In Re Becker , 16 Ill. 2d 488 ( 1959 )

Mr. Justice House

delivered the opinion of the court:

The board of managers of the Chicago Bar Association upon a review of a report of the entire committee on grievances, sitting as commissioners under Rule 59, filed a report wherein they found the respondent guilty of unprofessional conduct, dismissed 14 of the committee’s 22 specifications of misconduct and recommended censure by this court. Respondent has filed exceptions to the report.

The charges arise out of respondent’s participation in zoning matters as an attorney for private interests while occupying the position of alderman of the city of Chicago. He is accused of representing conflicting interests, division of fees for legal services not based upon a division of services or responsibility, and failure to represent the public with undivided fidelity.

Much of the alleged misconduct involves respondent’s relationship with Maurice Blonsley, an attorney and close friend, during the period in which the complaints arose. Blonsley assisted respondent in the latter’s successful campaign for alderman in 1947. After the election respondent opened three offices in his ward where constituents could call upon him. Blonsley helped take care of their problems, and respondent referred a large amount of law business to him. In 1951 they had political differences and their cordial relationship terminated. Respondent became a candidate for city clerk in December, 1954, whereupon Blonsley divulged information to a Chicago newspaper relative to their relationship. Thereafter, several articles about respondent’s connection with zoning matters appeared, including photographic reproduction of checks. Respondent thereupon requested the Chicago Bar Association to investigate his conduct, and a special investigating committee of the bar was appointed. The committee filed a complaint with the committee on grievances. Respondent resigned as a candidate the day after he was served with a copy of the complaint.

We think the best approach is to examine each type of practice which allegedly constitutes unethical conduct rather than consider the specifications in numerical order, since some specifications allege more than one infraction.

Amicus curiae contends that an alderman, as an elected member of a legislative body, represents conflicting interests when he accepts employment from private interests in cases before the courts where his municipality is a party. He makes a like assertion of conflict with respect to an alderman’s appearance before administrative officers or bodies set up by the city. His theory is that the lawyer-member of a legislative body stands in a fiduciary relationship with it and any representation of private interests is unethical per se.

Respondent allegedly participated, and did receive fees, in three declaratory actions wherein the city of Chicago was a party. Under count XIX Ward Baking Company was desirous of using certain premises for a garage but could not do so under the prevailing zoning classification. Upon recommendation of respondent, one Nathanson was employed as counsel, the restriction was declared unconstitutional as to the garage property and Nathanson was paid a fee of $4,500, from which respondent was paid $1,300. Count XX involved a zoning problem of Accurate Threaded Fasteners, Inc. Respondent was approached and after stating that he did not make a practice of obtaining variations or handling rezoning, suggested that legal action was the only redress and recommended several attorneys, including Nathanson. The company’s attorney retained Nathanson, a declaratory judgment suit was successful and Nathanson was paid a fee of $3,000, $1,000 of which he paid to respondent. Count XXII involved a successful declaratory judgment action upon behalf of Lincoln Village Shopping Center wherein Blonsley was paid a fee of $2,000, of which respondent received at least $800.

We are of the opinion that there is nothing unethical in a lawyer-member of a legislative body appearing in litigation wherein his governmental unit is a party, even in cases where acts of that body are sought to be held unconstitutional. The court has complete jurisdiction and its determination is made without reference to the actions or desires of the legislative body or any individual member thereof. There is no Illinois precedent to the contrary, nor is such practice prohibited by the Canons of Ethics. Canon 49 applies “to the promotion or defeat of legislative or other matters proposed or pending before the public body of which he is a member,” not to ordinances or statutes after their passage. To hold otherwise would cause able, ethical and distinguished legislative members of our bar to hesitate before accepting cases in fields of the law in which they have traditionally practiced. What we have here said is subject to later comment upon the propositions of disclosure of employment and a division of responsibility or services.

