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August 4, 1994


Miller, McMORROW, Freeman

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

The respondent, Michele Elaine Chandler, was admitted to the Illinois bar on April 26, 1988. On March 8, 1991, the Administrator of the Attorney Registration and Disciplinary Commission filed a five-count complaint against respondent. Counts I through IV of the complaint charged respondent with falsifying information regarding her income, employment history, and social security number on a residential loan application, and with preparing and submitting false documents in connection with the loan application, in violation of Rule 1-102(a)(4) of the Illinois Code of Professional Responsibility (Code) (107 Ill. 2d R. 1-102(a)(4)) and of Supreme Court Rule 771 (107 Ill. 2d R. 771). Count V charged respondent with providing false information concerning her social security number and name at birth on her application for admission to the bar of this State, in violation of Rules 1-101 and 1-102(a)(4) of the Code (107 Ill. 2d Rules 1-101, 1-102(a)(4)) and of Supreme Court Rule 771 (107 Ill. 2d R. 771). Both the Hearing Board and the Review Board found that respondent had committed substantially all the misconduct alleged by the Administrator, and both boards recommended that respondent be suspended from the practice of law for a six-month period. The Administrator has filed exceptions with this court pursuant to Supreme Court Rule 753(e) (134 Ill. 2d R. 753(e)), seeking imposition of a more severe sanction.

In her answer to the complaint, respondent admitted essentially all of the Administrator's allegations, and the facts in this case are not in dispute. The parties presented testimony and documentary exhibits before the Hearing Board on November 5, 1991. Respondent didnot testify on that occasion, but a sworn statement she had previously made and her testimony before the Inquiry Board were both introduced into evidence at that time. In addition, the parties stipulated to certain other evidence.

The evidence in this case shows that in August 1987, respondent submitted a mortgage loan application to Mid-America Mortgage Company for the purchase of a house in Chicago. Respondent was seeking a loan of $84,550 and was prepared to make a down payment of $5,000. On the application, respondent stated that her gross monthly income was $4,000 and that she had been employed as an attorney by another lawyer, Nathaniel Howse, for more than five years. Sometime between August and October 1987, respondent prepared and submitted to Mid-America W-2 withholding statements and Federal and State income tax returns representing that she had earned $42,000 in 1985 and $46,000 in 1986 and that the source of her income for each year was her employment with Howse.

The employment history described by respondent on her loan application and the supporting documentation she submitted to the lender were false, however. Through a stipulation entered into by the parties, Howse explained that the W-2 withholding statements in question had not been prepared by his office and were not accurate. Howse stated that he did not employ respondent at all in 1985 and that he employed her for only a short time in 1986; Howse said that he paid respondent in cash, and he was unable to recall the amount of her compensation. Respondent, in her own testimony before the Inquiry Board, stated that she did some work for Howse from late in 1986 until October 1987, and that she earned about $1,000 for this work.

Respondent also submitted to Mid-America an employment verification form bearing the purportedsignature of Howse. The form stated that respondent was currently employed by Howse, that she earned $46,000 in 1986 from that employment, and that her base pay was $48,000 in 1987. By stipulation, Howse stated that the signature was not authentic and that the verification form did not reflect respondent's employment history. An application for commitment for title insurance submitted by respondent to Mid-America incorporated the same false information regarding respondent's employment and income.

Respondent's loan application also contained an incorrect social security number. Respondent attributed this discrepancy to a clerical error by the lender. Respondent used a different social security number on other documents she prepared in connection with the loan application.

Respondent's loan was subsequently approved, and she took possession of the property on October 28, 1987. On the same day, Mid-America discovered respondent's fraud. Soon after that, an officer of Mid-America told respondent of the lender's intention to exercise its option to declare the full amount of the loan immediately due and payable, though the lender was also willing to refinance the loan if respondent provided a larger down payment. When respondent was unable to tender a satisfactory sum, Mid-America instituted foreclosure proceedings. Judgment in the foreclosure action was entered against respondent on September 6, 1988. The record contains no evidence of the extent of the loss, if any, incurred by Mid-America as a consequence of respondent's actions.

The Administrator's complaint also charged respondent with making false statements on her bar application concerning her name at birth and her social security number. On the application, respondent stated that her name at birth was Michele Elaine Chandler. Thename actually appearing on respondent's birth certificate, however, was Michele Elaine Dickerson. By stipulation, respondent explained that she had never used her father's name, Dickerson, and had instead used her mother's maiden name, Chandler, from the time of her birth.

Respondent also gave an incorrect social security number on her bar application. After inquiry by the Committee on Character and Fitness, she amended her application and provided a different number. Before the Inquiry Board, respondent explained that she had lost track of her original social security number sometime in the 1970s, had reapplied for the number, and had then been issued another number. Respondent used the latter number on the loan application and her original number on the bar application.

