dissenting:
Although, as the majority observes, this court is not bound by the recommendations of the Hearing and Review Boards in deciding the disposition of a petition for reinstatement (see In re Parker, 149 Ill. 2d 222, 233 (1992)), the factual findings of the Hearing Board are entitled to deference because the Board “is able to observe the demeanor of witnesses, judge their credibility and evaluate conflicting testimony” (In re Fleischman, 135 Ill. 2d 488, 496 (1990)). Based on the Hearing Board’s factual findings with respect to the Rule 767(f) factors in this case, I cannot agree with the majority’s rejection of the Hearing and Review Boards’ recommendations that petitioner be reinstated to the practice of law.
In my view, the majority fails to afford the proper deference to the factual findings of the Hearing Board. In support of its decision to deny petitioner’s request for reinstatement, the majority relies on petitioner’s “delay in making restitution for the additional bribes to the State Farm adjusters” and his “failure to remove himself from the milieu that fostered his earlier misconduct.” The majority’s use of these facts to support denial of the petition for reinstatement is at odds with the Hearing Board’s findings.
The Hearing Board found no delay in petitioner’s payment of restitution to Wausau. He paid Wausau $40,000 in 1992. Also, although petitioner waited until 1998 to donate $1,200 to charity as compensation for his bribes to State Farm adjusters, the Hearing Board found that this $1,200 was not restitution in a “strict sense” and that petitioner was not required to pay this amount until after August 1996. Moreover, petitioner testified that he did not pay the $1,200 sooner because he was unsure to whom to make payment. The Hearing Board found petitioner’s testimony “honest, sincere and credible.”
Similarly, the Hearing Board found no impropriety associated with petitioner’s present employment relationship with medical providers to whom he had previously referred business. According to the Hearing Board, these relationships were unrelated to petitioner’s previous misconduct, and petitioner provided these medical providers with a legitimate collection service. In light of these findings by the Hearing Board, the majority’s reliance on the delay in petitioner’s payment of restitution and his relationships with certain medical providers as reasons to deny the reinstatement petition is not appropriate. See In re Silvern, 92 Ill. 2d 188, 194-95 (1982) (delay in payment of restitution should not be used to defeat petition for reinstatement where delay caused in part by petitioner’s inability to remember identity of insurance companies affected by his fraudulent activity).
I also believe that the majority fails to give adequate consideration to the Rule 767(f) factors that show petitioner’s good character and rehabilitation. The Hearing Board found that the petitioner’s misconduct was extremely serious and that he was an experienced attorney when it occurred. These two Rule 767(f) factors are unfavorable to petitioner’s request for reinstatement. However, the Hearing Board’s findings with respect to the remaining four factors indicate that reinstatement is nevertheless appropriate.
The Hearing Board determined that the petitioner was credible, had recognized the nature and seriousness of his misconduct, and had expressed remorse for his actions. In addition, the Hearing Board found that the petitioner had made restitution by paying Wausau $40,000 and by giving $1,200 to a charity. According to the findings of the Hearing Board, the petitioner also had been candid and forthright in presenting evidence in support of his petition, and his conduct since his disbarment demonstrated his good character. He had overcome his drug addiction and had not used illegal drugs since 1990, he had been gainfully employed since his release from prison, he had performed charitable work, and he had provided extensive care and support for his mentally ill wife and son.
Although petitioner’s misconduct was indeed serious, the Hearing Board’s findings demonstrate that petitioner presented clear and convincing evidence of his good character and rehabilitation. Accordingly, reinstatement is appropriate. See, e.g., Fleischman, 135 Ill. 2d at 497 (finding sufficient proof of rehabilitation despite the petitioner’s bribery of public officials, and 20 years of experience as an attorney); In re Berkley, 96 Ill. 2d 404, 410-11 (1983) (finding sufficient proof of rehabilitation even though the Hearing Board had characterized the petitioner’s misconduct as “so bad that it could scarcely be worse”). I would grant the petition for reinstatement and respectfully dissent from the majority’s refusal to do so.
JUSTICE FREEMAN joins in this dissent.