JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 2, 1983.
The Administrator of the Attorney Registration and Disciplinary Commission filed a three-count complaint before the Commission charging respondent, Paul Schneider, with professional misconduct. Count I alleged that respondent represented clients with conflicting interests in a criminal case, and counseled certain clients to provide false information to the prosecuting attorney. Counts II and III charged him with neglect in handling legal matters entrusted to him. The Hearing Board found respondent guilty of all three counts and recommended that he be suspended from the practice of law for a period of three years, and until further order of the court. Both the Administrator and respondent filed exceptions with the Review Board, which adopted the findings of the Hearing Board but recommended that respondent be disbarred.
Two issues are raised on appeal: (1) Were the allegations contained in count I proved by clear and convincing evidence? (2) Is disbarrment an appropriate sanction under the circumstances of this case?
The facts relevant to count I are as follows. On October 31, 1978, John Harvey, Alan Sherman and David Berta (defendants) were arrested in Milwaukee, Wisconsin, and charged with forgery in connection with a "check-kiting" scheme. Subsequent to their arrest they telephoned Joseph Kordan, who was responsible for planning, and providing the necessary funds for, the operation. Kordan then contacted respondent and requested that he investigate the nature of the charges pending against the men and the amount of their bail. Respondent interviewed Harvey and Sherman in jail that same evening and later reported the substance of that conversation to Kordan.
The following day respondent contacted Robert Lerner, a lawyer practicing criminal law in Milwaukee. Pursuant to their conversation, Lerner agreed to represent the defendants. Between November 1 and November 7, 1978, respondent and Lerner had numerous telephone conversations concerning the pending charges and strategies for bond reduction. Respondent also had frequent discussions with Kordan, during which he became apprised of Kordan's participation in the scheme.
On November 7, respondent met with Lerner at Lerner's office in Wisconsin. The purpose of the meeting was to discuss the status of the case and to visit the defendants in jail. Respondent also paid Lerner a $1,000 retainer fee which he received from Kordan. The events which transpired during the meeting, and the subsequent discussions at the jail, are in dispute.
Lerner, who testified for the Administrator before the Hearing Board, stated he informed respondent the defendants were in substantial jeopardy and the evidence against them was overwhelming. However, the prosecuting attorney was willing to negotiate if they would reveal the identity of the "mastermind" behind the scheme. Respondent then inquired as to "what would happen" if the defendants informed the prosecuting attorney that Richard Bernowski, who was deceased, planned the operation. Lerner replied that he did not believe Bernowski was involved, and he would not counsel his clients to lie to the authorities. He further testified that respondent indicated he was aware Bernowski was not involved in the offense. Subsequent to their meeting, Lerner stated that he and respondent spoke with the defendants at the jail. Respondent "suggested" to each of them that they inform the prosecuting attorney Bernowski planned the scheme.
Respondent testified for the Administrator as an adverse witness. He stated that he did not apprise Lerner of Kordan's involvement in the offense because Kordan did not want his identity disclosed. He further stated that Kordan paid him $1,000 in legal fees, and that he considered himself the attorney for defendants and Kordan until sometime subsequent to November 7, 1978. Respondent admitted that he mentioned Bernowski's name to the defendants, but stated he believed that he actually was involved in the offense.
Harvey and Sherman also testified for the Administrator. Harvey stated that Kordan planned the operation, but that respondent suggested they say Bernowski was responsible so as to "take the heat off." Harvey also indicated that respondent was aware of the operation prior to the defendants' arrests. According to the witness, he contacted respondent several weeks prior to the commission of the offense. Harvey stated that he informed respondent he was reconsidering participating in the scheme. Respondent informed him that "everything was all right [and] to go ahead" with the operation. During cross-examination, Harvey indicated that Kordan and Bernowski participated in a similar scheme in the past, and that Bernowski may have been involved in the current operation. He further stated that he considered respondent as his attorney.
Sherman's testimony essentially corroborated Harvey's. On cross-examination, he stated that he has been convicted of six criminal offenses.
Respondent testified on his own behalf. He related that his law practice was primarily limited to traffic court, and that he had not previously represented a defendant in a felony case. He further stated that he only represented the defendants in the instant case as an "investigative attorney." His sole obligations were to determine the nature of the charges and to retain counsel for the defendants.
Respondent also indicated that Kordan told him Bernowski was involved in the scheme. He testified he never suggested that the defendants lie to the authorities; rather, he merely informed them that ...