In re Martinez-Fraticelli ( 2006 )

Docket No. 101317.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re JOSEPH ANTHONY MARTINEZ-FRATICELLI,
Attorney, Petitioner.
Opinion filed May 18, 2006.
JUSTICE FREEMAN delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices McMorrow, Fitzgerald,
Kilbride, Garman, and Karmeier concurred in the judgment and
opinion.
OPINION
Petitioner, Joseph Anthony Martinez-Fraticelli, was
disbarred on consent (145 Ill. 2d R. 762) effective May 27,
1998. On June 20, 2003, petitioner filed a petition seeking
reinstatement to the roll of attorneys. 134 Ill. 2d R. 767. Both
the Hearing Board and the Review Board of the Attorney
Registration and Disciplinary Commission recommended that
petitioner be reinstated to the practice of law. We allowed the
Administrator leave to file exceptions to the report and
recommendation of the Review Board. 166 Ill. 2d R. 753. For
the reasons that follow, we determine that petitioner should be
reinstated to the roll of attorneys.
BACKGROUND
In the reinstatement proceedings, petitioner testified on his
own behalf and offered the testimony of several character
witnesses. Federal Bureau of Investigations Special Agent
Kenneth S. Samuel was the sole witness on behalf of the
Administrator. A summary of the evidence adduced at the
hearing follows.
Petitioner testified that he was born in Puerto Rico in 1945,
and moved to Chicago with his family in 1953. He began
working at a clothing store at the age of 12, and worked
continuously through his high school and college years. He
joined the Illinois Army National Guard in 1969, served four
months of active duty, and was honorably discharged in 1975.
Petitioner=s job in the clothing store was no longer available
upon his return from active duty. Petitioner testified that with
the help of his precinct captain and ward committeeman, he
was able to secure a position as a minute clerk in the criminal
division of the circuit court of Cook County. Three years later,
again with the help of the precinct organization, he was able to
secure employment with the Cook County board of tax
appeals. He accepted and reviewed tax assessment files
submitted to the board of tax appeals to ensure that each file
contained the documentation needed to support the request for
tax relief. He was authorized to make recommendations on
single-family residences with assessment values of less than
$2,000.
Petitioner testified that while working at the board of tax
appeals, he attended classes at night at DePaul University
College of Law, graduating in 1976. Starting in 1978, he was
appointed to the Cook County Board of Corrections, an
oversight board addressing the grievances or complaints of
persons incarcerated at the county jail. Board of Corrections
members were not salaried but received a per diem allowance
for attendance at meetings. In 1979, he was admitted to the
practice of law. Also, at some point in the 1970s, he became
the assistant precinct captain of the 31st ward=s 28th precinct.
When the precinct captain died in 1980, he succeeded him to
the post.
Mel Klafter was an attorney practicing law before the board
of tax appeals. Petitioner testified that in 1981 Klafter offered
him a position with the law firm of Klafter & Burke. He was to
review real estate tax appeal files for the law firm to ensure that
the files contained the necessary supporting documentation.
He accepted the offer, leaving the board of tax appeals to work
for the law firm. Although petitioner worked exclusively for the
law firm, petitioner testified, the law firm gave him a 1099 form
as an independent contractor at the end of the year. The law
firm did not provide any employment benefits to him.
In December 1981, Chicago Mayor Jane Byrne asked
petitioner to fill the unexpired term of 31st ward alderman
Chester Kuta. Petitioner testified that he did not seek the
appointment and did not know why the mayor had selected him
for the position. He accepted the part-time position, which paid
approximately $20,000 a year and provided him with health
and pension benefits, while continuing his work at Klafter &
Burke. The appointment lasted 14 months. At the end of the
term, he was not asked to run for election, and did not do so.
Petitioner testified that in 1985 he asked the law firm to
provide him with health insurance benefits, and the named
partners, Klafter and Edward Burke, told him that they would
look into it. Shortly thereafter, Burke, then chairman of the
Chicago city council=s committee on finance (Finance
Committee), told him to fill out an application for part-time
employment as a legislative aide to the committee. He
completed a personal data form, and a Department of
Personnel screening questionnaire. The forms did not indicate
whether the legislative aide position was part-time or full-time.
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However, he disclosed on the questionnaire that he was a self-
employed attorney. Petitioner testified that, the following day,
Burke told him that he had been hired as a legislative aide to
the Finance Committee. He was to be Aon call@ for the
committee, with work coming from the committee to the law
office. Burke gave him several bar journals and advance
sheets to review and determine what cases impacted the
Finance Committee or the city. Petitioner stated that he did not
have a supervisor at city hall. Indeed, upon inquiry at city hall,
he was told that there was no office, chair or desk where he
could work.
Petitioner worked for the Finance Committee from August
1, 1985, through May 15, 1987, receiving approximately
$18,177 in wage payments and $6,642 in health insurance
coverage and benefits. Petitioner testified that either he would
pick up his check at city hall or the check would be delivered to
him at the law office by Burke=s secretary. Beyond the original
assignment given to him by Burke, he did not receive any work
assignments from the committee. Petitioner testified that on
several occasions he requested additional assignments from
Burke. However, Burke told him that he was Aon call@ and
would receive assignments as needed.
