Chief Justice Heiple delivered the opinion of the court. Justices Bilandic and McMORROW took no part in the consideration or decision of this case. Justice Freeman, concurring in part and dissenting in part.
The opinion of the court was delivered by: Heiple
CHIEF JUSTICE HEIPLE delivered the opinion of the court:
The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint with the Hearing Board charging respondent, Richard Anthony Rinella, with four counts of professional misconduct for engaging in sexual relations with clients and testifying falsely before the Commission. The Hearing Board found that respondent had committed the misconduct charged in each of the counts and recommended that respondent be suspended from the practice of law for a period of three years and until further order of this court. The Review Board approved the findings and recommendation of the Hearing Board, except that it recommended that respondent's suspension expire automatically at the end of three years. We granted respondent's petition for leave to file exceptions. For the reasons that follow, we approve in part and reject in part the recommendation of the Review Board, and approve the recommendation of the Hearing Board. Respondent is suspended from the practice of law for three years and until further order of this court.
FACTUAL AND PROCEDURAL HISTORY
I. The Complaint and Answer
Count I of the Administrator's complaint alleged that in July of 1983 Jane Doe *fn1 retained respondent to represent her in a dissolution of marriage proceeding and paid respondent a fee of $7,500. The complaint alleged that respondent and Doe had a sexual relationship that began in approximately July of 1983 and continued throughout the duration of respondent's representation of her. The complaint alleged that the relationship was initiated by respondent when he made sexual advances to Doe during her second visit to his office, and that Doe submitted to respondent's advances because she was afraid that refusing to do so would adversely affect respondent's representation of her and because she could not afford to hire another lawyer after paying respondent his retainer. The complaint charged that by engaging in the conduct alleged in count I, respondent had committed overreaching and violated Rules 1-102(a)(5), 5-101(a), 5-102(a), and 5-107(a) of the Code of Professional Responsibility (87 Ill. 2d Rs. 1-102(a)(5), 5-101(a), 5-102(a), 5-107(a)) and Supreme Court Rule 771 (94 Ill. 2d R. 771).
Count II of the complaint alleged that in March of 1991 and March of 1993, while testifying under oath before the Commission, respondent falsely stated that he had never had sexual relations with Jane Doe, that he had not had sex with her at her house, and that he had never had nude photographs taken of himself at her house. Count II further alleged that in June of 1993, while again testifying before the Commission, respondent retracted these denials after he was shown a nude picture of himself which he admitted was taken at Doe's house. Count II charged that respondent's March 1991 and March 1993 testimony violated Rules 8.1(a)(1), 8.4(a)(3), 8.4(a)(4), and 8.4(a)(5) of the Rules of Professional Conduct (134 Ill. 2d Rs. 8.1(a)(1), 8.4(a)(3), (a)(4), (a)(5)) and Supreme Court Rule 771 (134 Ill. 2d R. 771).
Count III of the complaint alleged that in November of 1983, Jeanne Metzger retained respondent to represent her in a dissolution of marriage proceeding and paid him a retainer of $2,500. The complaint alleged that on Saturday, December 10, 1983, respondent scheduled an appointment with Metzger at his office to discuss her case, and that after Metzger arrived and entered his office, respondent barred the door with a chair and initiated sexual activity with her. The complaint alleged that Metzger submitted to respondent's sexual advances because she believed that the quality of respondent's representation of her would be adversely affected if she refused. The complaint further alleged that respondent engaged in sexual activity with Metzger on two other occasions thereafter, including once on January 11, 1984, at which time respondent asked Metzger to supply him with nude pictures of her. The complaint also alleged that during a court appearance on February 8, 1984, to which respondent had asked Metzger to bring an instant camera, respondent instructed Metzger to answer all of his questions relating to her divorce in the affirmative, regardless of how she wished to respond. The complaint charged that by engaging in the conduct alleged in count III, respondent committed overreaching and violated Rules 1-102(a)(5), 5-101(a), 5-102(a), 5-107(a), and 7-101(a)(3) of the Code of Professional Responsibility (87 Ill. 2d Rs. 1-102(a)(5), 5-101(a), 5-102(a), 5-107(a), 7-101(a)(3)) and Supreme Court Rule 771 (94 Ill. 2d R. 771).