In mitigation, the respondent offered evidence of her disadvantaged background. Respondent was born in 1955 and grew up on the west side of Chicago. She had her first child when she was 14 years old. Respondent married in 1971, at the age of 15, and began working to support her family. She had a second child soon after that. Respondent and her husband were separated in 1974 and divorced in 1981. Respondent enrolled at the University of Illinois in Chicago in 1977 and received her bachelor's degree, with honors, in 1980.

Respondent then entered law school at New York University, and she was graduated in 1983. She received her license to practice law in New York the following year. Upon her graduation, respondent worked first as a law clerk for the United States Court of Appeals for the Second Circuit, and later as an attorney for a law firm in New York. She also did work for the National Council of Black Lawyers. There is some dispute in the record concerning the circumstances under which respondent left her employment with the appeals court. In answerto an inquiry by the Committee on Character and Fitness, a supervisor there stated that respondent was asked to resign; respondent maintained that she left the position voluntarily. *fn1

"While employed under my supervision as a law clerk for the Court of Appeals for the Second Circuit, Ms. Chandler was asked to resign because she had become actively involved with a team of defense attorneys representing certain defendants then in federal custody. According to prison records and information conveyed to me by a deputy warden Ms. Chandler visited these defendants several times while they were incarcerated in the Metropolitan Correctional Center. She gained access to the prison by claiming to be an attorney for one or more of these defendants. These visits occurred during working hours and without my knowledge or permission. In addition, I was informed by both an assistant United States attorney and a federal magistrate that Ms. Chandler had appeared before the magistrate on behalf of one or more of these defendants, also without my knowledge or permission and also during working hours. Moreover, Ms. Chandler failed to disclose to the prison officials, the AUSAs assigned to the case or to the magistrate that she was a Second Circuit law clerk. Ms. Chandler's activities violated the code of conduct applicable to law clerks employed by the federal courts and demonstrated her lack of candor and integrity.

Finally, during this time Ms. Chandler was unable to devote her attention to her duties as a law clerk. As a result, her assignments were not completed in a timely fashion or were poorly performed.

In sum, Ms. Chandler's conduct while in the Court's employ demonstrated that she was not worthy of the trust and confidence placed in her by the Court."

Respondent returned to Chicago in 1986, and shepassed the Illinois bar examination given in February 1987. Respondent initially worked as an attorney for the American Civil Liberties Union; at the time of the hearing, she was employed as an assistant public defender in Cook County. Respondent was admitted to the Illinois bar in April 1988.

Before the Hearing Board, respondent presented favorable testimony from four character witnesses. Weyman Edwards, assistant dean of students at the University of Illinois in Chicago, stated that respondent tutored minority students while she was an undergraduate and that her academic integrity was beyond reproach. Edwards also testified that, prior to the hearing, he was not aware that respondent had submitted false tax documents in support of her mortgage application.

Respondent's uncle, Thomas Chandler, a tactical sergeant with the Chicago police department, also testified in respondent's behalf at the hearing. He stated that respondent has a good reputation for honesty and integrity, has been involved in community service, is a role model for members of her family and for persons in the community, and has expressed remorse for her misconduct.

Two Judges of the circuit court of Cook County, Shelvin Singer and Preston Bowie, also testified in respondent's behalf at the hearing. Appearing pursuant to subpoenas issued by respondent, the witnesses stated that respondent, who had practiced in their courtrooms as an assistant public defender, was an able attorney and enjoyed a good reputation for honesty and integrity. Judge Singer described respondent as "the best all around public defender who has been in my courtroom." Prior to the hearing, neither witness was aware that respondent had submitted false tax documents to the mortgage lender.

As further evidence in mitigation, respondent introduced evaluation forms prepared by her supervisor in March and September 1991 concerning her work as an assistant public defender. The evaluations ranged from "Adequate" to "Very Good," and her ethics and integrity were rated as "Outstanding" on both forms.

The Hearing Board filed its report and recommendation on February 10, 1992. The Board found that respondent's preparation and submission of false documents with respect to the mortgage application were intentional and were designed to deceive the mortgage lender into making the loan. The Hearing Board also found that respondent, on her bar application, made materially false statements concerning her social security number and name at birth. In mitigation, the Hearing Board noted that respondent had a good reputation for honesty and integrity in the community and was well regarded as an assistant public defender. The Hearing Board recommended that respondent be suspended from the practice of law for a period of six months.

The Hearing Board had earlier refused to allow the Administrator either to amend the original complaint against respondent or to file an additional one. The Administrator had sought to bring further charges against respondent involving her failure to reveal to the Committee on Character and Fitness both the foreclosure action and her misconduct in obtaining the loan. In its order, the Hearing Board made no findings regarding these additional allegations against respondent.

The Administrator filed exceptions to the HearingBoard's report, and the matter was submitted to the Review Board on July 10, 1992. The parties specifically agreed that the Review Board, in determining a recommended sanction, could consider the Administrator's additional allegations of wrongdoing by respondent.