On May 16, 1987, petitioner was appointed as a legislative
aide to the Chicago city council=s Committee on Land
Acquisition, Disposition, and Leasing (Land Acquisition
Committee). Petitioner stated that he did not ask to be
transferred and did not interview for the position with the Land
Acquisition Committee. Rather, Burke informed him of the
transfer, told him that he would be Aon call@ for the committee,
and told him that he would receive committee work at the law
office as needed. Petitioner testified that he understood the
position with the Land Acquisition Committee was part-time,
and anticipated that he would receive work from the committee.
Petitioner was employed by the Land Acquisition
Committee until March 31, 1988. Petitioner testified that
periodically he inquired of Burke about work for the committee
but did not receive any assignments. He did not ask the chair
of the Land Acquisition Committee for work. Indeed, he did not
have any direct contact with the chair of the committee.
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Petitioner testified that he was told at city hall there was no
office, chair or desk where he could work. During his tenure
with the committee, petitioner received approximately $5,171 in
wage payments and $4,405 for health insurance coverage and
benefits.
Petitioner testified that, at Burke=s direction, he applied for a
position as a clerk with the Chicago city council=s Committee
on Traffic Control and Safety (Traffic Committee). As part of
the application process, he disclosed that he worked as a self-
employed attorney. He did not interview for the position with
the Traffic Committee. Rather, Burke informed him that he had
been hired by the committee. He did not have a place to work
at the committee=s office and did not receive any assignments
from the committee. Petitioner testified that he asked Burke for
work assignments periodically, but did not receive any.
Petitioner stated that either he picked up his checks at the
committee=s office or the checks were delivered to him at the
law firm by Burke=s secretary.
Petitioner testified that, starting in December 1991, he was
asked to fill out time sheets for the Traffic Committee. For
approximately four months, he signed in almost daily at the
committee=s office and received his checks on payday.
Petitioner believes that he was also required to sign out.
Petitioner testified that, at the time, he believed that by signing
the time sheets he was showing that he was available to work.
In retrospect, he realized the time sheets created the false
impression that he was actually working at the committee=s
office every day.
Petitioner resigned from the Traffic Committee on April 15,
1992, having received approximately $29,795 in wage
payments and $26,305 for health insurance coverage and
benefits. He did so as a matter of conscience, knowing that it
was wrong to continue his employment when he was not
performing any work. Petitioner testified that he had been
troubled by his lack of work assignments on all three
committees and wanted to return the money that he had
received. However, he did not know how to return the money
without attracting attention to himself. At the time of his
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resignation, he had heard rumors of investigations of ghost
payrolling, but the rumors did not influence his decision.
Petitioner continued his work with Klafter & Burke.
Petitioner testified that, after Klafter=s death in 1987, petitioner
appeared before the board of tax appeals on behalf of clients.
Starting in January 1992, the law firm provided health
insurance benefits to him. His earnings at the firm increased
over the years, such that he earned $134,191 in 1995.
On April 17, 1995, an agent of the Federal Bureau of
Investigations (FBI) left a business card at petitioner=s home,
with a request that petitioner call the FBI. The next day,
petitioner obtained a certified check in the amount of $45,000,
what he calculated his wages from the city committees to have
been over the years. He took the check to the city treasurer=s
office but the office refused to accept it. Petitioner then mailed
the check to Mayor Richard M. Daley with a note of
explanation.
Petitioner met with the FBI on April 19, 1995, without
counsel. Petitioner testified that he panicked when the FBI
agents told him that he was the subject of the ghost-payrolling
investigation. He lied to the agents, telling them that Alderman
Anthony Laurino had hired him as a consultant to the Traffic
Committee. His job was to review traffic-related cases in a law
journal and report to Laurino. As a consultant, he had no set
hours that he was required to work for the committee.
Approximately four to six months prior to leaving the committee
in 1992, Laurino asked him to sign in at the committee=s office
on a daily basis. He signed in at approximately 9 a.m., stayed a
short while, and left for his law office.
Petitioner met with FBI agents a few weeks later, again
without counsel. At the meeting, petitioner informed the FBI
agents that he had lied to them at the first meeting. He
apologized to the agents and answered their questions
truthfully. From that point on, petitioner cooperated with the
FBI, meeting with agents on four other occasions and
answering their questions fully.
The subsequent interviews were done pursuant to an
October 1995 proffer letter, an agreement between the United
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States Attorney=s office and petitioner that information so
obtained would not be used against petitioner. FBI Special
Agent Samuel testified that the information petitioner gave
pursuant to the proffer was consistent with, but more extensive
than, the information in petitioner=s subsequent plea
agreement. The government used the information petitioner
provided pursuant to the proffer in indicting Laurino.
As part of the reinstatement proceedings, petitioner gave a
consent to the United States Attorney=s office for the release of
the information protected by the proffer to the Hearing Board.
Apparently because of an ongoing investigation, the United
States Attorney=s office released a redacted copy of the proffer
protected information to the Hearing Board. The Hearing Board
admitted the document into evidence and placed it under seal.
