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03/29/89 In Re Steven B. Lunardi

March 29, 1989

IN RE STEVEN B. LUNARDI, ATTORNEY, RESPONDENT.


SUPREME COURT OF ILLINOIS

537 N.E.2d 767, 127 Ill. 2d 413, 130 Ill. Dec. 438 1989.IL.426

Disciplinary proceeding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. MORAN, C.J., and WARD and MILLER, JJ., took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

On February 21, 1986, respondent, Steven B. Lunardi, was convicted on a plea of guilty to unlawfully possessing less than 30 grams of a substance containing cocaine in violation of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)). On April 23, 1986, the Administrator of the Attorney Registration and Disciplinary Commission filed a petition pursuant to Supreme Court Rule 761 (107 Ill. 2d R. 761), seeking respondent's suspension from the practice of law based upon the conviction. This court issued a rule to show cause on May 5, 1986. On October 7, 1986, the rule was continued and the Commission was directed to expedite disciplinary proceedings. In March 1988, the rule to show cause was discharged.

The Administrator, meanwhile, had filed a two-count complaint on December 10, 1986, charging respondent with professional misconduct. The Administrator alleged in count I that respondent had violated Rule 1 -- 102(a)(3) (engaging in illegal conduct involving moral turpitude), Rule 1 -- 102(a)(5) (engaging in conduct that is prejudicial to the administration of Justice), Rule 7 -- 102(a)(8) (engaging in other illegal conduct or conduct contrary to a disciplinary rule while representing a client), and Canon 9 (failing to avoid the appearance of professional impropriety) (107 Ill. 2d Rules 1 -- 102(a)(3), 1 -- 102(a)(5), 7 -- 102(a)(8), Canon 9) of the Illinois Code of Professional Responsibility (the Code) (107 Ill. 2d R. 1 -- 101 et seq.), based upon respondent's conviction and prior actions. In count II, which was based on a loan from respondent to Judge Witt of the circuit court of Lake County, the Administrator alleged that respondent violated Rule 7 -- 110(a) (giving or lending a thing of value to a Judge), Rule 1 -- 102(a)(4) (engaging in conduct involving fraud, deceit or misrepresentation), Rule 1 -- 102(a)(5) (engaging in conduct that is prejudicial to the administration of Justice), and Canon 9 (failing to avoid the appearance of professional impropriety) of the Code. (107 Ill. 2d Rules 7 -- 110(a), 1 -- 102(a)(4), 1 -- 102(a)(5), Canon 9.) After respondent filed his answer on February 4, 1987, the Hearing Board granted the Administrator's motion to file an amended complaint, which was filed on April 6, 1987. The complaint was amended by adding a third count charging respondent with violating the same four disciplinary rules alleged in count II, based upon a second, different loan from respondent to Judge Witt.

A panel of the Hearing Board found that respondent had violated Rules 1 -- 102(a)(3) and 7 -- 102(a)(8) and Canon 9 concerning count I. The panel further found that respondent had violated Rules 7 -- 110(a) and 1 -- 102(a)(5) and Canon 9 concerning counts II and III. The panel recommended that respondent be suspended from the practice of law for three years, with all but the first 60 days to be stayed, and that respondent be placed on disciplinary probation with certain conditions. The Administrator filed exceptions to the Hearing Board's report and recommendation and respondent filed cross-exceptions. The Review Board adopted the findings of fact and Conclusions of law made by the Hearing Board, but recommended that respondent be suspended from the practice of law for one year. Respondent then filed a motion in this court to allow his exceptions to the Hearing Board's report and recommendations to stand as his exceptions to the Review Board's report and recommendation. We allowed respondent's motion on March 28, 1988.

At the hearing conducted by the Hearing Board and also during his oral argument before this court, respondent acknowledged that his conduct constituted professional misconduct under the three counts of the complaint. While respondent argues that his conviction does not constitute "moral turpitude" within the proscriptions of Rule 1 -- 102(a)(3), the paramount issue before this court, as respondent conceded during oral argument, is what discipline should be imposed. With that in mind, we shall examine respondent's conduct and the facts, findings and recommendations as to count I separately from counts II and III.

