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12/01/94 FRANCIS M. DISCIPIO ATTORNEY RESPONDENT.

December 1, 1994

IN RE FRANCIS M. DISCIPIO, ATTORNEY, RESPONDENT.


Justice McMORROW delivered the opinion of the court: Chief Justice Bilandic and Justice Freeman took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

In this attorney discipline case, respondent, Francis M. Discipio, concedes that he violated the Code of Professional Responsibility (the Code) when he improperly divided his legal fees with Jerome Ruther, a disbarred attorney. However, respondent disputes whether he aided Ruther in the unauthorized practiceof law when he permitted Ruther to gather preliminary factual information from workers' compensation clients and obtain the clients' signatures to pertinent documents. We conclude that respondent's actions aided Ruther in the unauthorized practice of law. For respondent's violations of the Code, we suspend respondent's license to practice law for a period of two years.

I

Respondent, Francis Discipio, has been licensed to practice law in this State since 1948. Most of his practice has been devoted to representing clients in workers' compensation claims. From 1957 to 1973, respondent had a working arrangement with Jerome Ruther, also then a licensed Illinois attorney, whereby Ruther referred workers' compensation clients to respondent. In exchange for these referrals, respondent divided his legal fees with Ruther. Approximately 50% to 60% of the fee was retained by respondent, and the remainder was paid to Ruther. In addition to the referral, Ruther provided respondent with facts and information relating to the case. When a case was filed with the Industrial Commission, both respondent and Ruther were specified as attorneys of record for the claimant.

In October 1971, Ruther was indicted in the United States District Court for the Northern District of Illinois. (United States v. Ruther (N.D. Ill. 1981), 71-CR-992.) He was charged with having filed fictitious and fraudulent claims against an insurance company. Ruther pled guilty to one count of mail fraud, and in April 1972, he was sentenced to six months and one day in Federal prison. He served approximately two months of the sentence and was paroled for the remainder of his term. In January 1973, Ruther was disbarred by order of this court, on his motion that his name be stricken from the roll of attorneys.

Respondent learned of Ruther's disbarment shortlyafter its announcement in 1973. Respondent was also aware that the Federal conviction was the basis for Ruther's disbarment. Respondent never made inquiries of Ruther about his Federal conviction or his disbarment.

The arrangement between Ruther and respondent to refer workers' compensation claims in exchange for a portion of the fee continued notwithstanding Ruther's disbarment. Ruther continued to gather preliminary information from the client and forward this information to respondent. Ruther also had the client sign various documents which were sent to respondent. Respondent would then meet with and consult the client, complete the necessary forms and documents, and pursue the matter to completion. After Ruther's disbarment, respondent was specified as the only attorney of record for the claimant in suits filed before the Industrial Commission. When clients indicated that they believed Ruther was an attorney, respondent advised that he was not an attorney. Respondent also advised the clients not to pay Ruther because respondent would pay Ruther for his services. However, respondent did not inform the clients how much he would pay Ruther.

Ruther continued to refer clients to respondent until 1986. From 1973 to 1986, respondent's firm received approximately 200 referrals from Ruther, and paid Ruther approximately $170,000 in fees. Respondent always submitted 1099 tax forms to the Internal Revenue Service to report the monies he had paid to Ruther. Although respondent knew that Ruther had tried but failed to gain reinstatement to the practice of law on three occasions between 1976 and 1986, respondent did not ask Ruther why the efforts had been unsuccessful.

The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against respondent alleging that his arrangement with Ruther amounted to: (1) conduct prejudicial to the administrationof Justice in violation of Rule 1-102(a)(5) of the Code (107 Ill. 2d R. 1-102(a)(5)); (2) aiding the unauthorized practice of law in violation of Rule 3-101(a) of the Code (107 Ill. 2d R. 3-101(a)); (3) sharing legal fees with a nonlawyer in violation of Rule 3-102(a) of the Code (107 Ill. 2d R. 3-102(a)); and (4) conduct which tends to defeat the administration of Justice and brings the courts or legal profession into disrepute in violation of Supreme Court Rule 771 (107 Ill. 2d R. 771).

In his own defense, respondent testified that he served in the Air Corps from 1942 to 1945. He graduated from DePaul Law School and received his law license in 1948. After several years' employment with Travelers Insurance Company, respondent started his own practice, concentrating on workers' compensation claims. In his years of practice, respondent has been active in several bar associations. He has made numerous contributions over the years to several charitable organizations and has raised a family. Respondent testified that he had a previously untarnished and unblemished legal career. He cooperated fully with the Administrator's investigation of this case.

Respondent also offered the stipulated testimony of August M. Mangoni, a licensed attorney professionally and personally acquainted with respondent. Mangoni stated that respondent has a reputation as a competent, ethical and conscientious attorney and that he has an excellent reputation for honesty, trustworthiness and integrity in the legal community in which he practices. Mangoni's opinion of respondent was in no way diminished by his knowledge of the contents of the Administrator's complaint against the respondent. The same representations were made in the stipulated testimony of Ralph W. Miller, Jr., who has held numerous legal positions, including that of Commissioner of the Illinois Industrial Commission from 1981 to 1986. Miller statedthat respondent "demonstrate[d] only the highest standards of ethical advocacy and professional behavior." To the same effect was the stipulated testimony of Richard H. Williams, a licensed attorney of long-standing professional acquaintance with the respondent.

Following an evidentiary hearing on the Administrator's charges against the respondent, the Hearing Board determined that the Administrator had proven that respondent's working arrangement with Ruther amounted to improper fee-splitting with a nonlawyer in violation of Rule 3-102(a) of the Code, and also determined that respondent's conduct brought the legal profession into disrepute in violation of Rule 771. The Hearing Board concluded that the Administrator had failed to prove by clear and convincing evidence that respondent had aided Ruther in the unauthorized practice of law. The Board did not make a finding with respect to whether respondent's actions violated Rule 1-102(a)(5) regarding conduct that tends to defeat the administration of Justice. Considering the evidence in mitigation, the Hearing Board recommended that respondent be censured. The Review Board sustained the findings of the Hearing Board and also recommended the disciplinary sanction of censure.

The Administrator takes exception to two aspects of the recommendations of the Hearing and Review Boards. First the Administrator argues that the evidence demonstrated that the respondent aided Ruther in the unauthorized practice of law. Second, the Administrator contends that the ...


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