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08/17/87 In Re Edward A. Loss Iii

August 17, 1987



518 N.E.2d 981, 119 Ill. 2d 186, 116 Ill. Dec. 160 1987.IL.1185

Petition for admission to the bar.


JUSTICE GOLDENHERSH delivered the opinion of the court. JUSTICE WARD took no part in the consideration or decision of this case. JUSTICE RYAN, specially Concurring. CLARK, C.J., and MORAN and MILLER, JJ., join in this special concurrence. JUSTICE SIMON, Dissenting.


On November 21, 1984, petitioner, Edward A. Loss III, submitted to the State Board of Law Examiners (Board) his application for admission to the bar of Illinois. An inquiry panel of the Committee on Character and Fitness voted to recommend that petitioner not be certified to the Board for admission to the bar. Pursuant to Rule 4.4 of the committee's rules of procedure, petitioner's application was referred to a hearing panel. After hearing testimony, the panel voted to certify to the Board that petitioner was fit to be admitted to the bar. Subsequently, the full committee considered and approved petitioner's application, and upon receipt of certification (87 Ill. 2d R. 708(d)), the Board recommended to the court that petitioner be admitted. In an order entered on June 4, 1986, stating that "upon review of the extraordinary circumstances brought out at the hearing before the Character and Fitness Committee" it was unable to say that petitioner had satisfactorily established that he was of good moral character, the court granted petitioner leave to file a petition for admission addressing the question of character and fitness. The Administrator of the Attorney Registration and Disciplinary Commission was directed to file a response, and the parties have filed briefs and argued orally.

Petitioner contends that this court has delegated to the committee the authority to determine whether an applicant has established that he is of good character and fit for admission to the bar. He argues that our decisions have consistently held that the court will not reverse the committee's finding (In re Ascher (1980), 81 Ill. 2d 485; In re Frank (1920), 293 Ill. 263) unless there has been an abuse of discretion. He argues, too, that under Supreme Court Rule 708(c) (87 Ill. 2d R. 708(c)) certification by the committee entitles him to admission. Finally, he contends that to deny his admission to the bar would deny him due process.

The Administrator contends that the court has the inherent jurisdiction to review the recommendation of the committee and should deny petitioner's application for the reason that his record shows him to be unfit for admission to the bar of Illinois.

The record shows that petitioner was born in 1947 and that, from the early 1960's until approximately 1980, he was involved in juvenile delinquencies, criminal activity, and drug and alcohol addiction. While a student at high school, petitioner was suspended on approximately 23 occasions, and on his first job was discharged for stealing money from vending machines. He was charged with robbery and, as an alternative to conviction, was given an opportunity to enter military service. He enlisted in the Marine Corps. While in the Marine Corps, he was absent without leave for a period of 71 days and ultimately was given an undesirable discharge. Petitioner was also arrested and convicted on charges of disorderly conduct (for stealing money), selling marijuana, and possession of heroin, cocaine and marijuana. The record is not clear as to the number of convictions. He used various aliases. In 1975, petitioner was arrested for possession of marijuana, selling heroin, and for theft from a gasoline station.

In December 1980, petitioner submitted an application for admission to the DePaul University College of Law. He appears to have been less than candid in his application and failed to reveal convictions for disorderly conduct and theft. The application contains other answers which appear to be less than accurate. In contrast to his application for admission to law school, his application for admission to the bar candidly reveals facts and details about his background, including arrests and convictions not previously noted. During his law school years he was an excellent student, started a business by means of which he supported his family, and aided and befriended many of his fellow students.

At the hearing, a United States district Judge testified that for two semesters petitioner had worked with him in his extern program, that his work was excellent, and that he believed petitioner to be an individual of great integrity. He further testified that, knowing of petitioner's experience with drugs and alcohol, his arrests, and his undesirable discharge from the Marines, he believed petitioner to be of good character. Two professors at the law school attended by petitioner testified that he had been completely rehabilitated, and they believed him presently to be of good moral character. They recommended his admission to the bar. An employment counselor for the Safer Foundation testified in petitioner's behalf. A number of petitioner's friends and fellow students testified in his behalf, and several of his classmates expressed gratitude for help petitioner had given them in courses with which they had difficulty at law school.

