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Ettinger v. Rolewick

OPINION FILED JANUARY 7, 1986.

MICHAEL D. ETTINGER, PLAINTIFF-APPELLANT,

v.

CARL D. ROLEWICK ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.

PRESIDING JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 28, 1986.

Plaintiff, Michael D. Ettinger, is an attorney licensed by the Illinois Supreme Court to practice law in this State. On August 27, 1984, he filed a complaint against defendants Carl D. Rolewick, Administrator, and the Illinois Attorney Registration and Disciplinary Commission seeking to enjoin defendants "from utilizing the transcript of plaintiff's testimony in United States v. Gervasi [(N.D. Ill. 1983), 562 F. Supp. 632], and all other fruits of the 1977 eavesdropping previously held unlawful by the Illinois Supreme Court in People v. Gervasi [(1982), 89 Ill.2d 522, 434 N.E.2d 1112]."

Defendants filed a motion to dismiss, challenging the jurisdiction of the circuit court and further alleging that defendants were not prohibited from using material which had been properly admitted in a proceeding before a court of record. On October 16, 1984, after considering the briefs and arguments of counsel, the trial court entered an order finding that it had jurisdiction, but otherwise sustained defendants' motion to dismiss. Plaintiff filed a timely notice of appeal. However, defendants did not appeal from the portion of the order denying their motion to dismiss on jurisdictional grounds.

Plaintiff is the subject of an investigation by defendants concerning possible alleged violations of the Illinois Code of Professional Responsibility. (87 Ill.2d R. 1-101 et seq.) Defendant Illinois Attorney Registration and Disciplinary Commission is the agency established by the Illinois Supreme Court pursuant to Supreme Court Rules 751 et seq. (87 Ill.2d R. 751 et seq.) to supervise the registration and disciplinary proceedings affecting members of the Illinois bar. Defendant Carl H. Rolewick (Administrator) is the administrator appointed by the Illinois Supreme Court to serve as the principal executive officer of the registration and disciplinary system. 87 Ill.2d R. 752.

On February 23, 1978, an indictment was returned in the circuit court of Cook County alleging that plaintiff participated in a scheme to bribe a police officer in order to arrange for the dismissal of a criminal charge against a client whom he was representing as co-counsel with John Gervasi. This prosecution was based, in part, upon the monitoring of certain telephone conversations engaged in by Officer Donald Furay with plaintiff, on November 3 and November 4, 1977, without plaintiff's consent. Court reporters, who overheard these conversations through a telephone from which the speaking element had been removed, transcribed the conversations. The day after the indictment was returned, the Administrator initiated an investigation pursuant to Supreme Court Rule 752 (87 Ill.2d R. 752) by observing the criminal proceeding.

In People v. Gervasi (1982), 89 Ill.2d 522, 434 N.E.2d 1112, the Illinois Supreme Court held that the 1977 monitoring of plaintiff's telephone conversations was in violation of the Illinois eavesdropping statute (Ill. Rev. Stat. 1977, ch. 38, pars. 14-1 et seq., 108A-1 et seq.), and upheld the suppression of the testimony and transcripts of the court reporters. However, the court found that this evidence did not violate the Federal or State constitutions and that the testimony of Officer Furay was admissible since it was not the fruit of the poisonous tree.

On September 14, 1982, the State prosecution was nol-prossed and plaintiff was indicted by a Federal grand jury for conspiracy, fraud and racketeering in violation of Federal statutes. (United States v. Gervasi (N.D. Ill. 1983), 562 F. Supp. 632.) The Federal prosecution was based on substantially the same facts as the State prosecution. However, the Federal district court denied plaintiff's motion to suppress the evidence pertaining to the eavesdropping on the grounds that the eavesdropping was lawful under Federal law and that the Illinois eavesdropping statute did not apply to Federal proceedings. Officer Furay was called as a prosecution witness. Plaintiff's complaint alleges that Officer Furay "had no independent recollection of the substance of the conversations other than the transcripts." The transcripts were admitted into evidence and read to the jury.

Plaintiff alleges that he was compelled to testify in his own behalf in order to rebut the transcripts of the telephone conversations. During his testimony, plaintiff admitted participating in a transaction which resulted in a payment of money to Officer Furay to induce him to act in a certain way in a pending criminal case. He testified that he believed his conduct did not constitute a criminal act and cited People v. Powell (1977), 48 Ill. App.3d 723, 362 N.E.2d 1329, rev'd (1978), 72 Ill.2d 50, 377 N.E.2d 803, cert. denied (1979), 440 U.S. 907, 59 L.Ed.2d 455, 99 S.Ct. 1214, which was admitted in evidence.

However, plaintiff admitted that his conduct was morally wrong. In response to a question by his own attorney, he testified: "Well, ethically, I'm probably going to lose my license." He further answered:

"Q. Did you think or do you think that the Powell case is going to protect your license?

A. No, sir."

The jury returned a verdict of not guilty.

Thereafter, the Administrator advised plaintiff that a disciplinary investigation of his conduct had begun based on the transcript of plaintiff's testimony at his Federal trial, and requested plaintiff to respond. Plaintiff, by letter and later by a motion to suppress before the Commission's Inquiry Board, asserted that the use of the transcript in the disciplinary action was prohibited by State law as the fruit of an unlawful eavesdropping. The motion was denied. Plaintiff then filed a motion for leave to file a petition for a writ of ...


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