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12/30/87 In Re W. Jason Mitan

December 30, 1987

IN RE W. JASON MITAN, PETITIONER.


SUPREME COURT OF ILLINOIS

518 N.E.2d 1000, 119 Ill. 2d 229, 116 Ill. Dec. 179 1987.IL.1943

Disciplinary proceeding.

APPELLATE Judges:

CHIEF JUSTICE CLARK delivered the opinion of the court. JUSTICE SIMON took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

This matter is before us on various motions arising out of a verified petition filed by disbarred attorney W. Jason Mitan for his reinstatement to the roll of attorneys licensed to practice law in Illinois. In January 1979, this court ordered that Mitan be disbarred for making false statements and omitting material information in his application for admission to the practice of law in Illinois. (In re Mitan (1979), 75 Ill. 2d 118.) This court found that Mitan had, among other things: concealed the fact that he was a convicted felon, failed to disclose three separate arrests which did not lead to conviction, misstated his date of birth, and failed to reveal a prior legal change of name as well as a previous marriage and divorce. After detailing the "pattern of falsehood and deception" in the sworn statements and questionnaires Mitan submitted to the Committee on Character and Fitness, the court concluded that Mitan's application evidenced "a calculated effort . . . to frustrate any meaningful examination and investigation of the applicant's fitness to practice law." (75 Ill. 2d 118, 126.) Disbarrment was required, the court held, because Mitan's concealment of his felony conviction (for involvement in a confidence game) constituted a fraud upon the court, and his application was replete with other falsehoods and omissions. The order disbarring Mitan was stayed until January 9, 1980.

In this matter, three principal issues are presented for decision: (1) whether either section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat., 1986 Supp., ch. 110, par. 2-611) or the court's inherent power to govern the practice of law in this State permits review of attorney conduct in the preparation and filing of a petition for reinstatement, and (2) if so, whether sanctions should be imposed against the attorneys who prepared and filed Mitan's petition; and (3) whether sanctions should be imposed upon the Administrator of the Attorney Registration and Disciplinary Commission (the ARDC) for a violation of the supreme court rule requiring the Administrator to maintain the confidentiality and privacy of ARDC investigations (107 Ill. 2d R. 766).

In June 1985, Mitan retained the following attorneys for the purpose of assisting him in the preparation of a petition for reinstatement as an attorney: Daniel M. Pierce and Jeffrey P. DeJong, both of Altheimer & Gray; Jerold S. Solovy of Jenner & Block; and M. Cherif Bassiouni, a professor of law at DePaul University College of Law. As an initial matter, Pierce drafted a petition seeking an executive pardon for Mitan's felony conviction, then nearly 25 years old. The petition, which listed only Pierce as counsel, was filed with the Illinois Prisoner Review Board on July 29, 1985. It did not disclose that Mitan was a disbarred attorney.

In October 1985, Mitan appeared before the Prisoner Review Board, with Pierce as his counsel. A copy of a transcript prepared from an audio recording of the proceeding is included in the record before us. It reveals that Pierce, in introducing Mitan to the Prisoner Review Board, made no reference to the fact that Mitan was a disbarred attorney, though he stated that Mitan had graduated from DePaul University College of Law. In a sworn statement made to the Board before questioning, Mitan stated that he was sorry about his felony conviction and expressed his desire "to put it behind me and go on with my life." The following questions were then asked of Mitan and answered by him under oath:

"BOARD MEMBER: Is there any other specific reason why you need a pardon? Did you finish in law?

MITAN: Yes, I did.

BOARD MEMBER: Have you taken the bar exam?

MITAN: I would need a pardon here.

BOARD MEMBER: Are you employed now?

MITAN: Yes, I work for --

BOARD MEMBER: There's no mention here about your employment.

PIERCE: Self-employed.

MITAN: I'm self-employed. I'm self-employed. I'm in the real estate business. We purchase on sale lease-back arrangements and obtain investors.

BOARD MEMBER: Do you plan to take the bar?

MITAN: Yes."

Following the proceeding, the Board recommended an executive pardon, which was granted by the Governor on April 7, 1986.

According to an affidavit filed by John A. Holtaway, senior counsel for the ARDC, in a letter dated May 5, 1986, Pierce first advised the ARDC that he had been retained to represent Mitan in a reinstatement proceeding. In the letter, Pierce requested that materials in the ARDC's file on Mitan be made available for his review. Shortly thereafter, Pierce and Holtaway conferred by telephone and arranged to meet on May 16, 1986, at the ARDC's Chicago office. At the meeting, Pierce again requested to see the ARDC files on Mitan. Holtaway told Pierce that information regarding Mitan was contained in numerous ARDC files, and that it would take time to assemble and produce the information. At Holtaway's request, John C. O'Malley, Deputy Administrator of the ARDC, joined the meeting.

Deputy Administrator O'Malley told Pierce that the Administrator believed Mitan was not a fit candidate for reinstatement and, more specifically, that he believed that Mitan had continued to practice law after his disbarment. He suggested that Pierce question Mitan as to his business relationship with the following persons: Eunice Royal, Janet DeAndrea, Jan McDaniels, Pryor Owens, Stanley Wilcox, Thomas Jordan, Vernon Wesby, Ernest Powell, Robert McAuliffe, and Joseph Rosin. The Deputy Administrator explained that if Pierce queried Mitan as suggested, and if Mitan told the truth, Pierce would learn about Mitan's alleged unauthorized practice of law. An affidavit filed by Deputy Administrator O'Malley indicates that he further told Pierce that if, after questioning Mitan or interviewing the above-named individuals concerning Mitan's activities, Pierce still believed that Mitan was a suitable candidate for reinstatement, the ARDC would compile and make available for inspection the information it possessed relating to Mitan.

In a second telephone conversation, on May 20, 1986, Pierce asked Holtaway to "send over" copies of the ARDC's information and material on Mitan. There is no indication in Holtaway's affidavit what his reply was to Pierce's third request to see the relevant ARDC information. Later, however, Holtaway told Deputy Administrator O'Malley about the conversation and it was then decided that the ARDC would not begin assembling the requested material until Pierce confirmed that he had questioned Mitan about his association with the aforementioned persons. It is not apparent from either Holtaway's or the Deputy Administrator's affidavits whether Pierce ever received notice of the ARDC's decision. Holtaway states that he did not hear from Pierce again until Mitan's petition for reinstatement was filed with our court, over seven months later.

On November 5, 1986, S. Allen Early, Jr., and S. Allen Early III, attorneys licensed to practice in Michigan but not in Illinois, filed a petition to participate as attorneys on behalf of Mitan in proceedings for his reinstatement. This court allowed the petition on December ...


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