The opinion of the court was delivered by: Chief Justice Freeman
This case arises from an action filed by the Administrator of the Attorney Registration and Disciplinary Commission (Commission) against respondent, George C. Howard, Jr., pursuant to Supreme Court Rule 753(b) (166 Ill. 2d R. 753(b)). The five-count complaint charged respondent with making a misrepresentation concerning a past suspension in a petition to practice pro hac vice in another jurisdiction; neglecting a criminal appeal; engaging in the practice of law while under a prior suspension by this court; and failing to promptly refund unearned fees. With regard to some of these alleged acts, the complaint also charged respondent with conduct involving dishonesty, fraud, deceit or misrepresentation. A panel of the Hearing Board found the charges proven, with the exception of the allegations of dishonesty, and recommended that respondent be suspended from the practice of law for two years. The Review Board adopted the factual findings of the Hearing Board, but reduced the recommended suspension to a period of three months. On leave of this court, the Administrator has filed exceptions (166 Ill. 2d R. 753(e)), contending that in reducing the recommended sanction, the Review Board erroneously downplayed the gravity of respondent's current misconduct and prior disciplinary record.
Respondent was admitted to the Illinois bar in 1962, and has practiced predominantly in the specialty of criminal defense. His disciplinary problems in this state began on December 12, 1984, when the United States Court of Appeals for the Seventh Circuit found that he had neglected three criminal appeals and ordered his name stricken from its roll of practicing attorneys. Respondent was reinstated by the Seventh Circuit about five years later and permitted to resume practice effective January 1, 1990. In the meantime, in 1988, the Review Board issued a reprimand against respondent based upon his Seventh Circuit suspension and, in addition, his neglect of another criminal case. Then, on September 29, 1995, this court disciplined respondent for failing to communicate with clients; failing to refund unearned fees; converting funds; and neglecting two more criminal appeals. The behavior giving rise to the September 1995 discipline occurred between 1990 and late 1993. This court sanctioned respondent by suspending him from the practice of law for 24 months, but staying all of this period except the first five months, placing respondent on a period of probation subject to certain conditions. As a result, respondent was suspended from the practice of law from September 29, 1995, until February 28, 1996. In re George Howard, MR No. 11563 (September 29, 1995).
On June 11, 1997, the Administrator brought the complaint presently at issue. Count I charged respondent with knowingly failing to report his Seventh Circuit suspension in a petition to practice pro hac vice before the United States District Court for the District of Alaska. In proceedings before the Alaska court, Reshat Shabani had been convicted of conspiracy to distribute cocaine. He subsequently retained respondent to represent him in matters arising from the conviction. On June 5, 1991, respondent filed a verified petition to appear pro hac vice on Shabani's behalf in the Alaska court. In the petition, respondent averred that he had "not been suspended for misconduct or any other causes," failing to disclose his Seventh Circuit suspension of December 1984. Thus, count I charged respondent with making a false statement of fact to a tribunal, in violation of Rule 3.3(a)(1) of the Rules of Professional Conduct *fn1 ; offering false evidence, in violation of Rule 3.3(a)(4); making a false statement in connection with an application for admission to the bar, in violation of Rule 8.1(a); engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4); and engaging in conduct prejudicial to the administration of Justice in violation of Rule 8.4(a)(5), or conduct tending to defeat the administration of Justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 771 (134 Ill. 2d R. 771).
In count II, the Administrator alleged that respondent had neglected Shabani's case by failing to file an appellate brief and failing to return a $25,000 unearned fee Shabani had advanced to him for that case. Thus, count II charged respondent with failing to act with reasonable diligence in representing a client, in violation of Rule 1.3; failing to make reasonable efforts to expedite litigation consistent with the client's interest, in violation of Rule 3.2; failing to promptly refund unearned fees on withdrawal from the case, in violation of Rule 1.16(e); and conduct prejudicial to the administration of Justice in violation of Rule 8.4(a)(5) and Supreme Court Rule 771 (134 Ill. 2d R. 771).
In counts III through V, the Administrator alleged that during the period of respondent's suspension from September 29, 1995, to February 28, 1996, he engaged in the unauthorized practice of law by accepting fees from and providing legal advice to three criminal defendants, Clarence Williams, Ralph Williams, and Raymond Olivarez. The complaint further alleged that throughout his consultations with each of these defendants, respondent failed to disclose that he was under suspension. Counts III through V accordingly charged respondent with practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction in violation of Rule 5.5(a); and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4), and conduct prejudicial to the administration of Justice in violation of Rule 8.4(a)(5) and Supreme Court Rule 771 (134 Ill. 2d R. 771).
HEARING BOARD PROCEEDINGS
Counts I & II: The Shabani Case
With regard to the pro hac vice petition, the Hearing Board found clear and convincing evidence that respondent had made a false statement in failing to disclose his suspension and that he had engaged in conduct prejudicial to the administration of Justice. However, the Board found insufficient evidence that the misstatement was either knowing or intentional or that respondent engaged in conduct involving dishonesty, fraud or deceit.
