The opinion of the court was delivered by: Justice Garman
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 The Administrator of the Attorney Registration and Disciplinary Commission (Commission) filed a three-count complaint against respondent, Robert C. Thomas, charging him with misrepresentation to a tribunal and two counts of unauthorized practice of law. The Hearing Board found that the Administrator had proven misconduct and recommended respondent be suspended from the practice of law for two years. Respondent timely filed exceptions with the Review Board, which recommended dismissal of the charges. The Administrator filed a petition for leave to file exceptions with this court, pursuant to Supreme Court Rule 753(e)(1) (Ill. S. Ct. R. 753(e)(1) (eff. Dec. 1, 1995)), which we allowed.
¶ 3 Respondent was admitted to practice in Illinois in 1969. He left the practice of law for a time, serving as president and chief executive officer of a steel company. He returned to the practice of law in 1998.
¶ 4 In 2004, the Administrator filed a six-count complaint alleging that respondent had been convicted of two charges of misdemeanor driving under the influence of alcohol, one charge of misdemeanor driving while his license was revoked, and three felony charges of driving while his license was revoked. In each instance the Administrator also alleged that respondent failed to report his conviction to the Commission in violation of Supreme Court Rule 761(a) (Ill. S. Ct. R. 761(a) (eff. July 1, 1984)). In addition, the Administrator charged that respondent neglected a client's declaratory judgment action. The Hearing Board found that the Administrator had proven the misconduct alleged in five of the six counts. As to the sixth count, neglect of a client matter, the Hearing Board found that some of the allegations had been proven. The Review Board affirmed. On September 26, 2005, this court issued an order suspending respondent from the practice of law for a period of 18 months, effective October 17, 2005, and ordering him to reimburse the Disciplinary Fund for any client protection payments arising from his conduct.
¶ 5 On October 17, 2007, the Administrator filed the present three-count complaint. Count I alleged misrepresentation to a tribunal, specifically the United States Bankruptcy Court for the Northern District of Illinois. Count II alleged that respondent engaged in the unauthorized practice of law before the United States Court of Appeals for the Seventh Circuit during his suspension. Count III alleged that he engaged in the unauthorized practice of law in the circuit court of Du Page County after the effective date of his suspension.
¶ 7 Count I involves a matter that occurred prior to respondent's suspension. In 1998, Thomas Consolidated Industries (TCI), a corporation of which respondent was president and sole shareholder, purchased a tool and die shop from Juergen and Trudy Herbst, who continued to own the property where the business was located. Later, the Herbsts filed a forcible entry and detainer action against TCI. In 1999, TCI filed for bankruptcy. Respondent at times represented the bankruptcy trustee and, in 2001, he filed an adversary proceeding on behalf of the trustee against the Herbsts and others, alleging breach of contract, fraud in the inducement, and other claims.
¶ 8 Discovery was a long, drawn-out process. According to the Herbst defendants, respondent refused to comply with requests for production of documents and to answer their interrogatories. In January 2004, the Herbsts filed a motion to compel, alleging that respondent had failed to adequately respond to their discovery requests. On March 8, 2004, the bankruptcy court ordered respondent to comply by April 30, 2004. On May 10, 2004, the Herbsts filed a motion for sanctions, alleging, in part, that respondent had not complied with the court's March 8 order. A hearing on the motion was set for May 13, 2004.
¶ 9 On May 12, 2004, however, the Herbsts' attorney received an overnight delivery package from United Parcel Service (UPS) containing the outstanding discovery responses. Attached to the discovery documents was a signed certificate of service, in which respondent stated that the materials had been sent "by U.S. mail postage prepaid" on "May 7, 2004." At the May 13 hearing, the Herbsts' attorney stated that the materials received the previous day were "inadequate, incomplete, and non-responsive" to the discovery requests. In addition, she stated that she checked the package's tracking number on the UPS website, which indicated that UPS had received the package on May 11, 2004, for overnight delivery and delivered it to her on May 12, 2004. That is, respondent not only sent the discovery materials after the April 30 deadline, he appeared to have sent them after the Herbsts' attorney filed the motion for sanctions. On May 27, 2004, the Herbsts filed an amended motion stating that the documents received on May 12 were certified by respondent to have been mailed on May 7. The amended motion also incorporated the UPS tracking information.
