dissenting:
“If the committee is of the opinion that the applicant is of good moral character and general fitness to practice law, it shall so certify to the Board of Law Examiners and the applicant shall thereafter be entitled to admission to the bar. If the committee is not of that opinion, it shall file with the Board of Law Examiners a statement that it cannot so certify, together with a report of its findings and conclusions.” 107 Ill. 2d R. 708(c).
This is the first time this court has deviated from its own rules and case law by reviewing, sua sponte, a bar application and denying admission to an applicant the Committee on Character and Fitness has certified as fit to practice law. In so doing, the majority ignores this court’s prior decisions which limit review of the committee’s findings to the “unlikely event that there has been an arbitrary refusal of a certificate [by the Committee on Character and Fitness].” (In re Latimer (1957), 11 Ill. 2d 327, 330, cert. denied and appeal dismissed (1957), 355 U.S. 82, 2 L. Ed. 2d 111, 78 S. Ct. 153; see also In re Ascher (1980), 81 Ill. 2d 485, 487.) In addition, the majority disregards the clear directive of Supreme Court Rule 708(c), which it shrugs off as “[u]nfortunate language” (119 Ill. 2d at 195). At the time of Loss’ certification, that rule provided that upon the committee’s certification of an applicant’s “good moral character and general fitness *** the applicant shall thereafter be entitled to admission to the bar.” (Emphasis added.) (107 Ill. 2d R. 708(c).) Rule 708(c) has been amended effective August 1, 1987, but no one suggests the amendment applies to Loss. By its opinion the majority has significantly changed the admission process without first notifying applicant Loss, law students, the bar, and the public.
The majority justifies its decision to review Loss’ application with the conclusory statement that to do otherwise would be both absurd and unconstitutional. It would be absurd, the majority states, because otherwise, “confronted with the record here, [we would be] powerless to consider the correctness of the decision to certify and would be required to blindly admit petitioner.” (119 Ill. 2d at 194.) It would be unconstitutional, according to the court, “[t]o read literally the language of the rule” for the same general reason: to do so would “divest this court of jurisdiction to review the finding of the committee *** resulting in an unconstitutional delegation of our jurisdiction and an abdication of our duty to regulate the bar of this State.” 119 Ill. 2d at 194-95.
What the majority overlooks in rejecting the clear and literal meaning of the rule is that the Committee on Character and Fitness “is an arm of this court” (In re Latimer (1957), 11 Ill. 2d 327, 330), and our own rules provide that it is a proper delegation of authority to leave the issue of an applicant’s character and fitness to the members of the committee acting as commissioners of this court. (See 107 Ill. 2d R. 709(b).) Endowing the committee with this authority under our carefully articulated rules hardly constitutes an abdication of our responsibility to oversee the bar. Of course, the court has the authority to alter or repeal its rules, but it did not bother to do so here until first departing from the existing rule. Due process demands that we follow our own rules while they remain in force, and they are binding on this court the same as on litigants. (Harris v. Annunzio (1952), 411 Ill. 124, 127; cf. United States v. Nixon (1974), 418 U.S. 683, 696, 481 L. Ed. 2d 1039, 1057, 94 S. Ct. 3090, 3101.) It is no answer to say that Mr. Loss has been afforded a hearing, for the ad hoc proceeding ordered by this court was itself fundamentally unfair. In their expressed desire to avoid an absurd and unconstitutional result, my colleagues have wrought just that.
Without explanation and on its own motion, the court issued an order on June 4, 1986, after the committee had already certified Loss as fit to practice law, “granting him leave” to file yet another petition (which he did not seek leave to file) for admission to the bar and allowing the Administrator of the Attorney Registration and Disciplinary Commission (the Administrator), who acted as attorney for the committee, leave to respond. The order, which also set a date for oral argument, was seriously deficient for several reasons.