Petitioner testified that he appeared before a grand jury,
admitted that he had lied to the FBI agents at their first
meeting, and testified truthfully regarding his employment with
the city committees. Also, from his meetings with the FBI,
petitioner learned that the positions he held on the committees
were considered full-time positions, and obtained an
approximation of the wage payments and the health insurance
coverage and benefits that he had received from the city. On
October 6, 1995, petitioner sent a certified check to Mayor
Daley in the amount of $25,000. Petitioner completed
restitution on October 1, 1996, sending a final check to Mayor
Daley in the amount of $21,000. In all, petitioner refunded to
the city $91,000, an amount in excess of the wages and health
insurance benefits that he received from the city. Petitioner did
not receive any special consideration for paying back the
funds, actually refunding the money against the advice of
counsel. 1
1
During the reinstatement proceedings, petitioner obtained information
from Blue Cross Blue Shield regarding a visit he had made to a hospital
emergency room in 1988. Petitioner attempted to reimburse Blue Cross
Blue Shield the $324 the insurance carrier had paid for the visit. Blue Cross
Blue Shield refused the payment, however, because the City is self-insured
and had actually covered the cost of the visit. The difference between the
$91,000 petitioner refunded the city and the total of the wages and benefits
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The United States Attorney filed an information against
petitioner on January 23, 1997, charging him with theft of
federal program funds given to the City of Chicago in that he
received wage payments and health insurance coverage and
benefits while employed by the Traffic Committee without
performing any work for the committee. Also on January 23,
1997, petitioner pled guilty to theft of money from programs
receiving federal funds in connection with his employment with
the Traffic Committee. In particular, petitioner admitted that he
knowingly and intentionally stole federal funds by accepting
wage payments and health insurance coverage and benefits
for work as a full-time employee of the Traffic Committee when
in fact he performed no work for the committee. Petitioner also
admitted that, starting in December 1991, he signed time
sheets at the Traffic Committee=s office, knowing that he was
creating the false appearance that he was Aon call@ for the
committee. During this time period, petitioner neither expected
to perform nor did he perform, any work for the committee.
For purposes of computing his sentence under the United
States Sentencing Guidelines, petitioner stipulated to additional
wrongdoing in connection with his employment with the
Finance Committee and the Land Acquisition Committee.
Petitioner admitted that he stole federal funds by receiving
wage payments and health insurance coverage and benefits
for work as an employee of the Finance Committee when, in
fact, he performed only several hours of work for the Finance
Committee. Further, petitioner admitted that he stole federal
funds by receiving wage payments and health insurance
coverage and benefits for work as an employee of the Land
Acquisition Committee when, in fact, he performed no work for
the Land Acquisition Committee. Lastly, petitioner admitted that
he was placed on the payroll of all three committees in order to
receive health insurance.
the city paid petitioner was sufficient to cover the money paid for the
emergency room visit.
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In the plea agreement, petitioner agreed to fully and
truthfully cooperate with the government in any matter in which
he is called upon to cooperate. Further, defendant agreed to
provide complete and truthful information in any investigation
and pretrial preparation, and complete and truthful testimony
before any federal grand jury and in any court proceeding. In
turn, the United States Attorney acknowledged petitioner had
demonstrated a recognition and affirmative acceptance of
personal responsibility for his criminal conduct. The
government promised it would make known to the sentencing
judge the extent of petitioner=s cooperation, and pledged to
move the court to depart downward from the applicable
sentencing guidelines range.
The district court granted the government=s motion for a
downward adjustment in the sentencing guidelines because of
petitioner=s cooperation. The court imposed a 10-month
sentence upon petitioner, with petitioner to serve five months in
the custody of the Attorney General, and five months in home
confinement. In addition, the court sentenced petitioner to
supervised release for two years, ordered him to pay an
assessment of $50 as required by federal law, and fined him
$15,000. Lastly, the court ordered petitioner to perform 100
hours of community service.
Petitioner served his sentence at Oxford Prison Camp in
Wisconsin, and complied with all other terms of the sentencing
order. He performed the required community service in three
months, working as an assistant in the outpatient care
department of a hospital near his home. Upon completion of
his term of community service, petitioner continued to volunteer
at the hospital an additional three to four months.
Petitioner testified that prior to his conviction he had
volunteered with the parking team and the welcome desk at the
Moody Church, where he also attended services. With the
news of the investigation, he decided to withdraw from any
public ministry at the Moody Church so as not to bring
disrepute to the church. Shortly after his release from prison,
he returned to the Moody Church and once more volunteered
in the church=s ministries. In particular, he volunteered for 10
hours a week in the church=s office, working with the assistant
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to the senior pastor. In the fall of 1999, when a part-time
position for a security and public relations person became
available, the assistant to the senior pastor recommended that
petitioner be hired. Petitioner accepted the offered
employment, all the while continuing his volunteer activities at
the church. Four months later, petitioner accepted full-time
employment at the church as the coordinator of public safety
and public relations, a position he continues to hold.