COUNT I

Respondent was licensed to practice law in this State in 1975. Following his admission to the bar, respondent served as an assistant State's Attorney in Lake County for over two years. As an assistant State's Attorney, respondent prosecuted, both at trial and as plea bargains, a variety of misdemeanor offenses, including possession of controlled substances. In 1978, respondent joined a law firm as an associate and concentrated in criminal law; on occasion he represented clients charged with possession of controlled substances, including marijuana and cocaine. Respondent opened his own firm in 1980, and in 1981 entered into a partnership with another attorney. Between 1980 and 1985, respondent estimated, 75% of his practice related to criminal or quasi-criminal law. The partnership was dissolved in 1986, and since that time respondent has worked as a sole practitioner.

A psychiatrist and assistant professor at Northwestern University, who treated respondent and who concentrates in the field of addiction and chemical dependency, testified that respondent first used cocaine sometime around 1979. At some point between 1979 and 1983, according to the doctor, respondent became addicted to cocaine. By January 1985, respondent was using approximately one gram of cocaine per day. He also purchased and used marijuana and consumed fairly large amounts of alcohol during this same time period.

Respondent was arrested for possession of cocaine on May 21, 1985. Earlier that day, respondent had given Gus Karabetsos, a social acquaintance from whom respondent had previously purchased cocaine, $1,800 to purchase an ounce of cocaine. Karabetsos made the purchase and delivered it to respondent that evening.

Respondent was indicted by a Lake County grand jury for possession of a controlled substance under section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)). Respondent initially pleaded not guilty, but following negotiations with the Attorney General's office, eventually pleaded guilty and was convicted and sentenced on that charge on February 21, 1986. Respondent was sentenced to a term of 30 months' conditional discharge, pursuant to section 5-6-3 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-3). Respondent was also ordered to successfully complete a drug rehabilitation program, consent to periodic drug screenings, and perform 240 hours of community service by participating in programs relating to the assistance of drug users. Respondent was further ordered to pay a fine of $11,179.03, the unpaid balance on his 1984 Corvette, which had been confiscated at the time of his arrest; respondent agreed not to contest the forfeiture of the car as part of the sentence. Moreover, respondent was required to testify truthfully in all matters relating to the source of the cocaine he possessed on May 31, 1985. He was also prohibited from appearing as counsel of record or assisting counsel for the duration of the conditional discharge period in any felony case or drug-related case, except specific pending cases in which his appearance was pro bono.

The Hearing Board and Review Board concluded that respondent had not only fulfilled the terms of his conditional discharge, but had in fact exceeded the number of hours of community service required. Testimony at the hearing indicates that respondent zealously pursued all efforts at rehabilitating himself. Following the successful completion of a 28-day drug rehabilitation program at Martha Washington Hospital, respondent became involved with and attended, and continues to attend, regular meetings of a number of groups, including or affiliated with Narcotics Anonymous, Alcoholics Anonymous, Martha Washington Hospital and Lawyers Assistance Program. He assisted in developing a Lake County office of the Lawyers Assistance Program, and conducts meetings in his office. He is also a trained intervenor with the Lawyers Assistance Program. Indeed, we find that respondent's response to this incident has been nothing short of remarkable. We adopt the finding of the Hearing Board that the testimony of Dr. Shick was particularly impressive on the extent of respondent's rehabilitation. Dr. Shick concluded that respondent appeared to be one of the few drug abusers who has overcome his drug addiction without having slipped from time to time in his recovery.

The Administrator argues that respondent's drug use and conviction warrant discipline irrespective of whether it involved moral turpitude. The respondent argues that his conduct and conviction do not constitute moral turpitude under Rule 1 -- 102(a)(3), and that discipline is not warranted in light of respondent's efforts at rehabilitation.

We believe that this case is controlled by this court's decision in In re Scarnavack (1985), 108 Ill. 2d 456. In Scarnavack, the respondent, a former assistant State's Attorney of Cook County, was convicted in Federal court of the knowing possession of approximately one-half of a gram of a mixture containing cocaine. (Scarnavack, 108 Ill. 2d at 457.) The respondent testified that he obtained the cocaine from a client and that he had never possessed a controlled substance either before or since his arrest. The ...


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