Four counts of the complaint involved separate cases of businesses procuring variations of the Chicago zoning ordinance. During the period of their procurement, the zoning board of appeals was authorized to hear variations from zoning regulations, and to make recommendations to the city council, which had the power to grant or deny the variation. It was the practice of the board to send notice to the alderman of the appropriate ward when an application was filed. Such recommendations were referred by the city council to its building and zoning committee, and its actions in variation matters were customarily followed by the city council. The pattern was practically identical in the following specifications : count VII covered Diebel Tool and Dye Company, count X related to Dandy Screw Products Co., and count XV concerned the candy business variation of one Samuel I. Reis. Respondent was contacted, he recommended Blonsley as an attorney to help the parties with their variation requests, Blonsley appeared on their behalf and the variations were granted. In each case respondent was accused of receiving a portion of Blonsley’s legal fee, but he denied having been paid. It was urged by respondent that Blonsley’s testimony was unworthy of belief. The commissioners found that Blonsley’s testimony was not believable, and held that where respondent denied Blonsley’s statements, such statements would not be considered. They then dismissed 14 of 22 specifications. By accepting the view of the commissioners, it thus appears that respondent was not found guilty of accepting fees in the three counts last referred to above.

The commissioners findings with respect to counts VII, X and XV were that respondent had violated Canons 6 and 49. In count VII (Diebel Dye) they found that respondent had virtually forced Diebel to obtain assistance from him, directly or indirectly; in count X (Dandy Screw Products) their finding was that previously a variation had been referred to Blonsley and that the company “reasonably inferred” that it must contact respondent in a subsequent zoning matter; and in count XV that Reis was led to believe he must hire and pay Blonsley in order to secure a variation. The conclusions from their findings were that respondent as a lawyer in public office was obligated scrupulously to avoid any action from which it might be inferred that he was using his office in a manner inconsistent with his duty to the public, and that his actions were inconsistent with his duty to represent the public with undivided fidelity.

The use of force, intimidation or coercion for personal gain by such a public officer is obviously unethical and a lawyer who employs such tactics is subject to severe disciplinary action. While there is a strong inference of coercion by thé respondent, we are of the opinion that the record does not establish it with sufficient clarity to substantiate the charge.

When these three specifications are stripped of (1) actual participation in the matter as a lawyer, ánd (2) sharing of fees, which was done by the findings of the commissioners, coupled with our finding that coercion was not proved, all that is really left is a lawyer-alderman recommending a favored lawyer friend. True, respondent may have hoped for reward through business and fees in other fields; in fact, he admitted that he worked with and received fees from Blonsley in many other matters not connected with the city, but that alone, without other substantial corroborating proof, will not sustain the charge. It is a matter of common knowledge that advice is sought and received from an alderman daily. This is particularly true in a large city such as Chicago. It is unrealistic to expect him to turn his back on a constituent seeking advice as to legal counsel. There is little doubt that his recommendations of counsel were biased, but in these days of specialization in the professions, recommendations are made daily by professional men based partly upon ability, but undoubtedly elements of friendship, hope for reciprocity and like considerations have some bearing. We do not feel that recommendation alone to a constituent by a lawyer-alderman merits disciplinary action.

The next question is whether a lawyer-member of a legislative body may appear as counsel or co-counsel at hearings before a zoning board of appeals, or similar tribunal, created by the legislative group of which he is a member. We are of the opinion that he may practice before fact-finding officers, hearing bodies and commissioners, since under our views he may appear as counsel in the courts where his municipality is a party. Decisions made at such hearings are usually subject to administrative review by the courts upon the record there made. It would be inconsistent to say that a lawyer-member of a legislative body could not participate in a hearing at which the record is made, but could appear thereafter when the cause is heard by the courts on administrative review. This is subject to an important exception. He should not appear as counsel where the matter is subject to review by the legislative body of which he is a member. “A public officer owes an undivided duty to the public whom he serves, and is not permitted to place himself in a position which will subject him to conflicting duties or expose him to the temptation of acting in any manner other than in the best interests of the public.” (43 Am. Jur. 81, Public Officers, sec. 266.) We are of the opinion that where a lawyer does so appear there would be conflict of interests between his duty as an advocate for his client on the one hand and the obligation to his governmental unit on the other.