Staff members of the Moody Church testified that
petitioner=s position at the church is highly visible and requires
a great deal of honesty and trustworthiness. According to the
testimony, petitioner is seen by many as the face of the church,
being present at public events the church holds, and being the
first person that many visitors to the church will meet. Petitioner
accepts offerings from church attendees who have missed the
offering collection, is responsible for the cash boxes at ticketed
events, and holds the parking stickers the church uses to
subsidize parking for attendees. Petitioner has access to the
church=s petty cash safe which is used for individual offerings,
Sunday school offerings, petty cash boxes from ticketed events
and sales, miscellaneous checks, and the parking stickers. He
holds a AG-master key@ to the church, a key that provides
access to most places in the church. Within the church
community, petitioner has a reputation for honesty,
trustworthiness, and reliability. He is viewed as person of great
humility who is attentive to others and takes care of their
needs. According to witnesses, petitioner is cooperative, has a
Agentle spirit,@ and a Areal servant=s heart.@
Petitioner and staff members of the Moody Church testified
that petitioner continues to volunteer at the church. In
particular, petitioner helps with transportation for short-term
mission teams going overseas, coordinates efforts in obtaining
goods and other donations to be shipped to refugee camps in
Africa, and is a tutor with AKids Club,@ the church=s outreach
ministry to underprivileged children living in Chicago public
housing facilities. Petitioner is at the church six or seven days a
week, regularly spending 10 hours a day on his formal duties
and volunteer activities. Frequently, petitioner leaves the
church between 10 p.m. and 11 p.m. Petitioner was also
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involved in the church=s capital campaign, heading up the team
that made telephone calls to raise money for the campaign.
Petitioner has not kept his employment with the city council
committees and ensuing conviction for ghost payrolling a
secret from church leadership. In 1990, petitioner told Douglas
Bastian, then Minister of Pastoral Care, that he worked at city
hall to get health benefits and that he also had a job at a law
firm. In his evidence deposition, Bastian stated that by late
1990 or early 1991 petitioner started expressing frustration
about his employment at city hall. On several occasions,
petitioner voiced concern over the fact that he was not
receiving work, and stated that he was not earning the money
that he was being paid. Petitioner also mentioned that he had
been transferred because of his inquiries about work
assignments. In a progression that took place over months,
petitioner stated that he wanted to return the money to city hall,
that he was going to return the money to city hall, and that he
had made an unsuccessful attempt to return the money.
Petitioner also told him that he wanted to return the insurance
benefits.
Erwin Wesley Lutzer, senior pastor at the Moody Church,
testified that petitioner told him he had received money from
the city that he had not earned, and he intended to pay back
the money to the city. Petitioner expressed contrition and
regret over his employment with the city council committees
and over his conviction for ghost payrolling. Lutzer emphasized
that in all the years he has known petitioner, both before and
after his incarceration, petitioner has never once complained
that his conviction was unjust or inappropriate. Petitioner has
accepted his punishment with a sense of humility and
brokenness, with a realization that he had done wrong and
deserved the punishment meted out to him. Lutzer expressed
his belief that petitioner is a different person from the one who
was involved in criminal activity in the 1980s. He is to be
trusted with anything and has shown great faithfulness to the
church community. Roy Schwarcz, a pastor and missionary on
staff at the Moody Church from 1995 until 2002, also talked
with petitioner about his conviction for ghost payrolling.
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Petitioner was genuinely remorseful over his actions in
accepting money for work that he did not do.
Petitioner and staff members of the Moody Church testified
that, as part of the hiring process, petitioner discussed his
conviction with church leadership. Petitioner revealed that he
had been convicted for receiving money for work he did not do
while employed by the city council committees. Petitioner
talked about serving time in prison and refunding the money he
owed to the city. Also, during the church=s capital campaign in
2000, petitioner shared with a group of approximately 80
church leaders where he has been in life, and what his
experience has been in his relationship with God and with other
persons. Petitioner talked about his criminal activity and
conviction, the grace of God in his life since his conviction, and
the changes in his life. Petitioner realized what he had done
was wrong, took full responsibility for his actions, and
determined to live a life pleasing to God.
At the reinstatement hearing, petitioner readily admitted his
guilt in accepting money for work that he did not perform. He
recognized he had not earned the money that he was paid, he
was wrong in accepting the money, and he should have
resigned immediately when his requests for work did not lead
to additional assignments. He testified that, to his shame, he
fooled himself into believing that more work was forthcoming.
Petitioner stated categorically that Ait was wrong to be involved
in anything that would defraud anybody as a result of my
involvement in this. No question that I was in an activity that
defrauded the taxpayers of the City of Chicago, and I disgraced
them, and brought disgrace upon the legal profession, and I
brought disgrace upon my family. I did wrong. I brought
disgrace upon my God.@ Petitioner apologized for his criminal
activities, explained that his life has changed substantially, and
affirmed his desire to live a life that honors God and that is
helpful to other people.
Petitioner also testified regarding his efforts to keep current
with the law. Petitioner reviews advance sheets and has
attended seminars, including a seminar on real estate tax and
a seminar on legal ethics. Petitioner has also reviewed the
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rules of evidence, the Code of Civil Procedure, and the
supreme court rules.
As noted above, the Hearing Board recommended that
petitioner be reinstated to the practice of law. The
Administrator filed exceptions to the report and
recommendation of the Hearing Board with the Review Board.
The Review Board confirmed the recommendation of the
Hearing Board that petitioner be reinstated to the practice of
law. The Administrator sought and was granted leave to file
exceptions to the report and recommendation of the Review
Board. Additional facts relevant to the appeal will be discussed
in the analysis portion of the opinion.
ANALYSIS
An attorney who has been disbarred on consent must wait
three years after the date of the order allowing disbarment to
file a petition seeking to be reinstated to the roll of attorneys
admitted to practice law. 134 Ill. 2d R. 767(a). In the
reinstatement proceedings, the petitioning attorney has the
burden of proving by clear and convincing evidence that he
should be reinstated to the practice of law. In re Parker, 149 Ill.
