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02/22/89 In Re Henry Byron Rothenberg

February 22, 1989



535 N.E.2d 849, 127 Ill. 2d 139, 129 Ill. Dec. 84 1989.IL.215

Disciplinary proceeding.


JUSTICE WARD delivered the opinion of the court. STAMOS and CALVO, JJ., took no part in the consideration or decision of this case. JUSTICE MILLER, specially Concurring.


The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint charging the respondent, Henry Byron Rothenberg, with having given a thing of value to a judicial officer in violation of Rule 7 -- 110(a) of the Illinois Code of Professional Responsibility (107 Ill. 2d R. 7 -- 110(a)); with engaging in conduct prejudicial to the administration of Justice in violation of Rule 1 -- 102(a)(5) of the Code (107 Ill. 2d R. 1 -- 102(a)(5)); with engaging in actions tending to bring the court and legal profession into disrepute in violation of Supreme Court Rule 771 (107 Ill. 2d R. 771); and with failing to avoid the appearance of impropriety in violation of Canon 9 of the Code (107 Ill. 2d Canon 9). The grounds for the charges were that the respondent had made loans on seven occasions between May 1978 and March 1984 totaling $8,700 to Reginald J. Holzer, who was then a Judge of the circuit court of Cook County. The loans, except for $500, were repaid. No interest was paid or charged. The panel found the amount of the loans was $8,000. During this period the respondent appeared as the attorney of record in one case being litigated before Holzer and he was appointed by Holzer in eight cases to serve as a guardian ad litem, to conduct an inventory and in other capacities. In seven of these cases, the hearing panel found that the respondent was awarded fees by Holzer. The total of the fees awarded appears to be $3,439.

The hearing panel found that Rothenberg was guilty of the violations charged and recommended that he be suspended from the practice of law for 18 months. The Review Board recommended that the respondent be censured. Six members of the Board made this recommendation; two members did not participate in the decision and one member of the Board recommended suspension for three months.

Rothenberg was admitted to the bar of Illinois in 1934 and has been engaged in the practice of law since that time except for a period of military service during World War II.

The respondent became acquainted with Reginald Holzer prior to the war. In about 1950 Holzer approached the respondent and told him that he was interested in joining his law firm. He did enter the firm and served as a partner for about five years. During his practice with the firm, he frequently received loans from the partnership, and when he left he was overdrawn on his partnership account. The respondent was the managing partner of the firm and was responsible for collecting what was owed by Holzer. Holzer did satisfy this obligation to the firm. Rothenberg states that after Holzer left the firm he continued to borrow from the respondent from time to time. Later Holzer became a Judge and between 1978 and 1984 solicited the loans concerned here from Rothenberg. When questioned by an agent of the Federal Bureau of Investigation, the respondent confirmed that he had made the loans he was asked about and told the agent there was, in addition, a loan of $3,000 to Holzer.

The respondent testified that until he appeared before a grand jury to testify regarding Holzer he was not aware of a prohibition against a lawyer's lending money to a Judge. He acknowledges though that an attorney has an obligation to be informed of the ethical standards of the profession. That there were violations of the standards of professional responsibility is clear. In re Corboy (1988), 124 Ill. 2d 29; In re Heller (1988), 126 Ill. 2d 94.

In considering the sanction to be imposed, we observe that the purposes of an attorney disciplinary proceeding are to preserve the integrity of the legal profession and to protect the public interest. Uniformity of sanctions according to the standard violated is to be striven for, but it must be recognized that each case of misconduct must be individually decided.

The respondent is 76 years of age, has Parkinson's disease and maintains a limited practice. He was commissioned a second lieutenant in the United States Army Reserve upon his graduation from the University of Illinois in 1934 and served in the Reserve to 1962, when he was retired as a full colonel. He served in the European Theatre during World War II. The respondent was a military aide to three governors of Illinois. A

The Review Board in recommending censure, rather than a suspension of 18 months as the hearing panel recommended, said that the mitigating evidence included Rothenberg's age, poor health, long and unblemished career in the law, his voluntary disclosure of a $3,000 loan, his longtime relationship with Holzer and the making of loans to him beginning in the 1950s, and the Administrator's acknowledgement that there was no evidence that the loans were made in an attempt to gain Holzer's favor. The Administrator, in recommending suspension and not disbarment, refers to the respondent's "long and well respected legal career," his military service, candor with the Administrator and Federal authorities, his relationship with Holzer, his age and poor health.

It is often observed that disparity of sentences is one of the most vexing problems in the criminal Justice system. It is really, however, improper disparity that gives rise to the problem. A complete uniformity of sentencing according to offense is neither possible nor desirable, for distinctions must be drawn. The offender and the circumstances in each case are different from every other case. So it is in professional discipline. In each case of professional misconduct the sanction must be tailored to the offender and the circumstances. We consider that the situation here differs from other cases in which disbarment was ordered. Here the relationship between Holzer and the respondent antedated by many years Holzer's becoming a Judge. As a young lawyer Holzer asked the respondent for employment and was admitted to his law firm. Holzer's borrowing began at that time. After leaving the firm Holzer continued to borrow from the respondent, and after he became a Judge, what had become a pattern ...

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