Count XVIII involves a situation within the foregoing exception. Respondent had represented the Berteau-Lowell Plating Works since 1939 or 1940. He appeared as counsel in the municipal court on two occasions and his law firm then filed an application for variation before the zoning board of appeals. At that time the board was authorized to hear applications for variation and to make recommendations to the city council, which had the power to grant or deny the variation. Respondent personally presented the case to the board and it recommended relief. He spoke to the' alderman from the ward wherein his client’s property was located and informed him that it was coming through the council. It was unanimously passed by the city council, with respondent voting in favor, and he received a fee of $350 for his services. Based upon the foregoing facts, which respondent does not deny, the commissioners found that he had violated Canons 6 and 49 by representing conflicting interests, and failing to represent the public with undivided fidelity by taking legal employment involving a matter which he knew he would have to pass upon as an alderman.

Respondent argues that he had represented BerteauLowell long before he became alderman and should be permitted to continue. There is no merit to this argument. When a lawyer accepts a public office he takes it not only with its prestige and emoluments, but with its burdens and duties as well. The fact that he had represented this client prior to his election does not remove the conflict. The. only way to avoid the conflict is to .no longer represent clients whose interests oppose those of the public that he represents. When he chose to become an alderman he became obligated to represent the city with undivided fidelity.

Respondent introduced considerable evidence to the effect that the approval of a variation by the city council was a purely formal action, that it was a generally accepted fact that it was purely a “rubber-stamp” requirement, and that therefore there was no conflict of interest. The answer is that a lawyer’s actions should be free from temptation and suspicion in accepting employment where interests might conflict. The impropriety of undertaking inconsistent duties is not only gauged by the fact that his intentions and motives are honest but also by the suspicion with which his acts may be viewed by the public. It is unnecessary that he be guilty of an actual betrayal of confidence. It is enough that he places himself in a position which leaves him open to the charge. (See People v. Gerold, 265 Ill. 448.) Activities of a lawyer which tend to bring the legal profession into disrepute have long been held to be grounds for disciplinary action. (People ex rel. Chicago Bar Association v. Meyerovitz, 278 Ill. 356; In re Serritella, 5 111.2d 392.) In our opinion his representation of Berteau-Lowell conflicted with his duties as an alderman, and tended to bring the legal profession into disrepute.

Count XXI involved an appeal by the Chicago Dunbrik Co. from the building commissioner to the board of zoning appeals in which respondent acted as co-counsel with Blonsley. As we understand it, the. procedure here differs from that of variations in that recourse is to the courts rather than to the city council. This case, therefore, does not fall within the prohibitory exception above noted, but comes within the category of appearances before hearing bodies or commissions, which we have heretofore indicated is permissible. Count XXI does raise other alleged infractions which have the question of the division of fees as the common denominator with count XIX (Ward Baking), XX (Accurate Threaded Fasteners) and XXII (Lincoln Village Shopping Center).

In each of the foregoing counts the commissioners found that respondent had violated Canon 34, which reads: “No division of fees for legal services is proper except with another lawyer, based upon a division of service or responsibility.” We have some difficulty in following the reasoning leading up to such a conclusion. In the specifications which found a violation of Canon 34 under counts XIX and XX the statement is made in each that “respondent, by his own admission actively participated in the declaratory judgment case and received a portion of the fee paid.” These findings negate the earlier findings in the same paragraph that there was a violation of the fee-splitting Canon. The evidence with respect to like charges under counts XXI and XXII was not entirely satisfactory.

A lawyer who is a public officer should be particularly careful to strictly observe the admonition of Canon 34. His public position may be such as to give him opportunities for referral of business far beyond that of other members of his profession. To split fees without a proportionate division of service or responsibility would not only be a violation of the Canon, but would violate the very essence of ethical conduct and take on attributes akin to those usually associated with the unsavory words “pay-off.” There are but few ways by which a lawyer could bring discredit upon the profession more quickly. However, we do not feel that the charges under counts XXI and XXII were sustained by the evidence.

