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09/22/88 In Re Thomas H. Stern

September 22, 1988



529 N.E.2d 562, 124 Ill. 2d 310, 124 Ill. Dec. 581 1988.IL.1411

Disciplinary proceeding.


JUSTICE RYAN delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.


On January 21, 1986, the Administrator of the Attorney Registration and Disciplinary Commission filed a one-count complaint against Thomas H. Stern and Clayton Roger Test. The complaint charged Stern and Test with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; knowingly making a false statement of law or fact; participation in the creation or preservation of false evidence; failure to promptly reveal fraud upon a tribunal; and engaging in conduct which tends to defeat the administration of Justice or brings the court or legal profession into disrepute.

On December 9, 1986, the Hearing Board filed its report and recommendation. The report concluded that the evidence did not support sanctions for failure to promptly reveal fraud and creation of false evidence, but that the remaining charges had been established by clear and convincing evidence. The Hearing Board recommended 30-day suspensions for Stern and Test.

On July 31, 1987, the Review Board issued its report, finding that the evidence did not support sanctions against Test. The Review Board affirmed the Hearing Board's findings of fact and Conclusions of law as to Stern, but increased the recommended period of suspension to 90 days. Respondent Stern filed exceptions. This court denied the Administrator's petition for leave to file exceptions. Only Stern's case is before this court.

The facts, though complicated, are essentially undisputed. The issue before this court is whether Stern's conduct warrants discipline and, if so, what sanction should be imposed.

In December of 1981, Stern's marriage became the subject of a dissolution proceeding in the circuit court of Cook County. In February of 1982, an order was entered in the course of that proceeding which required Stern to maintain health insurance coverage for his wife and the couple's minor children. Stern complied through a group policy which also insured Stern and the employees of Stern's law office.

In October 1982, Test became associated with Stern's law firm as an independent contractor. Due to that status, Test was not covered by the existing group policy. Test asked Stern whether such coverage could be arranged, and Stern agreed. Stern gave Test the responsibility for procuring new insurance, and Test set out to obtain quotes from different insurance companies.

Stern and Test ultimately decided to do business with Emiliano Mendoza. Mendoza provided quotes, took a census of the members of the group and, on December 7, 1982, accepted a check from Stern for the amount of the premium. At that time, Mendoza assured Stern that the policy would be effective as of the date the applications were signed. On December 9, Test wrote a letter of confirmation to Mendoza and followed that up with a phone call approximately one week later. The Hearing Board found that both Stern and Test believed that the new insurance was in effect at that time.

Meanwhile, Stern's previous policy had been allowed to lapse for nonpayment of premiums. On December 27, 1982, Mrs. Stern went to a hospital for tests and tendered the previous medical insurance, but was told that the policy was cancelled. On January 10, 1983, Mrs. Stern petitioned the circuit court for a rule to show cause why Stern should not be held in contempt for failure to maintain health insurance as required by the February 4, 1982, order.

On January 10, Stern instructed Test to contact Mendoza to get to the bottom of the insurance problem and also to obtain a letter from Mendoza confirming the purchase of the group policy on December 7. When Test asked for such a letter, Mendoza informed him such a confirmation could not be given. Apparently, Mendoza had erred in his assertion to Stern that the policy would be "guaranteed." Rather, he had sold Stern an "underwritten" policy, which required investigation and approval of the medical histories of the applicants ...

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