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12/07/89 In Re Harvey Huntley Livingston

December 7, 1989

IN RE HARVEY HUNTLEY LIVINGSTON, PETITIONER


SUPREME COURT OF ILLINOIS

549 N.E.2d 342, 133 Ill. 2d 140, 139 Ill. Dec. 830 1989.IL.1901

Disciplinary proceeding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The petitioner, Harvey Huntley Livingston, has filed a petition for reinstatement as a member of the bar, to which he was admitted in 1952. On May 10, 1978, this court entered an order suspending the petitioner from the practice of law for a period of one year and until further order of this court. The misconduct found was that he had commingled clients' funds in his personal bank account and had converted the funds to his own use. It was also found he had failed to refund a fee to a client when under an obligation to do so.

In a proceeding to reinstate, the burden of proof is upon the petitioner to show rehabilitation by clear and convincing evidence. (In re Anglin (1988), 122 Ill. 2d 531, 537; In re Rothenberg (1985), 108 Ill. 2d 313, 323; In re Silvern (1982), 92 Ill. 2d 188, 193.) The hearing panel to which a petition for reinstatement to the bar is referred must determine whether the petitioner is rehabilitated, whether he is presently of good character and whether he is currently knowledgeable about the law. Our Rule 767(f) (107 Ill. 2d R. 767(f)) sets out factors that the Hearing Board of the Attorney Registration and Disciplinary Commission shall consider in determining a petitioner's rehabilitation, present good character and current knowledge of the law. The factors, along with any other factors the panel deems appropriate, are:

(1) the nature of the misconduct for which the petitioner was disciplined;

(2) the maturity and experience of the petitioner at the time discipline was imposed;

(3) whether the petitioner recognizes the nature and the seriousness of the misconduct;

(4) when applicable, whether petitioner has made restitution;

(5) the petitioner's conduct since discipline was imposed; and

(6) the petitioner's candor and forthrightness in presenting evidence in support of the petition. 107 Ill. 2d R. 767(f).

Although the order of suspension for one year was entered in 1978, the petitioner did not petition for reinstatement until 1987. The panel of the Hearing Board was not favorably impressed by the evidence presented by the petitioner at the hearing for reinstatement and granted the Administrator's motion for a directed finding. Its recommendation to the Review Board was that the petition be denied, but the Review Board Judged that the petitioner had made out a prima facie case for reinstatement and stated that it was reversing the directed finding of the hearing panel and remanding the matter to the Hearing Board for such evidence as the Administrator wished to present. The same panel considered the petition a second time and recommended again that it be denied. Parenthetically, we would note that the panel questioned the authority of the Review Board to reverse the panel's directed finding, stating that the ...


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