2d 222, 232 (1992); In re Gottlieb, 109 Ill. 2d 267, 269 (1985).
The focus is on the petitioning attorney=s rehabilitation and
character (In re Fleischman, 135 Ill. 2d 488, 496 (1990); In re
Polito, 132 Ill. 2d 294, 300 (1989); In re Berkley, 96 Ill. 2d 404,
411 (1983)), with rehabilitation being the most important
consideration (Fleischman, 135 Ill. 2d at 496; In re Wigoda, 77
Ill. 2d 154 (1979)). Rehabilitation is a matter of the petitioner=s
return to a beneficial, constructive and trustworthy role. In re
Wigoda, 77 Ill. 2d at 159.
The petition for reinstatement is referred initially to a panel
of the Hearing Board to determine whether reinstatement
should be granted. 134 Ill. 2d R. 767(f). The hearing panel
must consider the following factors, and such other factors as
the panel deems appropriate, in determining the petitioner=s
rehabilitation, present good character and current knowledge of
the law:
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A(1) the nature of the misconduct for which the
petitioner was disciplined;
(2) the maturity and experience of the petitioner at
the time discipline was imposed;
(3) whether the petitioner recognizes the nature and
seriousness of the misconduct;
(4) when applicable, whether petitioner has made
restitution;
(5) the petitioner=s conduct since discipline was
imposed; and
(6) the petitioner=s candor and forthrightness in
presenting evidence in support of the petition.@ 134 Ill.
2d R. 767(f).
Either the petitioner or the Administrator may file exceptions to
the report of the Hearing Board with the Review Board. 166 Ill.
2d R. 753(d).
Reports or orders of the Review Board are reviewed upon
leave granted by this court or upon the court=s own motion. 166
Ill. 2d R. 753(e). In Parker, the court explained the objectives in
evaluating a petition for reinstatement and the respective roles
of the Hearing Board and the court:
AIn evaluating a petition for reinstatement, this court
must consider the >impact that an attorney=s conduct
has, or will have, on the legal profession, the public and
the administration of justice.= (In re Kuta (1981), 86 Ill.
2d 154, 157; In re Zahn (1980), 82 Ill. 2d 489, 493.)
While this court strives for consistency in attorney
discipline and reinstatement cases ([In re Carnow, 114
Ill. 2d 461, 472 (1986)]), we recognize that each case of
attorney misconduct and each petition for reinstatement
is unique and requires an independent evaluation of its
relevant circumstances (In re Holz (1988), 125 Ill. 2d
546, 558; In re Cheronis (1986), 114 Ill. 2d 527, 535).
We further note that this court alone decides whether or
not the petition is granted, and thus the hearing panel
can only make recommendations as to the disposition of
the petition. (In re Harris (1982), 93 Ill. 2d 285, 291-92.)
However, the hearing panel findings of fact are entitled
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to virtually the same weight as the findings of any other
trier of fact. Harris, 93 Ill. 2d at 292.@ Parker, 149 Ill. 2d
at 232-33.
See also In re Cohen, 83 Ill. 2d 521, 525 (1981) (Athe findings
and recommendations of the Inquiry, Hearing and Review
Boards are entitled to and receive our serious consideration.
These boards, with the exception of the Review Board, see
and hear the witnesses and play important roles in screening
and hearing cases, making factual findings in contested
matters and developing uniformity in our disciplinary system@).
Lastly, we note that the hearing panel findings will not be
disturbed on review unless they are against the manifest
weight of the evidence. In re Rinella, 175 Ill. 2d 504, 517
(1997).
In the present case, the Administrator takes exception to
petitioner=s reinstatement, arguing that the Hearing Board and
the Review Board failed to give adequate consideration to
factors weighing against reinstatement. We review the findings
as to each factor listed in Rule 767(f) in turn.
The first factor under Rule 767(f) is the nature of the
misconduct for which the petitioning attorney was disciplined.
The Hearing Board recognized the serious nature of
petitioner=s misconduct:
ABy accepting money to which he was not entitled,
Petitioner not only defrauded the citizens of Chicago but
engaged in a federal crime. The fact that the illegal
conduct continued for nearly seven years adds to the
severity of the misconduct as does the fact that, during
his final months with the Traffic Committee, Petitioner
signed his name each morning to a daily log-in sheet at
the Committee office. Placing his signature on those
sheets signified his physical presence in the Committee
office when, in reality, he spent each day at his law
firm.@
However, the Hearing Board determined that petitioner=s
misconduct was not sufficient reason to deny petitioner
reinstatement. Citing Fleischman, 135 Ill. 2d 488, In re Kuta, 86
Ill. 2d 154 (1981), In re Cohen, 83 Ill. 2d 521 (1981), In re
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Wonais, 78 Ill. 2d 121 (1979), and Wigoda, 77 Ill. 2d 154, the
Hearing Board noted that attorneys who had engaged in
bribery, conduct that strikes at the core of our legal system and
entails a specific intent to do wrong, have been reinstated to
the practice of law upon a proper showing of rehabilitation.