¶ 10 After another hearing on August 5, 2004, the bankruptcy court ruled on the Herbsts' motion for sanctions. At that hearing, respondent stated "for the record," that he delivered the materials on May 7 "to the UPS store for copying and mailing. They mailed the material from the UPS store." Referring to the certificate of service, he stated that "[t]here was nothing false, or inadvertent, or misleading in the statement." At the conclusion of the hearing, the court granted the motion for sanctions, dismissing the case with prejudice based, in part, on respondent's failure to comply with the March 8, 2004, discovery order. In doing so, the court stated "[w]hat appears from the record is that you sent off your responses to discovery via UPS on May 11th and lied about when you did it. Now lie is a strong word and I use it here advisedly. At the very least, you asserted contradictory positions."
¶ 11 Respondent filed a notice of appeal with the United States district court, which affirmed the dismissal of the complaint with prejudice as a sanction for violation of the discovery order. In this appeal, respondent, as counsel for the bankruptcy trustee, "did not challenge the finding[s] that [he] lied to the court, and that [he] served the discovery responses only after receiving the motions for sanctions." In re Thomas Consolidated Industries, Inc., 456 F.3d 719, 724 (7th Cir. 2006).
¶ 12 In the subsequent appeal to the Seventh Circuit, the court rejected respondent's argument that the date on which he tendered the discovery materials was "irrelevant" to the issue of the propriety of dismissal as a sanction. The court stated that respondent's lie about when and how he served the discovery responses "went to the heart of the [bankruptcy] court's order." Thomas Consolidated Industries, 456 F.3d at 726. Further:
"Although he conceded that the responses were late in coming, he did not concede what was obvious to this court and to the courts below, that [he] failed to tender any responses until after the motion for sanctions was filed on May 10. His lie was calculated to make the court believe that he substantially complied with the court's order without the threat of the sanctions motion. Perhaps he hoped to persuade the court to enter a less severe sanction; perhaps he hoped to avoid sanctions entirely. But the lie was so obviously related to the failure to comply with the order that the connection did not merit express mention below. Because this is the focus of [TCI's] argument, we make express what the courts below implied: the lie about when and where the responses were tendered was evidence of a bad faith breach of the court's discovery order. Moreover, the courts below did not rely solely on Thomas' lies for a showing of bad faith, but relied in part on the fact that he repeated the same non-responsive, inadequate answers that the bankruptcy court expressly warned him were unacceptable. This blatant disregard of the bankruptcy court's order was more than sufficient to demonstrate the bad faith finding that justified dismissal." Id.
¶ 13 In the complaint, the Administrator charged that respondent's statements in the certificate of service and in the hearing before the bankruptcy court were false and that respondent knew or should have known that they were false, because he did not deposit the discovery responses in the "U.S. mail" on May 7, 2004; rather, he placed the materials with UPS for delivery on May 11, 2004. This conduct, the Administrator charged, constituted a violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (Ill. Rs. Prof'l Conduct R. 3.3(a)(1) (eff. Aug. 1, 1990) (making a "false statement of material fact or law to a tribunal")). In addition, the Administrator charged that this conduct violated Rule 8.4(a)(4) (Ill. Rs. Prof'l Conduct R. 8.4(a)(4) (eff. July 1, 1990) (conduct involving dishonesty, fraud, deceit, or misrepresentation)), and Rule 8.4(a)(5) (Ill. Rs. Prof'l Conduct R. 8.4(a)(5) (eff. July 1, 1990) (conduct prejudicial to the administration of justice)).*fn1 Thus, the Administrator argued, respondent was subject to discipline under Supreme Court Rule 770 (Ill. S. Ct. R. 770 (eff. Apr. 1, 2004) (conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute)).
¶ 15 On August 13, 2004, after the bankruptcy court dismissed TCI's lawsuit against the Herbsts and others, the bankruptcy trustee filed a notice of appeal with the United States District Court for the Northern District of Illinois. The notice of appeal listed Louis Levit as the attorney for the trustee and respondent as the former attorney. As noted above, the district court affirmed the dismissal on May 11, 2005. The trustee in bankruptcy subsequently decided to abandon the adversary claim. TCI, the underlying debtor, took over the action, replacing the bankruptcy trustee as appellant. On June 9, 2005, respondent filed a timely notice of appeal with the United States Court of Appeals for the Seventh Circuit. He did not, however, file an appearance as TCI's attorney.