Respondent admitted that at the time he executed the pro hac vice petition, he was cognizant of his recent suspension and that the Alaska court required its disclosure. However, the petition was prepared by his local counsel and presented to him along with other documents for signature. Respondent testified that, in the haste of reviewing and signing documents, he had neglected to read the petition, but that if someone had called the misstatement to his attention, he would have acknowledged the suspension. The Board considered it mitigating that the misstatement involved a prior suspension rather than a present one, as, at the time respondent filed the petition, he had been reinstated in the Seventh Circuit for 18 months. The Board also accepted respondent's testimony that, in any event, the suspension would not have hindered his admission to appear before the Alaska court: the suspension barred his practice only within the Seventh Circuit, and, at the time he signed the pro hac vice petition, he was a member in good standing of the Ninth Circuit Court of Appeals, which encompassed the district court of Alaska. Further, according to respondent, he had been admitted to practice in the Ninth Circuit subsequent to his suspension from the Seventh Circuit, and also had appeared pro hac vice before the district court of Alaska on other matters several times between the years of 1971 and 1991.
As to count II, the Board found clear and convincing evidence that respondent had neglected Shabani's appeal and failed to promptly return unearned fees upon his withdrawal from Shabani's case. When Shabani retained respondent in May of 1991, Shabani's brother, Nick, advanced respondent a $25,000 retainer on Shabani's behalf. Respondent initially pursued post-trial relief in Shabani's case, and when that proved unsuccessful, filed an appeal before the Ninth Circuit. However, he then failed to file an opening brief by the September 16, 1991, due date. On February 11, 1992, the Ninth Circuit issued an order to show cause why respondent should not be sanctioned for his failure to file the brief and mandating that the brief be filed within 11 days in order to avoid dismissal of the appeal. Replying to the order, respondent explained that he had been "constantly on trial" since filing the appeal and had delegated responsibility for all of his appeals to "other personnel" in his office. Respondent stated that he had not learned until February 10, 1992, that the brief was never filed. Attorney Elreta Dickinson testified that respondent had given her responsibility for his appeals during this time period, but could not recall specifically being delegated the Shabani case. Dickinson testified that respondent was upset when he learned the brief had not been done and that he temporarily ceased assigning her appeals as a result of this occurrence. At the end of February or early March 1992, respondent withdrew from Shabani's appeal, and Alan M. Caplan was substituted as Shabani's counsel. Caplan completed Shabani's appeal, securing a reversal of his conviction by the Ninth Circuit (United States v. Shabani, 993 F.2d 1419 (9th Cir. 1993)), although the conviction was later reinstated by the United States Supreme Court (United States v. Shabani, 513 U.S. 10, 130 L. Ed. 2d 225, 115 S. Ct. 382 (1994)).
In February 1992, when he was substituted as counsel in Shabani's case, Caplan wrote a letter to respondent requesting a return of the $25,000 retainer. When the refund was not forthcoming, Caplan sent three more demand letters to respondent on March 19, 1992, April 15, 1992, and June 2, 1992, on behalf of Nick and Reshat Shabani, again to no avail. Over one year later on October 1, 1993, respondent entered into a written agreement with Nick under which respondent promised to repay $20,000 of the funds. The agreement stated that Nick had advanced $25,000 to respondent to represent his brother "in certain post-trial proceedings." The agreement noted that with regard to the post-trial matters, respondent had made two trips to Alaska, but had then failed to prepare an appellate brief. Accordingly, respondent promised to return $20,000 of the original amount, with $5,000 due at execution of the agreement, and the $15,000 balance by December 1, 1993. The Hearing Board observed that as of the November 20, 1997, hearing before it, $5,000 was still unpaid.
Counts III through V: Practicing Law While Under Suspension
The Hearing Board concluded that respondent had engaged in the unauthorized practice of law under Rule 5.5(a), and committed acts prejudicial to the administration of Justice under Rule 8.4(a)(5) and Supreme Court Rule 771, by giving legal advice for consideration to Clarence Williams, Ralph Williams, and Raymond Olivarez, while under suspension by this court. However, the Board disbelieved testimony on behalf of the three defendants that respondent had never informed them that he was under suspension. Accordingly, the Board found insufficient proof to support the charge that respondent had engaged in conduct involving dishonesty, fraud or misrepresentation with regard to the three defendants.
The Board consolidated its findings on counts III, IV and V, noting that there was similar proof as to each charge. The Board first concluded that, by respondent's own admission, he had consulted with each of the three defendants while under suspension and engaged in "Discussions which required legal knowledge and skill." Respondent had also accepted legal fees from these individuals and deposited them into his personal account. However, the Board also recognized respondent's position that he had consulted with these individuals out of a sense of responsibility to his firm and a need to ensure that matters were handled correctly during his suspension. Thus, the Board concluded that, "[w]hether intentionally or not," respondent engaged in the practice of law during his suspension.
At the hearing, Clarence Williams testified that he contacted respondent in late November 1995. Respondent met briefly with him at the Cook County jail, took notes about his case, and told him that he would be filing a motion to suppress in his case, based upon an unlawful police search. Respondent also took a retainer fee on Clarence's behalf and promised to appear at a December 19, 1995, court date. Although respondent eventually refunded the fee, he neither filed the motion nor appeared at the December hearing. Clarence retained a public defender and pled guilty to the charge against him, receiving a six-year sentence.
Ralph Williams was taken into custody in December 1995 on charges of robbery and armed robbery. His mother Dorothy contacted respondent on Ralph's behalf, and respondent agreed to "take care of" the matter, accepting a retainer fee from Dorothy. Ralph testified that respondent met with him in jail in January or early February 1996 and discussed the charges ...