Observing further that petitioner neither initiated the ghost-
payrolling arrangement nor requested the committee
assignments, the Hearing Board concluded that Amisconduct
involving bribery is more egregious than the misconduct
engaged in by Petitioner.@
The Administrator does not contend that petitioner=s
Amisconduct, as serious as it is, should of itself forever
preclude reinstatement.@ However, the Administrator asserts
that the Aegregious nature@ of the misconduct Acan hardly be
overstated.@ Further, the Administrator contends that
petitioner=s misconduct is closer in nature and severity to the
misconduct involved in In re Alexander, 128 Ill. 2d 524 (1989),
where the court denied the petition for reinstatement, than the
misconduct involved in Fleischman, 135 Ill. 2d 488, where the
court granted the petition for reinstatement.
In Alexander, the petitioner was convicted of 15 counts of
mail fraud and one count of racketeering in connection with his
payment of bribes, over a three-year period, to deputy
commissioners and other employees of the board of appeals of
Cook County. The board of appeals reviewed real estate
assessments made by the Cook County assessor=s office for
the purpose of determining the real estate tax owed on
property. The petitioner practiced law with the firm of Welfeld &
Chaimson, where his duties mainly involved filing and litigating
real estate tax objections, and appearing before the board of
appeals. The firm=s fees were based on the amount of taxes
the property owners saved due to lowered real estate
assessments. The law firm filed over 260 cases for real estate
assessment reductions and obtained fraudulent assessment
reductions in excess of $8.5 million. The firm received
$240,000 in legal fees in connection with its real estate tax
work.
Following his conviction, the petitioner was disbarred on
consent. Three years later, the petitioner filed a petition for
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reinstatement, and the court denied the petition. In doing so,
the court commented on the petitioner=s maturity at the time
discipline was imposed. The court also determined that the
petitioner had a duty to pay restitution and had failed to do so.
Lastly, the court considered the seriousness of the petitioner=s
misconduct:
A >[T]he bribery of elected officials is a serious
offense that undermines the integrity of our system of
government.= (In re Gottlieb (1985), 109 Ill. 2d 267,
270.) While the officials to whom bribes were paid by
petitioner may not have been elected officials, they were
public officials under the direct control of two elected
commissioners ***. [Citation.] Bribing employees of a
government agency, like the Board, implicates the same
concerns as bribing a duly elected official. Moreover,
>[f]or a lawyer to participate in such an offense is
particularly reprehensible.= In re Gottlieb, 109 Ill. 2d at
270.@ Alexander, 128 Ill. 2d at 535.
The court concluded:
AIn evaluating a petition for reinstatement, this court
must consider the >impact that an attorney=s conduct
has, or will have, on the legal profession, the public and
the administration of justice.= (In re Kuta (1981), 86 Ill.
2d 154, 157; In re Zahn (1980), 82 Ill. 2d 489, 493.) To
allow petitioner=s petition for reinstatement at this time
would seriously devalue the importance of restoring the
public and the legal profession=s confidence in the fair
administration of justice.@ Alexander, 128 Ill. 2d at 539.
We disagree with the Administrator=s assertion that
petitioner=s misconduct is of the same nature and severity as
the misconduct involved in Alexander. Petitioner defrauded the
citizens of the City of Chicago in that he accepted wage
payments and health insurance coverage and benefits from the
city council committees for work that he did not perform. His
participation in the ghost-payrolling arrangement, however,
was not connected to his work as an attorney and did not
impact clients of the law firm. In contrast, the petitioner in
Alexander represented clients before the board of appeals, and
paid bribes to the very officials and employees of the board of
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appeals charged with reviewing the real estate assessments
made by the Cook County assessor=s office. The petitioner=s
misconduct in Alexander was directly tied to the petitioner=s
practice of law and called into question the fairness, integrity
and decisionmaking of a government agency. Further, we note
the magnitude of the fraud perpetrated by the petitioner in
AlexanderBthe petitioner defrauded the county of hundreds of
thousands of dollars in real estate tax revenues. Lastly, we
note the Administrator=s concession in the case at bar that
petitioner=s misconduct is not sufficient of itself to justify
denying the petition for reinstatement. In Alexander, the
Administrator contended that the misconduct was so serious
an offense that the petitioner=s Areinstatement should be denied
solely on that basis.@ Alexander, 128 Ill. 2d at 534.
The second factor under Rule 767(f) is the maturity and
experience of the petitioner at the time discipline was imposed.
The Hearing Board noted that petitioner was approximately 40
years old and had substantial experience in the work force and
with city government when he began his first assignment with
the Finance Committee. Although petitioner had been licensed
to practice law for less than six years, the Hearing Board
believed that factor to be irrelevant. The Hearing Board
reasoned that A[a]nyone of sufficient age to be a part of the
work force is capable of understanding that it is improper to
receive financial and other compensation over a lengthy period
of time without performing work to justify that compensation.@
We agree with the Hearing Board that petitioner was
sufficiently mature and experienced at the time discipline was
imposed to understand that his actions in accepting wage
payments and health insurance coverage and benefits from the
various committees were improper.
