of this court. Both the Administrator and respondent excepted to the report and recommendation of the Review Board. Respondent argues that the sanction is unduly harsh; the Administrator contends it is too lenient and urges disbarrment.

Respondent was admitted to practice in Illinois on May 21, 1959. Until his suspension he practiced in the Chicago area, principally in the field of matrimonial law.

The conviction and the other charges against respondent arise from his acting as attorney in certain private adoptions between 1972 and 1975. The testimony before the hearing panel showed that, in 21 of the 23 private adoptions respondent handled during this period, illegal cash payments were made by the adopting couple to the physician who provided the baby. In each case, the cash was given to respondent to transmit to the physician. These cash payments were omitted from the schedule of expenses prepared by respondent that was required to be filed with the circuit court when an adoption was approved. The respondent caused the adopting couples to sign false affidavits stating that no fees other than those listed in the schedule had been paid in connection with the adoption, and submitted these affidavits to the circuit court.

Respondent testified that private adoptions were only a small part of his practice. His usual fee for handling an adoption was a flat $500, and such fees amounted to no more than 4% of his gross receipts annually.

The first adoption respondent handled was accomplished without illegal payment being made. Thereafter, respondent testified, the doctors demanded a cash premium, varying from $500 to $5,000, for providing a baby for adoption, in addition to the usual fee for medical services in delivering the child. There appear to have been several obstetricians who dealt with respondent on a regular basis. Typically, they would call respondent shortly before a patient who wished to give up her baby was to deliver and inform him that the infant would be available for adoption at a certain time. Respondent testified that he regularly, indeed continually, received calls from couples seeking to adopt children. When respondent learned that an infant was available for adoption, he would call an interested couple. The couples were informed that the physician would require a premium in cash in addition to the medical fee.

Respondent testified that he was aware of the Illinois statute prohibiting the payment and the acceptance of compensation other than usual medical or legal fees in connection with a private adoption. (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-21, now Ill. Rev. Stat. 1979, ch. 40, par. 1526.) Though he never explained the statute to the adopting couples, he testified that he believed they were aware that the cash payments were illegal.

The adopting couple typically would bring the cash in an envelope to respondent's office and hand it over to respondent, who later, when the adoption was completed, passed it on to the doctor. Respondent testified that he was merely a conduit for the illegal payments, and that, with one exception to be discussed, he transmitted all cash so received to the doctors.

Among the legal documents prepared by respondent for an adoption was an affidavit attesting that the expenses listed were the only ones paid in connection with the adoption. The affidavit was required by rule of the circuit court of Cook County. Respondent would instruct the adopting couple to sign the affidavit; he as their attorney would also sign it. The illegal payments to the physicians were never included in these affidavits. Respondent testified that the adopting couples were aware that the affidavits they signed were false. Respondent testified that he did not instruct the couples to lie to the court if they were questioned about the truth of the statements in the affidavit. He admitted, however, that on several occasions, in response to questions by the court, adopting couples did state falsely that the affidavits were complete and accurate. On these occasions respondent, though present, remained silent. This constituted a fraud upon the court.

In 1974, respondent handled an adoption for a couple named Kujak. Respondent testified that a tentative arrangement had been made for the Kujaks to adopt a baby which would be born in November. The obstetrician was demanding a $2,500 cash premium, and respondent had informed the Kujaks of this. In October, however, respondent learned from a different doctor of a newborn which was available for immediate adoption. He asked the Kujaks whether they would prefer to adopt this infant rather than the one originally discussed, and the Kujaks agreed that they would.

When the Kujaks arrived at respondent's office to execute the adoption papers, Mr. Kujak handed respondent an envelope containing $2,500. However, the obstetrician who delivered the baby ultimately adopted by the Kujaks had told respondent that no cash premium would be required. Nevertheless respondent accepted the envelope with the money. Though he later had contact with the Kujaks, respondent neither returned the money to them nor mentioned that it had not been needed to pay off the doctor. Respondent testified that he considered returning the Kujaks' money but ultimately kept it and used it.

Respondent's failure to report this $2,500 as income on his Federal tax return for 1974 led to his conviction in 1979 for tax evasion. During his Federal trial, respondent filed an amended return and paid the tax due and interest. ...


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