We consider first petitioner's contention that the court has delegated to the committee its power to determine whether an applicant is of good character and fit to practice law. Simply stated, it is petitioner's position that the court has provided by rule that the matter is to be determined by the committee and has further provided therein that, upon certification by the committee, an applicant is "entitled to admission" (87 Ill. 2d R. 708(c)) and that there is no provision in the rule for review by the court of a decision favorable to an applicant. He argues further that the rule has the force of law and that he had the right to rely upon the provision of the rule that upon certification by the committee he would be admitted.

This court is vested with the inherent power to regulate admission to the bar. (In re Application of Day (1899), 181 Ill. 73.) This power carries with it the concomitant duty to protect the public from dishonesty and incompetency on the part of members of the bar. (People ex rel. Chicago Bar Association v. Goodman (1937), 366 Ill. 346, 349-50.) The exercise of the power and the discharge of the duty require that the final judgment concerning admission of an applicant rest with this court. The determination by the committee concerning the character and fitness of the applicant, although entitled to weight, is advisory, and neither binds this court nor limits its authority to take action. In re Mitan (1979), 75 Ill. 2d 118.

Petitioner asks hypothetically, assuming that the court is to review the committee's findings, in what manner is it to obtain pertinent information. The short answer is that the court may initiate such review, sua sponte, or upon the basis of information regardless of its source. It may inquire into events subsequent to the certification or require additional information concerning events which occurred prior to the hearing before the committee. Rule 708(a) provides that the members of the Board are ex officio members of the committee. Although the Historical and Practice Notes contain no explanation for the inclusion of this provision, it would appear that the court wished the Board to be aware of all proceedings before the committee in order that the court might be fully advised concerning those proceedings.

Petitioner argues, with justification, that a denial of admission without further procedures following certification would constitute a denial of due process. It should be noted that here, the court, sua sponte, provided an opportunity for petitioner to appear and persuade the court that the record before the committee did, indeed, support the Conclusion that he had been fully rehabilitated and was fit to be admitted to the practice of law.

We turn to petitioner's contention that, absent arbitrary action by the committee, our prior decisions preclude review by this court. The court has not previously considered a standard of review of a finding that an applicant be certified; the cases reviewed have involved denials of certification. (See, e.g., In re Frank (1920), 293 Ill. 263; In re Latimer (1957), 11 Ill. 2d 327; In re Ascher (1980), 81 Ill. 2d 485.) Review in those cases required that we respect the grant to the committee of discretion in certification (In re Frank (1920), 293 Ill. 263) and also protect an applicant's right to due process and to be free from arbitrary action by the committee. See Schware v. Board of Bar Examiners (1957), 353 U.S. 232, 1 L. Ed. 2d 796, 77 S. Ct. 752.

Different concerns are present here, and a different standard of review applies. A review of a grant of certification involves the court's duty to protect the people of Illinois against incompetency and dishonesty on the part of members of the bar. (People ex rel. Chicago Bar Association v. Goodman (1937), 366 Ill. 346, 349-50.) "A license granted by this court to practice is a guaranty that, as far as this court is advised, the person holding such license is a fit person . . .." (In re Rosenberg (1953), 413 Ill. 567, 576.) In order to provide such guaranty the court must determine that the record shows by clear and convincing evidence that petitioner has been rehabilitated and is fit to practice law. In re Kuta (1981), 86 Ill. 2d 154, 157.

We consider next petitioner's contention that under Supreme Court Rule 708(c), having been certified by the committee, he is entitled to admission to the bar. A rule, like a statute, must be construed to avoid an absurd or unconstitutional result. Were we to construe Rule 708(c) in the manner urged by petitioner we would face the absurd situation that, confronted with the record here, we were powerless to consider the correctness of the decision to certify and would be required to blindly admit petitioner. This does not comport with our duty to protect the People against incompetency and dishonesty on the part of members of the bar. (People ex rel. Chicago Bar Association v. Goodman (1937), 366 Ill. 346, 350.) In In re Mitan (1979), 75 Ill. 2d 118, the court held that the omission of information from an attorney's application for admission to the bar constituted fraudulent concealment of improper activities which warranted disbarment. If conduct prior to admission was held to be the basis for disbarment, there is no impediment to the exercise of this court's authority prior to admission. To read literally the language of the rule would divest this court of jurisdiction to review the finding of the committee and thereafter deny admission, resulting in an unconstitutional delegation of our jurisdiction and an abdication of our duty to regulate the bar of this State.