It failed to advise Loss of how this matter even came before us. Nothing in the record indicates the source of the information which triggered this extraordinary proceeding. Such review has not taken place — in even a single instance — since I have been a member of this court. Moreover, as the majority concedes, there are no formal procedures for keeping the court apprised of an applicant’s interaction with the Committee on Character and Fitness. (119 Ill. 2d at 192-93.) The only way this court could have been advised of Loss’ situation, therefore, through an informal communication. The possibility that this unusual proceeding was initiated on the basis of rumors or gossip turns the entire admission process into a sham. It appears that those who can grab the court’s ear and are displeased with an applicant can trigger an additional inquiry, by this court itself, into the applicant’s moral character. To adequately address the question of his good character and fitness Loss has a right to know how and why his application was singled out for such special attention.
The June 4 order had another shortcoming: it failed to inform Loss of the specific issues to be addressed in the oral argument it commanded. The committee had already held a hearing in which argument was presented and witnesses subjected to extensive cross-examination. No one took exception to the committee’s findings or its certification. If the purpose of the oral argument was to address the court’s concerns — since it was the court itself which asked for further review — such concerns were never articulated. Loss was simply told to appear and to argue without any indication of what this court’s role in the process would be, or what needed to be demonstrated before he could gain admission. When Loss appeared before us personally and offered to answer the court’s questions, the court remained mute.
Since this court has never reviewed a grant of certification by the Committee on Character and Fitness, and since there is no provision for such review in our rules, we have never, as the majority acknowledges (119 Ill. 2d at 193), developed an appropriate standard for reviewing the committee’s findings. In the majority’s haste to find one, it has slipped into another error. The majority summarily discards the standard for reviewing denials of certification — arbitrary action by the committee (119 Ill. 2d at 193) — and in its place concludes that to gain admission to the bar Loss must prove by clear and convincing evidence that he has been rehabilitated and is fit to practice law (119 Ill. 2d at 194). Putting aside for the moment the wisdom of requiring such stringent proof, the error in adopting this so-called standard is that it is not a standard of review at all, but rather a burden of proof. By confusing a standard of review with a burden of proof, I respectfully submit that the majority has turned an already unconstitutional proceeding into a morass of confusion.
The findings of an administrative agency, such as the Committee on Character and Fitness, are accorded a great deal of deference. With respect to the hearing panels of the Attorney Registration and Disciplinary Commission, for example, “[w]e have repeatedly said *** that the findings of those boards are ‘entitled to virtually the same weight as the findings of any initial trier of fact.’ ” (In re Wigoda (1979), 77 Ill. 2d 154, 158, quoting In re Hallett (1974), 58 Ill. 2d 239, 250.) This is because the hearing panel alone has had the opportunity to observe the witnesses and judge the credibility of their testimony. (77 Ill. 2d 154, 158.) It is the party seeking to reverse the findings of the administrative body who has the burden of persuading the court on review that those findings are against .the manifest weight of the evidence.
In the case before us no one, not the committee, not the Administrator, not Loss, has initiated any review of the committee’s finding. It would be ridiculous to suggest that the court, which raised this issue sua sponte, ought to have this burden; but it is equally anomalous to place the burden on Loss. He has already convinced the committee below that he was fit to practice law and now seeks only to maintain the findings of the court’s own committee.
The majority suggests that the reason Loss is forced to meet such a heavy burden on review is because the showing made before the Character and Fitness committee was inadequate. According to the majority, instead of the showing all other applicants are required to meet, a “burden of proving good present moral character” (119 Ill. 2d at 195, citing In re Ascher (1980), 81 Ill. 2d 485, 498), the committee should have insisted because of his history that Loss show “by clear and convincing evidence *** that he is ready to ‘ “return” to a beneficial, constructive and trustworthy role’ in society (In re Wigoda (1979), 77 Ill. 2d 154, 159), [and] that his rehabilitation is such that he is a fit person to practice law.” (119 Ill. 2d at 195-96.) Waiting until Loss has presented his case to both the Committee on Character and Fitness and this court before announcing the applicable burden of proof is grossly unfair to Loss and violative of his due process rights because it fails to give him notice of what he must show. Further, the majority still leaves us in the dark with respect to the actual standard of review it thinks ought to be applied. Its decision here seems to approve of some aberrant form of de novo review where a decision is made without deference to the findings of the administrative body.
