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In Re Berkley

OPINION FILED JUNE 9, 1983.

IN RE IRWIN MARTIN BERKLEY, PETITIONER.


Disciplinary proceeding.

JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

The petitioner, Irwin Martin Berkley, was disbarred on consent (73 Ill.2d R. 762) on September 26, 1973, shortly after his conviction in the Federal court of suborning perjury and his plea of guilty to charges of mail fraud and conspiracy to commit mail fraud. He filed a petition for reinstatement on September 22, 1980, pursuant to our Rule 767 (73 Ill.2d R. 767). Following an evidentiary hearing, the Hearing Board of the Attorney Registration and Disciplinary Commission recommended that the petition be denied "on the sole ground that there has been no attempt at restitution." Petitioner subsequently made separate contributions of $5,000 each to the client reimbursement funds of the Illinois State Bar Association and the Chicago Bar Association in lieu of direct restitution, and the Review Board of the Commission thereafter recommended that petitioner be reinstated. The Administrator has filed exceptions to the Review Board's report and recommendation.

Petitioner was admitted to the bar of Illinois in 1960. In 1961, after practicing law for a short period with two different law firms, he and two of his former classmates formed a law partnership in Chicago which was dissolved in 1965. Although continuing to share office space with his former partners, petitioner became a sole practitioner focusing almost exclusively upon personal injury work. In 1972, he was indicted for suborning perjury, mail fraud, and conspiracy to commit mail fraud in connection with his personal injury practice. Following a jury trial, petitioner was found guilty of suborning the perjury of three police officers who were to testify before the grand jury. He subsequently pleaded guilty to one count of mail fraud and one count of conspiracy in exchange for the government's agreement to dismiss the 10 remaining counts of mail fraud. He was sentenced to two concurrent four-year terms of imprisonment and fined $20,000. Petitioner's testimony in the disciplinary hearing established that during the 1967-71 period he "bought" cases from police officers and others, used inflated medical bills supplied by dishonest doctors to defraud insurance companies, and paid kickbacks to insurance adjusters. The chaser fees and kickbacks were sometimes absorbed by the clients.

Following petitioner's conviction and prior to his imprisonment he negotiated a sale of his law practice for the sum of $600,000, later reduced to $500,000, payable in installments over a period of several years.

While petitioner was incarcerated in the Federal correctional system, he became an acting rabbi, conducting religious services as well as group Bible discussions. In addition, he became a lecturer for the prison's "Positive Mental Attitude" program, a vice-president of the Jaycees and chairman of its Toys for Tots program; he also worked with other inmates to develop their reading skills and served as a dental assistant. He was released after serving 19 months.

Since his release from prison, petitioner has been a quite successful real estate developer and investor, and the record indicates that he is highly regarded by the business and banking community with which he frequently deals. He also resumed his participation in many of the charitable, religious and civic activities with which he had been associated prior to his convictions and became active in several other service and religious organizations. Among these, petitioner is an active worker in the Safer Foundation, participating in vocational and rehabilitation programs for former inmates as well as serving as a member of the planning and development committee. He is a member of the board of directors of the B'nai Jacob Synagogue, an active member of the Variety Club and the Covenant Club, acting as chairman of the former's Theater Collection Drive for La Rabida Children's Hospital, and serving on various committees of the Covenant Club. He has sponsored and acted as moderator for a series of cultural programs and seminars for the Northside Synagogues (a consortium of synagogues), and contributed a compendium of religious books to the library of the Loop Synagogue. He has made numerous financial and other contributions to the Abe Saperstein Foundation and to the Arie Crown Hebrew Day School, where he is also a board member. In addition, he has participated in a number of fund-raising activities and has worked for and contributed to the Weitzmann Institute in Israel and the Spertus College of Judaica. Financial contributions to various colleges and synagogues in memory of his mother have been made by him, including establishing a scholarship fund at Beth Israel Congregation.

In addition to his own testimony, eight witnesses testified before the hearing panel on petitioner's behalf, including a rabbi, an associate judge of the circuit court of Cook County, the chancellor of Spertus College, a current business associate of petitioner's, three attorneys, and a bank vice-president. The testimony of these witnesses need not be detailed here. It is sufficient to note that the witnesses believed that petitioner is a generous and compassionate person, remorseful about his past misconduct, completely rehabilitated, and that he conducts himself with the utmost honesty and integrity. They testified that, if readmitted to practice, his professional conduct would, in their opinion, evince the same qualities as his personal conduct now does.

The hearing panel, although characterizing petitioner's prior practice as a "dirty racket," found that he recognized the nature and seriousness of his misconduct, that his evidence of rehabilitation and good character was convincing, and that his current knowledge of the law was adequate. Apart from the failure to make restitution, the panel members considered his conduct since his disbarrment to have been above reproach and that, except for the "blind spot" which he appeared to have regarding restitution, petitioner had been candid and forthright in presenting evidence. The panel did not find persuasive petitioner's explanation that he could not make restitution because his files were no longer available and that, in any event, even if he could reconstruct those files it would be impossible to determine the amount owing to former clients or insurance companies given the nature of his fraudulent scheme and the fact that he did not consistently adhere to it.

Petitioner urges us to adopt the Review Board's report and recommendation that his $10,000 contribution to the bar associations' client funds is sufficient restitution in view of his inability to determine which clients to reimburse, and further asks that we consider his generous post-prison charitable efforts and contributions. The Administrator suggests that petitioner's failure to attempt restitution evidences a continuing character defect and that the $10,000 contribution is minuscule in comparison to the actual amount of petitioner's "ill-gotten" gain as well as the amount of money petitioner received as a result of the sale of his law practice. Thus, the Administrator concludes that petitioner has failed to demonstrate by clear and convincing evidence that he has been rehabilitated or is a sufficiently changed person to warrant reinstatement.

It is, of course, petitioner's burden to prove by clear and convincing evidence that he should be reinstated to practice law. (In re Silvern (1982), 92 Ill.2d 188, 193; In re Kuta (1981), 86 Ill.2d 154.) Our Rule 767 sets forth the following guidelines:

"The panel shall consider the following factors, and such other factors as the panel deems appropriate, in determining the petitioner's rehabilitation, present good character and current knowledge of the law:

(a) the nature of the misconduct for which the petitioner was disciplined;

(b) the maturity and experience of the petitioner at the time ...


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