¶ 16 On November 28, 2005, he filed a "Motion for Extension of Time" in the pending appeal. In that motion, he stated that he had been "working on the brief" and would "continue to do so." He also stated that he was "in discussion" with counsel to represent TCI but that if counsel could not be retained, he would complete the brief within the time requested. He asked for an extension until December 28, 2005. He signed the motion as TCI's president and shareholder, not as its attorney. On December 29, 2005, respondent filed a second "Motion for Extension of Time," in which he attributed the delay to difficulty in obtaining the record from opposing counsel. He again stated that he had been "diligently working on the brief." Again, he signed the motion as TCI's president and sole shareholder.
¶ 17 On January 3, 2006, the Seventh Circuit entered an order stating that TCI, a corporation, could proceed only through counsel and that because respondent was suspended, he could not represent the corporation. In its order, the Seventh Circuit cited Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1427 (7th Cir. 1985) (stating that "corporations must appear by counsel or not at all"). Respondent thereafter retained counsel to finish the appeal.
¶ 18 In the complaint, the Administrator charged that at the time respondent prepared and filed the two motions in the appeal before the Seventh Circuit, he was suspended from the practice of law in Illinois and in the Northern District of Illinois. Because respondent was not capable of serving as counsel to the corporation of which he was president and sole shareholder, the complaint alleged a violation of Rule 5.5(a) of the Illinois Rules of Professional Conduct (practicing in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction). In addition, the Administrator charged violations of Rules 8.4(a)(4) and (a)(5) and Supreme Court Rule 770.
¶ 20 Prior to his suspension, respondent represented Mervyn and Mercedes Phillips, the defendants in a citation proceeding brought by CIB Bank in the circuit court of Du Page County. He did not notify his clients, the circuit court, or opposing counsel of his pending suspension.
¶ 21 Three days before his suspension was to take effect, respondent filed a "petition for hearing/rehearing," which this court construed as a motion for reconsideration. This court ordered the Administrator to respond to the motion.
¶ 22 On October 19, 2005, two days after his suspension went into effect, respondent appeared in the CIB Bank matter at a citation hearing in the Lake County circuit court on behalf of a citation respondent, Hillmoor Golf Club. The judge called respondent to the bench and advised him that he was aware of the suspension order with an effective date of October 17. Respondent advised the court that the order was stayed.
¶ 23 Senior counsel for the Administrator sent a letter by regular and certified mail to respondent on October 20, 2005, informing him that under Supreme Court Rule 771(b), his suspension had become effective on October 17 and that his "filing of a petition for rehearing in this matter does not automatically stay or recall the court's mandate." (Emphasis in original.) A copy of Supreme Court Rule 764, which lists the duties of disciplined attorneys, was enclosed. In addition, the letter advised that the Commission had received information from various sources that respondent continued to file pleadings and appear in court on behalf of clients after the date of his suspension and that, if true, this conduct "may violate various provisions of the Rules of Professional Conduct."
¶ 24 Respondent replied to this correspondence from the Administrator by letter, stating that he filed his petition for rehearing pursuant to Supreme Court Rule 367 (Ill. S. Ct. R. 367 (eff. Sept. 1, 2006)), and that as a result, the order of suspension "is stayed until the Supreme Court rules upon the petition." He characterized the October 20 letter as "threatening," and stated that counsel for the Administrator had "an unnatural desire to punish and harass him." He accused John Ropiequet, an attorney for the plaintiffs in the CIB case, of threatening his clients and "undertaking to usurp the authority of the Supreme Court." He further suggested that the Commission investigate Ropiequet and asked that the Commission "[p]lease keep me informed."
¶ 25 On October 26, 2005, respondent conducted the deposition of Ropiequet and appeared with the Phillipses as their attorney as they were deposed.