But even assuming that all of these procedures were proper, the heavy burden of proof the majority applies here is inappropriate. Proof by clear and convincing evidence is the same showing a disbarred attorney seeking reinstatement must demonstrate. Unlike the attorney petitioning for reinstatement, however, an applicant in Loss’ position has never breached nor abused a position of public trust such as an attorney occupies. Considerations involved in determining whether to readmit a disbarred attorney to the practice of law, such as the impact of the attorney’s misconduct on the legal profession, the public, and the administration of justice, are not applicable here. See, e.g., In re Zahn (1980), 82 Ill. 2d 489, 493.
Further, it is difficult to justify such a burden of proof, a showing rarely required by either a court or an administrative agency, without good reason. Proof by clear and convincing evidence is required, for example, to void a will on the ground of fraud or undue influence. (See, e.g., Weininger v. Metropolitan Fire Insurance Co. (1935), 359 Ill. 584, 598.) The reason for requiring a strict showing is obvious. Not only is such evidence easy to fabricate, but the primary witness is, unfortunately, unavailable to testify. Similarly, we require a disbarred attorney to make this type of showing because he has previously misused the trust this court placed in him and has been found unfit to practice. Faced with that record, prudence requires an attorney seeking reinstatement to demonstrate by clear and convincing evidence that he is fit to be trusted. A review of the committee’s grant of certification in favor of Loss, however, presents none of these problems. There has never been a finding of breach of the public trust which the petitioner seeks to overcome.
Even applying the inappropriate standard, however, the court is still obliged to admit Loss since he has demonstrated by clear and convincing evidence that he is rehabilitated and fit to practice law. At the hearing before the Committee on Character and Fitness, Loss presented 15 witnesses. This group of witnesses who attested to his good moral character and rehabilitation included the Honorable George N. Leighton, a judge of the United States District Court for the Northern District of Illinois, who serves with distinction on that court as he did on both the Illinois Appellate Court and the circuit court of Cook County, and who was a former chairman of our Committee on Character and Fitness. Judge Leighton, who had the opportunity to supervise Loss when Loss participated in an extern program in law school, appeared in person before the committee and testified:
“Mr. Loss showed me in many ways on many occasions that he is trustworthy. I would highly recommend Edward Anthony Loss because of his outstanding qualities character. In my judgment he has those traits with which experience will make him a great lawyer and a distinguished member of our profession.”
Loss’ last arrest occurred in 1975, more than 12 years ago. Within the past six years he not only completed law school with an outstanding record, but he also started his own business where he helped rehabilitate ex-convicts and ex-drug addicts by providing them with jobs. While, as the majority states, Loss was not-totally candid about his past on his application to the DePaul College of Law, the dean of that school testified that Loss was fit to become a member of this bar. Besides, Loss’ application to DePaul was filed in 1980, approximately seven years ago. Under our rules even an attorney who has been disbarred may file for reinstatement after five years. (107 Ill. 2d R. 767.) Therefore, his law school application should not preclude Loss from being admitted to the bar.
The Administrator presented no witnesses at the hearing before the committee. In denying Loss’ application, the majority points out that his marriage was dissolved subsequent to the hearing. (119 Ill. 2d at 197.) How this is relevant to Loss’ fitness to practice law escapes me. While I have no statistics on the number of divorced attorneys practicing in this State, I am certain that there are many. It would be preposterous to suggest that these attorneys should surrender their law licenses along with their marriage certificates as if, somehow, the dissolution of their marriages obliterated their ability to competently practice law. It is equally absurd to assume the same with respect to Loss’ divorce.