The third factor under Rule 767(f) is whether the petitioner
recognizes the nature and seriousness of the misconduct. The
Hearing Board felt strongly that petitioner both recognized the
nature and seriousness of his misconduct and deeply regretted
his criminal actions:
AAt hearing, Petitioner expressed remorse for his
misconduct and repeatedly acknowledged that his
actions were wrong. We perceived those declarations to
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be heartfelt and sincere. Moreover, numerous
representatives of Moody Church, including both clergy
and lay staff members, testified that since his release
from prison Petitioner has openly disclosed his criminal
conduct and has expressed genuine contrition for his
illegal acts. Petitioner=s overall demeanor conveyed
humility, anguish over his past behavior, and an
acceptance of total responsibility for his actions. In
recognition of the fact that he has disgraced the legal
profession, his family and the city taxpayers, Petitioner
offered his apologies to each of those groups.@
Having listened to petitioner=s testimony for several hours, and
having observed petitioner=s behavior over the course of the
hearing, the Hearing Board was uniquely positioned to
determine that petitioner recognized the nature and
seriousness of his misconduct. We agree with the Hearing
Board=s conclusion, and note that a review of the record leaves
no doubt as to petitioner=s brokenness and remorse over his
criminal actions.
The fourth factor under Rule 767(f) is whether the petitioner
has made restitution. AAlthough this court has stated that
rehabilitation rather than restitution is the >controlling=
consideration (In re Thomas (1979), 76 Ill. 2d 185), restitution
is nonetheless an important factor@ (Berkley, 96 Ill. 2d at 412)
in a reinstatement proceeding. The Hearing Board found that
petitioner had made complete payment of restitution to the City
of Chicago. We agree, and note further that petitioner
completed restitution of the monies to the City of Chicago even
before petitioner was indicted for his part in the ghost-
payrolling arrangement. Indeed, petitioner made the restitution
payments against the advice of his criminal counsel.
The fifth factor under Rule 767(f) is the petitioner=s conduct
since discipline was imposed. Here, also, we must agree with
the Hearing Board=s conclusion. The record indicates
petitioner=s conduct since discipline was imposed has been
exemplary. We note that upon completion of the community
service required by the sentencing order, petitioner volunteered
at the hospital for an additional period of time. Petitioner also
began volunteering at the Moody Church. His volunteer
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activities and interaction with personnel at the Moody Church
led to an offer of part-time employment. Petitioner showed that
he was trustworthy and reliable in that role, leading to an offer
of full-time employment with the church. Throughout his
periods of employment with the Moody Church, petitioner has
also volunteered in various ministries at the church, showing a
willingness to extend his work day by several hours in order to
help others and provide for their needs.
We also find that petitioner has a stellar reputation at the
Moody Church. Staff members of the church testified that he is
honest, trustworthy, reliable, cooperative, and attentive to the
needs of others. The witnesses also commented that petitioner
has a gentle spirit and a Aservant=s heart@ and is a person of
great humility. The senior pastor of the Moody Church testified
that petitioner is a Adifferent person@ from the one who had
participated in criminal activities and that petitioner is now a
valued member of the church community who strongly believes
in the redemptive power of God=s work in his life. We believe
that the evidence supports the Hearing Board=s conclusion with
respect to this particular factor.
The sixth factor under Rule 767(f) is the petitioner=s candor
and forthrightness in presenting evidence in support of the
petition. The Hearing Board generally gave petitioner high
marks for forthrightness, observing that A[m]uch of the
information submitted by petitioner in conjunction with his
petition, including his current assets and financial obligations,
his past involvement in a civil action, his income tax disclosures
and his employment history was not challenged by the
Administrator as being inaccurate or misleading in any way.@
However, the Hearing Board was troubled by petitioner=s
testimony at the hearing as to the reasons petitioner allowed
himself to remain on the city payroll for nearly seven years.
Petitioner stated that he was told he would be assigned work
Aas needed@ and he anticipated that he would receive work.
The Hearing Board confessed itself Abewildered that someone
with Petitioner=s level of experience could continue to accept
unearned paychecks for even one year, let alone seven years,
without coming to the conclusion that the employment was a
sham.@ The Hearing Board allowed Afor the fact that Petitioner
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may still be attempting to rationalize his behavior to himself,@
and reasoned, A[w]hile the benefit of hindsight allows us to be
critical of Petitioner=s explanations as to why he continued to
accept paychecks, we cannot conclude with certainty that
those explanations evidence a lack of candor on his part,
particularly in light of his sincere acknowledgments of
wrongdoing and his conscientious disclosure of information in
his petition and in the remainder of his testimony.@
The Administrator believes that the Hearing Board did not
give proper weight to petitioner=s Alack of candor.@ The
Administrator notes that petitioner=s misconduct spanned a
number of years and employment with three different city
committees. Also, according to the Administrator, petitioner
tried to distance himself from blame when he testified that he
expected work and stood ready to perform any assignments
that he received. The Administrator contrasted petitioner=s
testimony to the admissions he made in the plea agreement
leading to his conviction.
We find the proceedings in Fleischman, 135 Ill. 2d 488,
particularly helpful in our review of the Hearing Board=s finding.
