In Re Kien , 69 Ill. 2d 355 ( 1977 )

MR. JUSTICE RYAN

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint which charged the respondent, Michael Robert Kien, with conduct which tends to defeat the administration of justice and bring the courts and legal profession into disrepute in that he paid $50 to a testifying police officer while defending a criminal case. Prior to this disciplinary action, respondent had been indicted and acquitted of bribery and subornation of perjury for the same act. After a hearing, a hearing panel of the attorney disciplinary system found misconduct and recommended suspension for 30 days. The Administrator filed exceptions to the findings and recommendation of the hearing panel, seeking a substantially greater sanction. The Review Board subsequently set aside the hearing panel’s recommendation and recommended disbarment.

The issue presented on review is whether the respondent’s act of paying a police officer for allegedly truthful testimony in a criminal case which the respondent was defending constitutes misconduct which justifies disbarment.

The complaint filed by the Administrator specifically alleged that Kien, while defending a client on charges of unlawful possession of a weapon and related offenses, paid $50 to a testifying police officer immediately after a hearing on the motion to suppress the weapon. Respondent’s client, Autrey Coleman, had been stopped in his car by police for a traffic offense. During the course of the arrest, Coleman became abusive and Officer Argyrakis opened the passenger door and found a gun inside the car. At the hearing, the. key issue was whether Officer Argyrakis had observed the gun in plain view or had only found it pursuant to a search.

On November 15, 1972, Officer Argyrakis went to court to testify for the prosecution against Coleman. When he arrived he was met by an attorney (not Kien) who represented Coleman. Prior to the case being called, Officer Argyrakis and Coleman’s attorney had a conversation in the corridor. The attorney for the Disciplinary Commission attempted to have the officer testify as to that conversation in order to show “the reasonableness of what the officer subsequently did and what subsequently occurred.” However, the chairman of the hearing panel sustained the objection to this testimony.

Coleman’s case was again set for hearing on March 13, 1973. Prior to that date, Argyrakis had met with an assistant State’s Attorney and, pursuant to an investigation, was thoroughly searched and fitted with a recording device. At that time neither Argyrakis nor his superiors knew that Kien represented Coleman. Immediately before the hearing, Kien and Officer Argyrakis went out into the corridor outside the courtroom and had a conversation as to where and how the weapon was found. There is a dispute as to the content of this conversation. The respondent’s version is as follows:

“KIEN: Can we take care of this today?

ARGYRAKIS: Yes.

KIEN: You stopped this guy and gave him a traffic ticket and you got him out of the car and you searched the car and found the gun underneath the seat?

ARGYRAKIS: No, I found the gun in open view.

KIEN: Is that in your report?

ARGYRAKIS: No, that is not in my report.

KIEN: What is in your report?

ARGYRAKIS: A search of the car revealed a gun.

KIEN: Good. You got him, you stopped him for a traffic violation, you searched the car, and you looked underneath the seat and found the gun.

ARGYRAKIS: The gun was in open view.

KIEN: Just a second. My client told me you gave him a traffic ticket, you stopped the car, you got him out of the car, you searched the car, and that you found the gun underneath the seat. What is going on?

ARGYRAKIS: I can find the gun wherever I want.

KIEN: What does that mean?

ARGYRAKIS: You get what you pay for.

KIEN: I just want the truth.

ARGYRAKIS: You got to pay for the truth.

KIEN: I don’t like it, but there is nothing else I can do.

ARGYRAKIS: What’s the case worth?

KIEN: Fifty dollars.

ARGYRAKIS: Half a hundred?

KIEN: Fifty, yeah.

ARGYRAKIS: Where are you going to meet me?

KIEN: I will meet you in the washroom.”

Officer Argyrakis’ version of the conversation differs and is as follows:

“He said, ‘Well, I got this guy here, this case here.’ He said, ‘Can we take care of it today?’ And I said, ‘Yes.’

He said, ‘Well, you got the guy for a traffic violation.’ Well, he said, ‘You didn’t want to talk to my partner.’ I said, ‘I don’t know your partner.’ He said, ‘You know me, don’t you?’ And, he asked, ‘Can we take care of it today?’

And, he says, ‘You got the guy out of the car for a traffic violation, and you searched the car, and found the gun under the seat.’ I said, ‘Yes, but in open view.’ He said, ‘Do you have that in your report?’ I said, ‘No, I have “a search”.’ He says, ‘Good.’ And, he said, ‘Just to say you conducted a search.’ I said, ‘O.K. What are we talking about?’ And he said, ‘Half a hundred.’ I said, ‘$50?’And he said, ‘Yes, $50. I will meet you over here about ten minutes after the case is over.’ I said, ‘O.K.’ and I went inside.”

