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In Re Carnow

OPINION FILED NOVEMBER 20, 1986.

IN RE DONALD S. CARNOW, PETITIONER.


Disciplinary proceeding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Petitioner, Donald S. Carnow, along with Benjamin Rosenthal, was disbarred on May 21, 1979. (See In re Rosenthal (1978), 73 Ill.2d 46.) On June 18, 1984, Carnow filed a petition for reinstatement pursuant to Supreme Court Rule 767 (103 Ill.2d R. 767). The Administrator of the Attorney Registration and Disciplinary Commission filed objections to the petition, arguing that petitioner should not be reinstated because his initial misconduct had been extremely serious, he had failed to make restitution, and he had failed to demonstrate that he was rehabilitated. A hearing panel ruled that petitioner had no duty to make restitution. However, a majority of the hearing panel felt that petitioner's initial misconduct had been so serious that he should not be reinstated under a petition filed after the minimum waiting period required by Rule 767. A dissenting panel member disagreed and recommended that petitioner be reinstated to the roll of attorneys.

A unanimous Review Board, with three members not participating, agreed with the hearing panel that under the particular facts presented petitioner had no duty of restitution. However, the Review Board disagreed with the hearing panel majority's recommendation that the petition be denied, and unanimously recommended that petitioner be reinstated.

The Administrator objects to the Review Board's recommendations and raises two questions for review: (1) Under the facts of this case is petitioner required to make restitution as a prerequisite to reinstatement? and (2) Has petitioner met his burden of demonstrating that he is qualified for reinstatement?

The facts underlying petitioner's disbarrment were set forth in this court's earlier opinion, and thus we need not discuss the facts in great detail. In 1969 petitioner was working for another attorney, Rosenthal, on a "space-for-services" basis. One of Rosenthal's clients, Joseph Pecord, desired a zoning variance for a parcel of property so that he could convert the property's use from a savings and loan to a nursing home. In reference to the variance, petitioner participated in the payment of $20,000 to Stanley Zima, an employee of the Chicago city council's Committee on Building and Zoning and a Democratic Party committeeman. The payment was to prevent Zima from interfering with the granting of the requested variance by the zoning board of appeals. The zoning board of appeals was a body completely distinct from the city council committee. Although Zima's position with the city of Chicago involved no powers or duties with regard to the zoning board of appeals, Zima apparently had the ability to influence the board through his political powers.

In 1972 petitioner met with Federal prosecutors regarding the payment to Zima. Petitioner claimed that he had been physically threatened prior to the meeting, and therefore he denied any payments to Zima. Later, after receiving a promise of protection as well as immunity from prosecution, petitioner testified against Zima, leading to Zima's conviction in Federal court on charges of extortion and income tax evasion.

This court's earlier opinion noted that the hearing panel, in its findings of fact, found that Carnow and Rosenthal "were retained by Pecord for the lawful, legal purpose of obtaining a zoning variance; [and] that, on the record before them, it appeared Pecord was entitled to the requested zoning variance but that his original petition was denied because of `political implications' * * *. The panel further found that it was `probably believable that [respondents] and their families were threatened by Zima with economic and bodily harm' and that their client was also threatened." In re Rosenthal (1978), 73 Ill.2d 46, 54.

Petitioner's reinstatement petition states that "[h]e is fully conscious of his guilt, and of the significance of his failure fully to acknowledge that wrongdoing during the disbarrment proceedings. He is contrite and remorseful, and regrets the impact of his conduct upon the profession, the public, his family, his friends, and himself." This statement was elaborated upon before the hearing panel, where petitioner testified:

"The legal profession in the main is not corrupt. The judicial system is not corrupt. There are infrequent situations where lawyers do get involved in unethical and criminal conduct.

I feel I have contributed to a false impression that has been left with the community, not by my conduct alone but the aggregation and the accumulation of the conduct over a period of years. And I feel badly for it. I do.

I have defamed the profession, and I regret it. * * *

I think that my conduct in 1969, the conduct in 1972, and my conduct in not striking my name when the complaint was filed was reprehensible."

Petitioner testified that he had not made any restitution to the city of Chicago for the $20,000 bribe paid to Zima. However, it was his belief that restitution was not required because he had not profited from the bribe, and the city had suffered no loss. He stated that he would be ...


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