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In Re Rothenberg

OPINION FILED OCTOBER 3, 1985.

IN RE DAVID MARK ROTHENBERG, PETITIONER.


Disciplinary proceeding.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

The petitioner, David Mark Rothenberg, was disbarred on consent (87 Ill.2d R. 762) on January 31, 1977, shortly after his conviction in Federal court of conspiracy to transport stolen goods in interstate commerce and aiding and abetting the transportation of stolen goods in interstate commerce. Both convictions were affirmed by the United States court of appeals in October 1977. He filed a petition for reinstatement (94 Ill.2d R. 767) on June 10, 1983. Following an evidentiary hearing, a panel of the Hearing Board of the Attorney Registration and Disciplinary Commission recommended that the petition be denied. The petitioner filed exceptions. The Administrator, although urging that the Hearing Board's report and recommendation be affirmed, excepted to the admission of petitioner's group exhibit No. 1, which consisted of approximately 30 letters supporting the petition for reinstatement. The Review Board affirmed the Hearing Board's recommendation that the petition be denied but found that the panel of the Hearing Board erred in admitting the letters. The petitioner has filed exceptions.

At the evidentiary hearing conducted by the hearing panel, the following evidence was presented in regard to the conduct of the petitioner prior to his disbarrment. After his admission to the bar of Illinois in 1969, the petitioner worked as an associate for John Norton, an attorney in Belleville. He subsequently left that job, without giving notice to his employer, and took with him case files with an estimated value of $100,000. The petitioner had not been given authority to take the files. In March 1972, the petitioner was indicted for the offense of solicitation, in that "he, with the intent that the offense of abortion be committed, encouraged and requested Eugene White to commit that offense on Eloyce Wells." The petitioner had been having an affair with Ms. Wells. The charge was later dismissed with prejudice after the statute on which it was based was declared unconstitutional.

The petitioner was indicted in May 1975 for murder, solicitation to commit murder, and conspiracy to commit murder. The charges stemmed from the death of Ms. Wells' common law husband, William Wells. A jury found the petitioner not guilty of murder and solicitation, but guilty of conspiracy. The trial court subsequently granted the petitioner's motion for judgment not withstanding the verdict on the latter count. On at least two occasions, just prior to Wells' death, the petitioner had men call Wells and threaten his life. Those calls were characterized as a "stupid practical joke" by the petitioner at the evidentiary hearing before the hearing panel. Also in connection with the murder of Wells, the petitioner told a polygraph examiner that he had wanted to have Wells killed, but that a hit man cost too much money. The petitioner characterized that remark as being a "very flippant answer."

In November 1975, the petitioner was indicted for the offenses of conspiracy to transport stolen goods in interstate commerce and aiding and abetting the transportation of stolen goods in interstate commerce. The charges stemmed from his participation in a conspiracy to transport across State lines stolen jewelry worth over $100,000. As previously stated, the petitioner was found guilty of both counts. He received a 2 1/2-year sentence as to count I and as to count II was placed on probation for a period of three years to follow the period of imprisonment. The period of probation ended in June 1983, the same month that he filed his petition for reinstatement. In May 1976, the petitioner was indicted in Federal court for obstructing justice and conspiracy to obstruct justice by attempting to influence a prospective witness in a Federal case. A jury found him not guilty on both counts.

The following evidence was presented in support of the petitioner's reinstatement petition. While in prison he acted as a reading instructor, joined several self-improvement clubs, and helped organize religious services for members of the Jewish faith. After his release from prison he performed voluntary charity work for a Belleville radio station which provides radio broadcasts for the blind. He has been continuously employed since his release from prison and was working as a chemical salesman at the time his petition was filed. Subsequent to his divorce from his first wife, which occurred at the time he went to prison, the petitioner has supported his children financially and has maintained close contact with them. He assisted his father and stepmother prior to her death from cancer and continues to help his father, who is in poor health. He has lost weight, exercises regularly, and has taken college courses in computer programming. He has attempted to keep up with the changes in the law by reading bar journals. As to his conviction, the petitioner stated in his petition that "he has had a long opportunity to reflect on the error of his actions and sincerely regrets any participation he had in the events leading to the surrender of his license."

Several witnesses testified on the petitioner's behalf before the hearing panel. Dr. Francis Bihss, a physician who had known the petitioner for about 20 years and was a good friend of the petitioner's father, testified that in his opinion the petitioner is capable and trustworthy and deserves a second chance. Dr. Bihss stated that he was aware of the petitioner's convictions and imprisonment. The petitioner's former wife, Diane Rothenberg, testified that he had been extremely supportive both financially and emotionally since their divorce. Sheldon Weinstein, an attorney and former law school classmate, believed that the petitioner's reputation among his associates for honesty and integrity is good. Stewart Nayer, who had been the petitioner's supervisor at an employment agency where he had worked for four years after his release from prison, testified that the petitioner's present reputation for honesty, integrity, and fair dealing is good. The petitioner's present wife, Stephanie Friedman, whom the petitioner married in June 1983, testified that he has been a good husband.

