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In Re Williams

OPINION FILED JANUARY 23, 1986.

IN RE GARY RICHARD WILLIAMS, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

This is a proceeding under our Rule 761 (94 Ill.2d R. 761) to discipline the respondent, Gary R. Williams, a member of the Illinois bar. This cause is before us because the Administrator of the Attorney Registration and Disciplinary Commission has filed exceptions to the report of the Review Board.

On March 18, 1983, the respondent was convicted by a jury in the United States District Court for the Northern District of Illinois, Eastern Division, on mail-fraud charges for participating in a scheme to defraud an insurance company. On May 4, 1983, the respondent was placed on four years' probation, to run concurrently, for each of the three counts of mail fraud for which he was convicted. It was further ordered that as a condition of probation the respondent was to participate in community service work for 300 hours at the discretion of the probation department. The respondent was also ordered to make restitution, with the amount to be determined by the probation department. His conviction was affirmed on appeal. United States v. Williams (7th Cir. 1984), 738 F.2d 172.

Following the procedure set forth in Rule 761, the Administrator filed a petition with this court alleging that the respondent had been convicted of three counts of mail fraud and requesting that this court suspend the respondent from the practice of law. On October 5, 1983, the respondent was suspended until further order of our court. The Administrator then filed a one-count complaint before the Hearing Board; a hearing was subsequently held. The Hearing Board filed a report in which it made findings of fact and conclusions of law. It concluded that the respondent engaged in illegal conduct which involved moral turpitude, a violation of Disciplinary Rule 1-102(a)(3) of the Code of Professional Responsibility (87 Ill.2d R. 1-102(a)(3)); conduct which involved dishonesty, fraud, deceit or misrepresentation, a violation of Disciplinary Rule 1-102(a)(4) of the Code of Professional Responsibility (87 Ill.2d R. 1-102(a)(4)); and conduct that was prejudicial to the administration of justice, a violation of Disciplinary Rule 1-102(a)(5) of the Code of Professional Responsibility (87 Ill.2d R. 1-102(a)(5)). The Board recommended that the respondent be suspended from the practice of law for a period of four years from October 5, 1983; that the suspension be stayed effective January 1, 1985; and that the respondent be placed on probation for a period to run concurrently with his Federal probation. The Board also made further recommendations with respect to the respondent's probation.

The Administrator filed exceptions with the Review Board to certain findings of the Hearing Board as well as to the Hearing Board's recommendation for discipline. The Review Board heard oral argument and filed a report affirming the findings of the Hearing Board. However, it recommended that the respondent be suspended from the practice of law for two years from October 5, 1983, or until he was released from Federal probation, depending on whichever occurred first.

The matter is now before us upon the Administrator's exceptions to the report of the Review Board.

The Administrator has presented three issues for review, namely: (1) whether the Hearing Board erred in admitting certain evidence over the objection that it was hearsay and irrelevant; (2) whether the findings of the hearing and review boards were contrary to the judgment of conviction; and (3) whether the Review Board erred in its recommendation of discipline.

Before we begin our analysis of the issues, we believe that it would be helpful in understanding this case if additional facts were set forth. As stated earlier, the respondent was convicted of three counts of mail fraud. His conviction stemmed from a false claim he made to his insurance company that his car had been stolen. The respondent was tried along with a co-defendant, Charles Vervlied. Like the respondent, Vervlied was charged and convicted of three counts of mail fraud.

The evidence at the respondent's trial established that the respondent caused his car to be delivered to Vervlied, who then sold it to an undercover Federal Bureau of Investigation (FBI) agent. The evidence showed that several days after the FBI agent had purchased the car, the respondent called the Orland Park police and reported that it had just been stolen from the Orland Square Shopping Center. When the police arrived at the shopping center, the respondent showed them where he had allegedly parked his car and then accompanied the police to the station house, where a written report was made and signed by the respondent. The respondent later mailed a claim for the loss of his car to his insurance company, notifying them of the alleged theft and of the police report that had been filed. The respondent received $10,410.41 on his claim.

Although the respondent did not testify at his trial, his co-defendant did. Vervlied's testimony regarding the respondent was to the effect that the respondent was not involved with him in the sale of the car. According to Vervlied, Bob Berrant (or Berent), an alley mechanic who had died before the trial, and he stole cars which belonged to Berrant's customers. Vervlied testified that after accepting cars to work on, Berrant would give the car to Vervlied to sell. According to Vervlied, Berrant's customers would not be told that their car had been stolen until a few days after Vervlied had sold that customer's car. Therefore, Vervlied's position was that although he had possessed and sold stolen cars he was not involved in a scheme to defraud an insurance company.

The respondent's position at the trial was that his car had been stolen while being repaired, that it had been transferred without his knowledge to Vervlied, and that he did not scheme to defraud his insurance company.

At the respondent's criminal trial, the jury was instructed that the government had to prove that a scheme or artifice to defraud was intentionally devised and that the respondent and Vervlied knowingly used or caused the mails to be used in furtherance of the scheme. The court also told the jury that a member of the scheme did not need to know all the details of the scheme nor did he need to know the means that would be used to accomplish the scheme. In addition, the judge instructed the jury that the government did not have to establish that the respondent and Vervlied knew each other's identity, had direct contact with each other, or that they had any express agreement. The judge did tell the jury, however, that the government had to prove that the respondent and Vervlied were aware of the common purpose; that they knew of each other's existence; and that they were willing participants who had the intent to advance the purpose of the scheme.

The Federal jury rejected the respondent's and Vervlied's positions and found that they were involved in a scheme to defraud the insurance company and used the mails to do so.

The respondent's position before the Hearing Board was similar to his position at trial. The respondent told the Hearing Board that because his car needed repairs he had given it to Bob Berrant for the necessary work. He also told the Board that Berrant called him a few days later and then came to his office. When Berrant arrived at the respondent's office, he was not driving respondent's car. In an offer of proof, the respondent stated that Berrant told him that his car had been stolen when Berrant had used it to run an errand to the Orland Square Shopping Mall. The respondent further testified that he and Berrant went to the Orland Square Shopping Mall and that he searched the parking lot for his car. He told the Hearing Board that when he was unable to locate his car he went into a store to call the ...


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