The petitioner in Fleischman testified in the federal trial of
Stephen Gorny, an official of the board of tax appeals of Cook
County, that he paid money to Gorny so that Gorny would read
the petitioner=s tax appeal files and Aagain if there were any
close cases, if possibly he would interpret the documentation in
favor of the client.@ Throughout the reinstatement proceedings,
however, the petitioner adamantly maintained that the
payments he made to Gorny and Robert Hosty, another official
of the board of tax appeals, were not for the purpose of
influencing their decisions, but rather for the purpose of
inducing them to read the tax appeal files. The petitioner said
he was convinced the board of tax appeals was not reading the
files. He testified he paid the money, out of his own funds, so
his clients could get fair hearings. In allowing reinstatement
upon a showing of restitution, the court observed:
AThe Hearing Board found that petitioner was candid
and forthright in his presentation of evidence before the
Board. This is another factor which the Board is best
able to apply, having viewed the petitioner while
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testifying. Although we are troubled somewhat by
petitioner=s inability to satisfactorily reconcile his Federal
testimony in the prosecutions of Gorny and Hosty with
his contention in reinstatement proceedings to the effect
he only paid money to influence the commissioners to
read the files, petitioner unequivocally acknowledged
that his conduct was >a hundred percent wrong= and his
testimony convinced the Board that petitioner is
rehabilitated. We concur that reinstatement is
appropriate.@ (Emphasis in original.) Fleischman, 135 Ill.
2d at 497.
In the present case, upon review of the entire record, we
believe that the Hearing Board thoughtfully evaluated
petitioner=s candor, giving due consideration to this factor.
Although the Hearing Board was troubled by one aspect of
petitioner=s testimony at the hearing, the Hearing Board could
not conclude with certainty that petitioner=s testimony evinced a
lack of candor. The Hearing Board balanced petitioner=s
testimony regarding his expectation of work from the
committees against petitioner=s Asincere acknowledgments of
wrongdoing and his conscientious disclosure of information in
his petition and in the remainder of his testimony.@ The Hearing
Board was able to observe petitioner over the course of a two-
day hearing, and, in addition to the testimony regarding
petitioner=s expectation of work, heard petitioner=s testimony
regarding many facets of his life. The Hearing Board also
heard testimony from several other witnesses regarding
petitioner=s character. AGiven the nature of the evidence which
petitioners usually present and the difficulty of accurately
assessing the subjective qualities so important in a
reinstatement case, this court has ordinarily given considerable
weight to those findings of the hearing panel which represent
an evaluation of the witnesses= credibility and the petitioner=s
candor, forthrightness and sincerity.@ Berkley, 96 Ill. 2d at 411.
We are also aware of petitioner=s testimony at the
reinstatement hearing that the plea agreement did not reflect
his statements to the FBI that he expected work from each of
the committees. Petitioner insisted that his testimony to the
Hearing Board regarding the expected work assignments was
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consistent with the statements he had made to the FBI. In a
reinstatement proceeding, it is presumed that the petitioner
participated in activities which justified his disbarment in the
first instance. Thus, the petitioner stands to gain nothing in
failing to admit the wrongdoing. In light of petitioner=s testimony
that he sought work assignments and was always told that he
was Aon call@ and would receive assignments when needed, we
cannot say that his testimony at the hearing evinced such a
lack of candor that his petition should be denied.
Each petition for reinstatement is unique and requires an
independent evaluation of the relevant circumstances.
Fleischman, 135 Ill. 2d at 495 (citing Alexander, 128 Ill. 2d at
539, In re Holz, 125 Ill. 2d 546, 558 (1988), and Polito, 132 Ill.
2d at 301). The findings of the Hearing Board are, of course,
advisory and not binding upon this court. Wigoda, 77 Ill. 2d at
158. However, as the court has recognized on numerous
occasions, the findings of the Hearing Board are entitled to
virtually the same weight as the findings of any initial trier of
fact. Cohen, 83 Ill. 2d at 525; Wigoda, 77 Ill. 2d at 158. In the
present case, we believe that the findings of the Hearing Board
enjoy considerable support in the record, and we defer to those
findings.
Considering the factors enumerated in Rule 767(f), we also
believe that petitioner should be reinstated to the practice of
law. Petitioner is remorseful about his misconduct and has
endeavored, since his conviction, to live a life beyond
reproach. Petitioner has shown convincingly that he is
rehabilitatedBthat he has returned to a life that is beneficial,
constructive and trustworthy. We do not by any means
minimize the seriousness of petitioner=s misconduct. We also
agree with the Hearing Board and the Administrator that
petitioner should have terminated his city employment much
earlier than he did. We are cognizant, however, that petitioner
went through a progression in his determination to discontinue
his city employment and make restitution, that petitioner was
deeply troubled by his employment with the committees, and
that petitioner believed it would be difficult to extricate himself
from the situation. Moreover, we note that rehabilitation is the
most important consideration in a reinstatement proceeding.
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We take into consideration petitioner=s rehabilitation, his
remorse over his misconduct, and his payment of restitution to
the city in concluding that he should be reinstated to the
practice of law.
CONCLUSION
ADisciplinary proceedings are designed to safeguard the
public, maintain the integrity of the profession and protect the
administration of justice from reproach.@ Wonais, 78 Ill. 2d at
124 (citing In re Saladino, 71 Ill. 2d 263, 275 (1978), and In re
Nowak, 62 Ill. 2d 279, 283 (1976)). In the present case, we
believe that petitioner has shown by clear and convincing
evidence that he is rehabilitated and is once more fit to practice
law. Consequently, we adopt the recommendation of the
Hearing Board and Review Board that petitioner be reinstated
to the practice of law.
Petition granted.
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