The Review Board filed its report and recommendation on May 14, 1993. The Review Board affirmed the factual findings of the Hearing Board, though the Review Board did not find significant respondent's failure to disclose on her bar application her correct name at birth. Despite the parties' agreement, the Review Board, in formulating a recommended sanction, declined to consider the respondent's failure to apprise the Committee on Character and Fitness of the foreclosure action or her misconduct in obtaining the loan. Like the Hearing Board, the Review Board recommended a six-month suspension. The Review Board concluded alternatively that even if the additional violations had been considered, it would not have recommended any greater sanction, for the same type of misconduct had been proved under the original complaint.

At the outset, we agree with the Review Board that respondent's failure on her bar application to accurately state the surname she received at birth was not significant under the evidence presented here. The evidence shows that respondent had never lived with her father, Dickerson, and had used her mother's maiden name, Chandler, since birth. On this record, we conclude that respondent's omission of her father's surname from the bar application was not material.

We do not agree, however, with the Review Board's Conclusion that the present disciplinary proceeding may not take account of the additional misconduct committed by respondent in failing to update her bar application with information about the foreclosure action and the circumstances under which she obtained her loan. Althoughthe parties expressly agreed that the Review Board should consider respondent's further misconduct when imposing discipline, the Review Board declined to do so, believing that the additional charges were not properly before it. The Review Board noted that the Hearing Board did not take evidence of those charges, that respondent did not formally admit the allegations, and that respondent successfully moved for dismissal of the Administrator's second complaint, which charged respondent with the additional misconduct. The Review Board also concluded that the present record lacked sufficient evidence regarding respondent's state of mind when she failed to disclose to the committee the pendency of the foreclosure action and the misrepresentations on her loan application.

We share, of course, the Review Board's concern that attorneys receive notice of the charges against them in disciplinary proceedings and have an opportunity to defend against those charges. Generally, an attorney may not be disciplined for instances of uncharged misconduct; to do so would violate the respondent's right to procedural due process and our own notions of candor and fairness. ( In re Doyle (1991), 144 Ill. 2d 451, 470-71, 163 Ill. Dec. 515, 581 N.E.2d 669; see also In re Ruffalo (1968), 390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222.) To that end, Supreme Court Rule 753(b) provides that a complaint in a disciplinary matter "shall reasonably inform the attorney of the acts of misconduct he is alleged to have committed." (134 Ill. 2d R. 753(b).) In the present case, however, respondent has admitted that she had both notice of the additional charges and an opportunity to defend against them, and the parties have agreed that these further instances of misconduct may be considered in the imposition of a disciplinary sanction.

The additional charges are directly related to the allegations in the initial complaint concerning respondent'smortgage loan application and bar application. Respondent submitted her bar application to the State Board of Law Examiners on November 28, 1986. The application was still pending before the Committee on Character and Fitness when, during the period from August to October 1987, respondent was providing the mortgage lender with false information regarding her income and employment history. One of Mid-America's officers confronted respondent with this fraud in November 1987, and respondent was served with summons in the foreclosure action no later than March 27, 1988. Not until April 11, 1988, did an inquiry panel of the committee recommend respondent's certification, and she was admitted to the Illinois bar on April 26, 1988.

The bar application required respondent to "immediately disclose to the Character and Fitness Committee circumstances and events occurring after the date of the submission of [the application] which may have any substantive bearing on Applicant's character and fitness." Thus, respondent was under a continuing duty to provide the committee with further relevant information as it became available. Although respondent was in contact with the committee in January 1988 and again early in April 1988 because of other inquiries relating to her fitness, at no time did she report to the committee either her misconduct in connection with the loan application or the ensuing foreclosure action. *fn2 As we have stated, the parties agree that these additional actsof misconduct may be considered in the imposition of a sanction.

We must now determine the appropriate sanction in this case. Attorney disciplinary proceedings are intended to safeguard the public, maintain the integrity of the legal profession, and protect the administration of Justice from reproach. ( In re Lenz (1985), 108 Ill. 2d 445, 450-51, 92 Ill. Dec. 238, 484 N.E.2d 1093; In re Lamberis (1982), 93 Ill. 2d 222, 227, 66 Ill. Dec. 623, 443 N.E.2d 549.) Predictability and fairness require consistency in the sanctions imposed for similar acts of misconduct ( In re Timpone (1993), 157 Ill. 2d 178, 197, 191 Ill. Dec. 55, 623 N.E.2d 300; In re Saladino (1978), 71 Ill. 2d 263, 275, 16 Ill. Dec. 471, 375 N.E.2d 102), although each case must necessarily be resolved on the facts and circumstances peculiar to it ( In re Joyce (1989), 133 Ill. 2d 16, 31, 139 Ill. Dec. 720, 549 N.E.2d 232; In re Ushijima (1987), 119 Ill. 2d 51, 57, 115 Ill. Dec. 548, 518 N.E.2d 73). The Administrator argues that respondent's misconduct warrants disbarment or, failing that, a lengthy suspension from the practice of law. Respondent contends that the six-month suspension recommended by both the Review Board and the Hearing Board is appropriate. Although we give deferenceto the sanctions recommended by the Review and Hearing Boards, their recommendations are only advisory ...

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