At the hearing on the motion, Officer Argyrakis testified on direct examination by Kien that he had gone into the car and found the weapon inside. On cross-examination by the assistant State’s Attorney, Argyrakis stated that he had found the gun under the seat. The motion to suppress was granted. (At the disciplinary hearing, Officer Argyrakis testified that he had found the gun under the seat but it was in plain view.) Kien then met Argyrakis in the lavatory across the hall and paid him $50, whereupon he was arrested by Sergeant DeLisa, who was also assisting in the investigation.

On cross-examination at the disciplinary hearing Officer Argyrakis stated that when he had met with the assistant State’s Attorney prior to his court appearance on March 13 the following conversation took place between him and the assistant State’s Attorney:

“He said, ‘Do what the lawyer tells you to do.’ I said, ‘What if he tells me to lie under oath, then I will be in trouble.’ He said, ‘No, do whatever he tells you to do even to the point of perjuring yourself.’ He didn’t tell me to, he said, ‘Do whatever the lawyer tells you to do even to the point of perjuring yourself. You won’t be in any trouble.’ I said, ‘O.K.’ ”

Respondent contends that his payment to Officer Argyrakis was necessary to ensure that Argyrakis told the truth at the hearing and to protect his client from Argyrakis’ “extortion tactics.” Respondent admits that his act is not to be condoned. He asserts, however, that his misconduct was not of such a degree as to bring about a miscarriage of justice or strike “at the fabric of our judicial system.” He contends that he was only paying the officer to tell the truth. Respondent thus urges that disbarment is too severe a penalty, considering his prior good record, his reputation in the legal community, the single act of misconduct, the absence of personal benefit, and the fact that payment was made for the truth under extortionate circumstances. The respondent asks that we adopt the recommendation of the Hearing Board, and suspend him for 30 days.

The case of In re Howard (1977), 69 Ill. 2d 343, which we recently decided, resembles the case at bar, the facts and the issues being strikingly similar. In that case, a defense attorney paid the arresting officer $50 on two occasions to testify “to the truth” as listed on his report. He also made several remarks which implied that he was going to improperly influence both the prosecutor and the judge. In that case, we said:

“Whether it was to influence his testimony to be truthful or otherwise, such acts have the clear appearance of impropriety, bring law officers, the legal profession, and the court into disrepute, and hinder the administration of justice. ***

* * *

*** The damage that would immediately accrue to our system of justice, should it be acceptable to pay for truthful testimony, is manifest.” 69 Ill. 2d 343, 351, 353.

We do not find persuasive respondent’s argument that payment for “truthful” testimony is less harmful to our judicial system than is payment for false testimony or fabrication of evidence. The Review Board stated in its report in this case: “A lawyer who engages in the compensation of a witness to influence testimony, however rationalized, has undertaken a course of conduct which is inconsistent with the most fundamental principles of the legal profession.” (Emphasis in report.) Any payment by a defense lawyer to an arresting policeman must be viewed with suspicion. Since the defendant and the arresting officer are often the only witnesses to the arrest or search, a policeman would be encouraged to change the “truth” if the lawyer is permitted to pay him for what the lawyer believes is the truth. It is realistic to assume that defense lawyers will not pay policemen for “truth” which does not favor their clients. Those policemen who are less resistant to corrupting influences will soon discover how to change the truth to their economic benefit. It is axiomatic, however, that such corruptible police officers could not thrive but for the existence of lawyers willing to corrupt them.

Although we condemned the practice of such payments in In re Howard, for emphasis we reiterate that we will not tolerate payment of any sum of money by an attorney to witnesses for the opposition to secure or influence testimony, whether it be for the purpose of securing truthful testimony or otherwise.

As we said in In re Howard, however, “The discipline to be imposed in each case must be judged individually, based on the specific circumstances and conduct involved.” (69 111. 2d 343, 354.) While we find the respondent guilty of misconduct, we have considered the respondent’s prior record, the lack of direct personal gain, the fact that this is a single act of misconduct, and the circumstances of his act, all as factors in mitigation. In addition, we note that at the hearing it was stipulated that several well-known attorneys, including a judge and a prosecutor, would have testified as to respondent’s prior reputation for honesty and integrity. Also, although we have previously indicated that we severely condemn the respondent for paying money to the officer, we view his ethical aberration as less flagrant than that exhibited in In re Howard. In the case now before us the conduct of the assistant State’s Attorney and the officer, although not amounting to entrapment, can be viewed at least to be tacit encouragement to the respondent to enter into the condemned transaction.

Accordingly, it is the order of this court that the respondent be suspended from the practice of law for 18 months. However, the record indicates that the respondent had removed himself from the practice of law for at least 6 months. Accordingly, this 6-month period will be credited against the 18-month suspension.

Respondent suspended.