The record is not so clear with respect to some of the fourteen counts dismissed by the board of managers. There is more than a suspicion that respondent participated in fees in which he did nothing more than make a referral. The same is true of count VII. There, Blonsley was paid a fee of $300 and he paid $150 to respondent. The latter admitted receiving that amount but denied that it referred to the Diebel matter. We do not mean to be critical of the board of managers’ action in refusing to accept Blonsley’s testimony except where corroborated, since he was thoroughly discredited. Undoubtedly, they were impressed, as are we, with the quality and quantity of the witnesses who testified to respondent’s reputation for honesty and integrity, and the fact that there is no dispute that he possesses a fine reputation and high standing in the community. Since we have found respondent to be subject to disciplinary action, no useful purpose would be served in detailing the charges and proofs contained in the counts which were dismissed. Even if we found the charges warranted, they would merely be cumulative.

One other matter deserves comment. What we have heretofore approvingly said with respect to a lawyer-member of a legislative body practicing before the courts and administrative bodies should be subject to the restriction that where he is co-counsel public disclosure of his participation is essential. If he expects to participate in litigation and share a fee, the record should so show and the client should have knowledge of such fact. While disclosure would make representation no more ethical, failure to disclose would create temptation and foster suspicion. Furthermore, his activities would then be subject to the bright light of public opinion.

It was charged that in several instances respondent failed to appear of record as co-counsel, where he shared in a fee. In at least one count (XX Accurate Threaded Fasteners) we believe the record bears out the finding that the client was not informed of his participation in the case or the sharing of the fee. Respondent argues that lawyers are often retained as co-counsel without the knowledge of the client and that his position is no different from that of lawyers generally. We think this prohibition applies peculiarly to lawyer-members of legislative bodies because of their responsibility to'the public. Since we have not heretofore'had occasion to pass upon this particular point, we will not discipline for failure to disclose employment in this case, but our view will serve for the guidance of the bar in the future.

Respondent complains that counts XXI and XXII were improperly added at the close of the proofs. He contends that the matters charged therein were considered by the special committee of inquiry, which chose not to include them in the complaint, and that the failure to include them constitutes a bar to- the “reopening” of the matters before the commissioners. It is argued, further, that they are not sufficiently clear and specific and that they introduce new matter not within the original complaint. The contention cannot be sustained. Count XXI simply alleged that on June 30, 1948, respondent received from Blonsley a check for $450, representing his share of legal fees in connection with the appeal to the board of zoning appeals in the Chicago Dunbrik Company matter; and count XXII alleged that on December 10, 1948, he received a check from Blonsley for $800, as a division of legal fees in a suit for declaratory judgment holding a zoning ordinance invalid as applied to the property of Lincoln Village Shopping Center. The allegations are sufficiently clear. Moreover, both checks were referred to in his own brief filed with the special committee, the charges are substantially uncontroverted in the evidence, and there is no offer of proof in opposition thereto. Respondent was not prejudiced by the addition of the two counts. A disciplinary proceeding is not a lawsuit with formalities of pleading, nor can technicalities be invoked to defeat the charges where undisputed facts show conduct which is ethically wrong. (In re Hamilton, 388 Ill. 589; In re Sanitary District Attorneys, 351 Ill. 206.) The point is academic in any event, since we have found no unethical conduct under either count.

So far as we are advised this court has not heretofore been called upon to judge the propriety of practices such as those presented by this record, but the principles involved have long been firmly established. Any conduct of a lawyer which necessarily tends to bring discredit upon the profession is an abuse of the privilege secured to him by his license. “It is vital to the well-being of society and the administration of justice that attorneys, who are officials of the court and a part of our judicial system, should maintain the most scrupulous care in conducting themselves, and should discharge their duties in such manner as will secure and preserve the respect and confidence of the public.” (In re Clark, 8 Ill.2d 314.) It is readily apparent that whether a case such as this has previously been presented does not affect the fact that standards exist by which the conduct of lawyers in public office may be tested, (In re Sanitary District Attorneys, 351 Ill. 206, 220,) and that under those standards certain conduct of respondent heretofore pointed out cannot be condoned.

Insofar as the record shows, the matters in question were handled competently and no harm was intended to the public. In addition, it is undisputed that respondent’s reputation, both personally and professionally, is good. We agree with the commissioners that he was not guilty of conduct warranting disbarment or suspension, but some of his actions were such as tend to bring the legal profession into disrepute. The recommendation of the commissioners is appropriate and respondent is,- accordingly, censured.

Respondent censured.