The majority also relies on information supplied by the Administrator subsequent to the hearing that “if proved, may be relevant to issues 'of rehabilitation and present good moral character.” (Emphasis added.) (119 Ill. 2d at 197.) The newly discovered evidence which the Administrator argues revealed additional misrepresentations by Loss is a mortgage application and supporting documents executed by Loss on May 15, 1986. These documents, according to the Administrator, indicate that Loss is not destitute and establish that he was more than able to pay his attorney fees. Thus, the Administrator alleges that a letter Loss sent to the court on or about June 9, 1986, which prompted our voluntary offer to cover these costs, was a deliberate misrepresentation and demonstrates that Loss is unfit to practice law. The letter, which Loss wrote five days after the court advised him sua sponte that it had decided to review his application and hold oral argument, informed us:
“Unfortunately, the financial exigencies of running a business and rearing a family preclude any further expenditures in the above captioned cause. Should the court see fit to award me costs and fees to pursue the matter further, I will certainly do so. Absent such an award, or pro bono intervention, I am unable to continue prosecution of the case. Accordingly, I ask to be sworn in, consistent with promulgated court rules, or, in the alternative, for a definitive finding by the court that I am not of good, present moral character based on the record of the case.”
It was a matter of record before the committee that both Loss and his wife were gainfully employed and owned a home. Further, while the Administrator asserts that these documents establish Loss’ net worth at $209,000, other evidence indicates that he has liquid assets of approximately $4,000. But regardless of the exact amount of Loss’ holdings, his reference to financial exigencies was not only a far cry from a claim of indibut also grossly inadequate proof of an intent to defraud this court. In my view, this letter was written in response to our decision to disregard both our case law and rules. It served simply to inform us of the choice Loss made: he decided not to expend any more of his resources in pursuing admission to the bar and would not participate in this highly exceptional proceeding unless we awarded either pro bono assistance or fees to offset the costs. The court responded by stating it would cover the fees and costs. Loss was entitled to make this choice, and there is no justification for seizing upon his communication to conclude, as the Administrator argues, that Loss intended to deceive this court. I fail to comprehend how the majority’s decision to deny Loss admission to the bar on this ground can be supported under any rational concept of judicial review.
The information submitted to the court subsequent to the hearing is both unproved and irrelevant, and the omissions in Loss’ application for admission to the bar are insignificant. Where the findings and recommendations of the committee are “ ‘based on uncontradicted and clear evidence,’ they will be adopted.” (In re Wigoda (1979), 77 Ill. 2d 154, 159, quoting In re Phelps (1973), 55 Ill. 2d 319, 322.) Since no evidence contradicts the committee’s finding, even under the inappropriate standard the majority imposes there appears to be no fair basis for impeaching the committee’s determination that Loss is fit to practice law.
The majority’s final suggestion, inviting Loss to reapply immediately for admission (119 Ill. 2d at 197), strikes me as paradoxical. What showing could Loss make upon . a reapplication other than what he has already submitted? The court speaks of an inquiry into Loss' conduct since the hearing was held a year ago, but nothing before the court even hints at anything Loss has done in the past year which adversely reflects upon his fitness. Of what significance is the court’s suggestion that the committee consider Loss’ candor in filling out his new application when the majority concedes that his previous application was candid? (119 Ill. 2d at 191.) Finally, the majority suggests that if a new application is received, the committee consider Loss’ candor in responding to whatever inquiry the committee makes. Yet there is no proof that Loss was less than candid when he testified before the committee last year. I fail to understand what could be accomplished by a new application except to further delay Loss’ admission. In my opinion a second hearing would be a useless gesture.
Edward Anthony Loss will not be permitted to practice law in this State, not because he has failed to follow the rules, but because we have. The court’s departure from any concept of fairness or regularity has been complete, and I would say, almost Kafkaesque. Mr. Loss was forced to appear at an inquiry of a type which has never been convened before or since to defend himself against unknown charges. Unfettered by a previously announced standard of review or any rules as to admissibility of evidence, the court has now determined, not surprisingly, that its initial concerns as to Loss’ fitness were justified. The court has misused its authority, and I dissent.