We consider now petitioner's contention that he relied upon procedures outlined in our rules, that this reliance entitles him to admission, and that to deny him admission results in a fundamental unfairness. An applicant for admission to the bar has no vested interest in the continued existence of a rule of this court. (Schlenz v. Castle (1981), 84 Ill. 2d 196.) The rules of this court are under constant review and are frequently amended and revised. Petitioner, like all other litigants, is bound by this court's construction of the rule. Unfortunate language in the rule upon which petitioner relied will not serve to divest this court of jurisdiction to perform its constitutional duty. The procedure followed provided petitioner all of the due process which the situation required.

We consider next petitioner's assertion that he could not foresee the lengthy 18-month "roller coaster" process that his application generated and that the ensuing delay denied him fundamental fairness. The transcript shows that his record merited close scrutiny, and in view of petitioner's record, the hearing and the extensive testimony were necessary and proper. The review was essential to the protection of the integrity of the bar and the interests of the People of this State. In light of the circumstances, we cannot say that the time elapsed has been unduly lengthy. See, e.g., In re Latimer (1957), 11 Ill. 2d 327.

We consider now petitioner's contention that he is fully rehabilitated and fit for admission to the bar. The burden of proving good present moral character is on petitioner. (In re Ascher (1980), 81 Ill. 2d 485, 498.) Because of his prior record, petitioner also bears the burden imposed upon an applicant for reinstatement to the bar to show by clear and convincing evidence not only that he is ready to "'return' to a beneficial, constructive and trustworthy role" in society (In re Wigoda (1979), 77 Ill. 2d 154, 159), but also that his rehabilitation is such that he is a fit person to practice law.

Rehabilitation is the important factor in the court's evaluation of a petition for reinstatement (In re Silvern (1982), 92 Ill. 2d 188), and the same rationale applies here.

A member of the Illinois Board of Law Examiners has examined indicia of rehabilitation of character and fitness. (Duhl, Character and Fitness -- The Rehabilitation Factor, The Bar Examiner, Feb. 1983, at 11.) The factors, based primarily on Schware v. Board of Bar Examiners (1957), 353 U.S. 232, 1 L. Ed. 2d 796, 77 S. Ct. 752), are (1) community service and achievements, as well as the opinions of others regarding present character; (2) candor before the court; (3) the age of the applicant at the time of the offenses; (4) the amount of time which has passed since the last offense; (5) the nature of the offenses; and (6) the applicant's current mental state.

Petitioner has presented an impressive list of character witnesses, including former classmates, professors and employers who attest to his rehabilitation and present good moral character. He has presented evidence of his academic achievements, including his graduation with honors, his externships and clerkships, his participation on law review, and his tutoring of a handicapped law student. He notes that his last arrest occurred more than 11 years ago and asserts that he has overcome his drug and alcohol addiction. He points out that his arrests occurred during those years when he was addicted to drugs, and that most of his offenses were drug related.

Although the Administrator did not present evidence at the hearing before the committee, he has moved in this court to supplement the record with newly discovered evidence. He argues that petitioner's testimony was inconsistent, lacking in candor, and revealed additional misrepresentations in his application for admission to the bar. He contends that the record requires denial of petitioner's application.

We need not lengthen this opinion by specific citations to the transcript, but we agree with the Administrator that the proceedings before the committee reflect inconsistencies in petitioner's testimony and belated recollection of matters omitted from his application for admission to the bar. We note further that the Administrator's motion for leave to supplement the record contains allegations which, if proved, may be relevant to the issues of rehabilitation and present good moral character and that a document filed by petitioner in this court shows that subsequent to the hearing before the committee petitioner's marriage was dissolved.

Upon consideration of the record in its entirety, we conclude that the evidence does not support the finding that petitioner is presently of good character and sufficiently rehabilitated to be admitted to the practice of law.

Notwithstanding the Conclusion reached, we note that rehabilitation is a continuing process and the record reflects substantial improvement in petitioner's condition. We find apposite here our statement in In re DeBartolo (1986), 111 Ill. 2d 1, that petitioner's prior conduct need not "bar him for life from the practice of law. Just as an attorney who has been disbarred, disbarred upon consent, or suspended until further order of the court may, after passage of the applicable period of time, seek reinstatement (see 94 Ill. 2d R. 767), by analogy the petitioner here should be allowed to reapply for admission, and he may do so at this time. Upon the petitioner's reapplication, the committee may consider all matters that are relevant to his moral character and general fitness to practice law, including his conduct since the hearing held here and his candor in filling out his new application and in responding to whatever inquiry the committee makes." 111 Ill. 2d 1, 6-7.

For the reasons stated, the petition for admission is denied.

Petition denied.


Petition denied. ...

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