Count IV alleged that Sandra Demos retained respondent's law firm in 1980 to represent her in a dissolution of marriage proceeding. The complaint alleged that although respondent did not have primary responsibility for Demos' case, he would call her frequently to ask her to meet him socially, and during these telephone calls would discuss with her items of a personal nature that he could only have learned from reviewing her file. The complaint alleged that on one occasion around 1982, respondent made sexual advances to Demos and engaged in sexual relations with her in his automobile, after which he immediately took her to a motel room where he attempted to have sexual intercourse with her. The complaint further alleged that Demos submitted to respondent's sexual advances because she believed that refusing to do so would adversely affect his firm's representation of her. The complaint charged that by engaging in the conduct alleged in count IV, respondent committed overreaching and violated Rules 4-101(b)(3), 5-101(a), and 5-102(a) of the Code of Professional Responsibility (87 Ill. 2d Rs. 4-101(b)(3), 5-101(a), 5-102(a)) and Supreme Court Rule 771 (87 Ill. 2d R. 771).
In his answer to the complaint, respondent denied the specific instances of sexual encounters with Doe and denied having engaged in any sexual relations with Metzger or Demos. As to the allegations of perjury, respondent admitted that his testimony before the Commission was untrue, but maintained that his answers were justified because any sexual activity with Doe occurred after his representation of her had ceased and was therefore not a proper subject of the Commission's inquiry. Respondent also filed a motion to dismiss the complaint based primarily on the ground that no disciplinary rule specifically forbids sexual relations between an attorney and his client. The Commission denied this motion and set the matter for hearing.
Before the Hearing Board, Jane Doe testified that during her second visit to respondent's office in July 1983, respondent came over to the sofa she was sitting on and began fondling her. She testified that she began crying and that respondent told her to stop crying. She testified that she then performed fellatio on respondent. She also testified that during the sexual activity, respondent said "it would make it easier." She testified that she did not want to engage in sexual activity with respondent but felt she had to because she had just changed lawyers and paid respondent a large retainer.
Doe further testified that one day in the spring of 1984, she and respondent were undressed and engaging in fellatio in her bedroom at her house when her ex-husband, John Doe, walked into the room. Jane Doe testified that she put on a robe and followed John Doe downstairs while respondent hid in a closet. She testified that John Doe then asked where the couple's five-year-old son was, and she responded that he was at a friend's house. She testified that John Doe periodically refers to this incident when she requests timely maintenance or child support payments from him.
John Doe testified before the Hearing Board that the incident in the bedroom at his wife's house occurred a few weeks before the entry of a supplemental judgment resolved issues of property distribution, maintenance, and child support in the Does' dissolution of marriage proceeding.
Also before the Hearing Board, Jane Doe identified two exhibits as photographs of respondent in the nude taken at her house in the spring of 1984. She said the photographs showed wallpaper in her house which she had removed in the fall of 1984.
Jane Doe admitted that she attended a holiday luncheon sponsored by respondent's law firm in 1987 or 1988, and that she sent respondent a humorous postcard in January 1986 which she signed "Lustfully Yours."
Respondent testified before the Hearing Board that while he had engaged in sexual activity with Jane Doe, this activity took place in late 1986, or in 1987 or 1988, after he had stopped representing her. He denied having sex with Jane Doe in his office in July 1983, and denied having sex with her in her house at any time. He testified that he went to Jane Doe's house on a few occasions during his representation of her, and that John Doe came to the house on one of those occasions, but said that he and Jane Doe were standing in an upstairs hallway fully clothed when John Doe encountered them. Respondent also testified that the photographs of him in the nude were taken on an occasion when he and Jane Doe engaged in sexual activity in late 1986, or in 1987 or 1988. Respondent admitted that in prior testimony before the Commission he falsely denied ever having had sex with Jane Doe and having had nude pictures taken, but he stated that he believed these answers were justified because his sexual relationship with Doe occurred after he stopped representing her.
Jeanne Metzger testified that she retained respondent in November 1983, and that on a Saturday in December 1983, she had an appointment at respondent's office to discuss her case. She testified that when she entered respondent's office, respondent closed the door behind her and propped a chair up against the doorknob. She testified that respondent then came towards her, unzipped his pants, and sat down on the couch beside her. She testified that respondent then put his hand on her head, had her lean towards him, and pushed her head down while stating "You don't have to do this if you don't want to." Metzger testified that she then performed fellatio on respondent. She testified that while she did not want to do so, she felt she had to for the welfare of her children, whose custody was contested.
Metzger further testified that respondent scheduled another appointment with her for December 14, 1983, at his office, and that when she arrived, respondent told her to go downstairs and wait on the sidewalk outside the building. She testified that respondent then joined her outside and took her by taxi to an apartment in a high-rise building. She testified that after entering the apartment, respondent undressed and sniffed a bottle of liquid, and then asked her to do the same. She testified that she sniffed the bottle and got an "extreme high," and that the two then had sex. Metzger further testified that on January 11, 1984, after a deposition in her case, respondent again took her to the apartment and asked her to sniff the bottle of liquid, and that the two then had sex again. She testified that on this occasion, respondent told her to make an appointment to get a "tummy tuck," and that he gave her the name of the doctor with whom she ...