The hearing panel also considered the evidence deposition of Roza Gossage, an attorney in Belleville. Gossage had known the petitioner since 1974, had represented him on various matters after his convictions were affirmed, and had reviewed his petition for reinstatement. The petitioner had also worked for her husband for a period of time after his release from prison. Gossage testified that the petitioner's reputation among his associates for honesty and integrity "seems to be good." Finally, the hearing panel admitted into evidence about 30 letters offered by the petitioner which were written by a variety of individuals in support of his petition for reinstatement. Included were letters from Bihss, Weinstein, Nayer, and Gossage.

Several witnesses also testified before the hearing panel in opposition to the petitioner's reinstatement petition. Gary Peel, president of the Madison County Bar Association, convened a meeting of that organization after being notified by the Administrator of the Attorney Registration and Disciplinary Commission of the petitioner's reinstatement petition. (94 Ill.2d Rules 767(d), (e).) All of the approximately 100 members present at the meeting voted against the petitioner's reinstatement. Peel stated that the petitioner's present reputation for truth and honesty among his peers in the area where he once practiced law is "bad to poor." William Sherwood, secretary of the Madison County Bar Association, was present at the same meeting. Although he had never met the petitioner, it was Sherwood's opinion that the petitioner's present reputation in the community is "one of an unsavory character." Marshall Smith, who was an assistant State's Attorney in Madison County in 1975 during the petitioner's murder trial, was also present at the meeting. Smith testified that "nobody would ever confuse truth and veracity with his [petitioner's] reputation." Robert Trone, an assistant State's Attorney in Madison County who had prosecuted the petitioner during his murder trial, also testified. In his opinion the petitioner's present reputation for truth and honesty within the legal profession of Madison County and with the general public is "not good."

Robert Wells, Jr., president of the St. Clair County Bar Association, was also notified by the Administrator of the petitioner's reinstatement petition. At a meeting attended by approximately 55 members, a resolution was passed, with only one dissenting vote, opposing the petitioner's reinstatement. Although Wells had not had any personal experience with the petitioner, it was his opinion that the petitioner's present reputation for truth and honesty is "poor." Robert Schmieder, the attorney who cast the dissenting vote at the bar association meeting, explained that he had objected to the resolution because it was incorrectly phrased, not because he favored the petitioner's reinstatement. Schmieder testified that the petitioner's present reputation in the community is "bad."

Additional testimony regarding the petitioner's reputation was presented by Phillip Montalvo and John Norton. Montalvo, an attorney in Belleville, testified as to a suit brought against the petitioner stemming from his work as the attorney for an estate. Montalvo stated that in his opinion the petitioner's present reputation for truth, honesty, and veracity among his peers is "bad." Norton, the petitioner's former employer, testified that the petitioner's present reputation in the community where he once practiced law is "really bad."

Other evidence presented by the Administrator in opposition to the petitioner's reinstatement related to his failure to comply with Supreme Court Rule 764 (87 Ill.2d R. 764) and his failure to fully comply with various provisions of Attorney Registration and Disciplinary Commission Rule 11.1, which pertains to petitions for reinstatement. (The rules of the Commission have been renumbered, and the substance of Rule 11.1 is now contained in Rule 402 of the Commission.) Supreme Court Rule 764 (87 Ill.2d R. 764) provides that, within 21 days after an attorney has been disbarred on consent, the attorney must notify all clients to whom the attorney is responsible for pending matters of the fact that he cannot continue to represent them. Prior to his disbarrment, the petitioner represented the administrator of an estate. He did not withdraw as attorney of record after his disbarrment and did not notify the parties of his disbarrment. In addition, the petitioner failed to set forth in his petition the details of his compliance with Supreme Court Rule 764 as required by Commission Rule 11.1(16).

The Administrator also raised the following technical objections to the information contained in the petitioner's reinstatement petition. In his response to Commission Rule 11.1(5) the petitioner failed to list a business relationship he had with an auto broker who ran a used-car business. The relationship started almost immediately after the petitioner's disbarrment on consent and continued for a period of approximately 11 months. The petitioner bought several cars together with the auto broker and "monitored" his "investments" at the broker's used-car lot. The petitioner acknowledged in his ...


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