¶ 26 On that same date, counsel for the Administrator informed respondent by letter that Supreme Court Rule 367 did not apply to his suspension and directed him to Rule 771(b), which provides that a petition for rehearing from a disciplinary order does not stay or recall the court's mandate. Ill. S. Ct. R. 771(b) (eff. Apr. 1, 2004). The letter further recommended that respondent contact the clerk of the Supreme Court to resolve any doubt he might have regarding his status. The telephone number for the clerk's office was provided. Finally, the letter informed respondent that:
"If you continue to hold yourself out as an attorney and continue to engage in the practice of law, your conduct may be deemed the unauthorized practice of law, and therefore exposing [sic] you to criminal sanctions, contempt of court and/or additional disciplinary proceedings. In addition, your conduct may cause prejudice to your clients in that any rulings made during a period of suspension may be deemed void by the courts."
¶ 27 This court denied respondent's motion for reconsideration on October 28, 2005.
¶ 28 An investigation was opened after the Commission received a report from attorney Ropiequet. After looking into the matter, the Administrator advised Ropiequet that "upon our communications with him, Mr. Thomas withdrew from the case at issue and has ceased any representation in that matter. As a result, we have determined that a formal disciplinary prosecution of Mr. Thomas is unnecessary."
¶ 29 On August 30, 2006, respondent was also advised by a letter from counsel for the Administrator that the matter had been closed. The letter specifically referred to Commission Rule 54, which provides that the Administrator shall close an investigation when he concludes "that there is insufficient evidence to establish that the respondent has engaged in misconduct" and that such closure "shall not bar the Administrator from resuming the investigation if circumstances warrant." Attorney Registration and Disciplinary Comm'n R. 54. On July 18, 2007, counsel for the Administrator informed respondent that the matter was being reopened in light of his continuing to practice law in the matter before the Seventh Circuit.
¶ 30 In count III, the Administrator charged that respondent's participation in the October 26, 2005, depositions as attorney for the Phillipses violated Rules of Professional Conduct 5.5(a), 8.4(a)(4), and 8.4(a)(5) and Supreme Court Rule 770.
¶ 33 Before the Hearing Board, respondent testified that he took the discovery documents to the UPS store in Willowbrook, Illinois, on May 7, 2004, for copying and mailing. He did not instruct the UPS store that he wanted the documents to be copied and sent by United States Postal Service that day. He assumed that the work would be done that day and did not ask when or how the materials would be sent. UPS did not give him a date. He further testified that after copying the documents, the UPS store sent them to another UPS facility in Addison, Illinois, for delivery. He had never been to the Addison facility. He also admitted that his answers to the discovery requests were due on April 30, 2004, and that he did not comply with the discovery order. He explained that his strategy was to provoke the bankruptcy court into imposing a discovery sanction so that he could appeal and obtain a remand to a different judge.
¶ 34 The Hearing Board accepted as true respondent's statement that he took the discovery materials to the UPS store on May 7, 2004. The tracking information obtained from the UPS website might be explained by his delivery of the materials to the Willowbrook store on May 7 and later delivery by UPS itself to the Addison facility on May 11. In the absence of evidence explaining UPS procedures, the Hearing Board found that the Administrator failed to prove that respondent lied about the date on which he delivered the documents to UPS.
¶ 35 Nevertheless, the Hearing Board concluded, he engaged in misconduct by certifying that he sent the documents on May 7 by United States Postal Service. The certificate was "wrong and misleading" because the documents were not sent on May 7 and they were not sent via "U.S. mail." Respondent had no basis for making these assertions; he did not have reasonable expectation that the documents would be sent on this date or in this manner, and he did not inquire about when and how they would be sent. Thus, "[b]y completing and delivering the inaccurate certificate of mailing," he engaged in misconduct. If he did not lie, he "completed the certificate of mailing with indifference to the truth."
¶ 37 Before the Hearing Board, respondent testified that he filed an appearance in the appeal before the district court, but did not file an appearance in the appeal before the Seventh Circuit. When he filed the motions, he knew his law license had been suspended, but believed he could represent his interests in the corporation pro se, as its president and sole shareholder. He stated that he had reviewed the Federal Rules of Civil Procedure and the rules of the Seventh Circuit and found no federal or local rule prohibiting him from ...