concurring in part and dissenting in part:
I am in agreement with the majority that the evidence relating to the post-hearing events involving petitioner Jerome Krule and a foreign student was inappropriately admitted and should not have affected the ultimate decision of the Committee on Character and Fitness (Committee). I respectfully dissent, however, from the majority’s denial of petitioner’s application for admission to the bar.
Initially, I recognize that the privilege to practice law is exactly that, a privilege and not a right. However, that privilege should not be denied absent cogent reason. Although, in reviewing the merits of petitioner’s application for admission to the bar, my colleagues note the many positive aspects of his application, they nevertheless find that “[a]s impressive as Krule’s character references and public service may be, an applicant’s subsequent exemplary behavior cannot lessen the enormity of an earlier offense.” 194 Ill. 2d at 120. After stating that petitioner’s involvement in the insurance scheme is “precisely the sort of conduct which has brought the legal profession into disrepute,” the majority concludes that Krule “failed to convince the Committee that he is not going to repeat that conduct, and he has failed to persuade us. In our view, Krule’s admission would deprecate the seriousness of his crime and undermine the integrity of our profession.” 194 Ill. 2d at 120-21.
As I studied and pondered the majority opinion, one lingering question always remained: What more could petitioner have done that he did not already do to enable him to be allowed the privilege to practice law? Stated otherwise, is there anything petitioner failed to do to justify refusing him a license to practice law? The majority does not answer this essential question. Instead, in denying Krule’s admission application, my colleagues appear to single-mindedly focus upon the seriousness of petitioner’s past offense, to the virtual exclusion of the ample amount of positive evidence presented in petitioner’s favor during the Committee hearing.
The analysis employed by the majority in assessing the merits of petitioner’s admission petition does not adhere to this court’s prior pronouncements with respect to evaluating whether an individual has shown sufficient rehabilitation of character and fitness so that an application for admission to the bar may be granted. It is well settled that, although the nature of an applicant’s past misconduct is one important consideration in assessing his or her rehabilitation, a record of felony conviction need not by itself automatically preclude one’s admission to practice law in Illinois. In re Childress, 138 Ill. 2d 87, 100-01 (1990); In re Loss, 119 Ill. 2d 186, 196 (1987); In re Mitan, 75 Ill. 2d 118, 126 (1979). Additional factors to be considered in determining a petitioner’s rehabilitation are the petitioner’s record of community service and achievements, as well as the opinions of others with respect to petitioner’s present character; the candor of petitioner before the court; petitioner’s age at the time of the offenses; the amount of time which has passed since the last offense; and the current mental state of petitioner. Childress, 138 Ill. 2d at 100; Loss, 119 Ill. 2d at 196.
Both the Committee in its findings, and the majority in its opinion, stress that although Krule presented a substantial amount of evidence in his favor during the hearing, this evidence did not overcome his 1988 felony conviction. There is no question that petitioner committed a serious offense and that he was a mature adult when he engaged in this misconduct. However, the seriousness of petitioner’s crime has already been adjudicated. The record reveals that, as part of an agreement with the prosecuting office, petitioner pled guilty to one count of theft, in exchange for his assistance in investigating the insurance scheme and for his testimony on behalf of the government against other scheme participants. At the culmination of the criminal proceedings, the trial court evaluated petitioner’s offense and sentenced him to 30 months’ probation, conditioned upon his performance of 950 hours of community service. The record also reveals that the court released petitioner early from his probation.
It is axiomatic that the seriousness of petitioner’s crime remains constant. It does not diminish with the passage of time. It is precisely because the gravity of the offense will be the same 10, 15, or 20 years henceforth— and forevermore — that this court has looked to factors in addition to the seriousness of the crime committed to determine whether an applicant has been sufficiently rehabilitated to be admitted to the practice of law. In other words, we must consider the seriousness of petitioner’s offense against the backdrop of the various indicia of rehabilitation of character and fitness. The egregious conduct of petitioner, though deserving of considerable weight, should not be the overriding factor in assessing petitioner’s fitness to practice law. The majority clearly primarily bases its decision on the crime petitioner committed more than 10 years ago.
As stated, this court has previously held that a petitioner’s community service and achievements, the opinions of others regarding his present character, petitioner’s candor about his past misconduct, and his present mental state all constitute important indicia of rehabilitation. A wealth of information with respect to these factors was introduced by petitioner during the hearing. It was established that since 1995, petitioner has performed extensive volunteer work with the Evans-ton Community Defender Office (ECDO), which provides free legal and social work services to low income Evans-ton residents under the age of 21. Robert Roy, the director of ECDO, and Judge Fe Fernandez, a former staff attorney with this organization, testified on petitioner’s behalf. Both witnesses informed the Committee that, at the time petitioner approached them about volunteering with their organization, he was very open about his background. In Roy’s words, petitioner spoke with “agonizing candor” about his past difficulties. Both Roy and Fernandez stated that petitioner acknowledged that he made serious mistakes in his past, that his involvement with the insurance scheme was wrong, and that he showed a great deal of remorse for his past misconduct. Roy testified that there was no question in his mind that petitioner accepted full responsibility for his past criminal behavior. Roy informed the Committee that he frequently discussed ethical issues with petitioner, and that he often provided petitioner with written materials concerning ethics in the law.
Both Roy and Fernandez testified that petitioner performed a wide variety of legal and nonlegal tasks while volunteering at ECDO, including answering telephones, transporting witnesses to and from court, interviewing clients for background information, serving subpoenas, conducting factual investigations, and performing some legal research. Both witnesses testified that petitioner did a very good job in completing all tasks assigned to him, that he showed genuine concern and compassion for the clients, that he communicated well with the clients, and that the clients had many positive things to say about petitioner. Fernandez testified that petitioner would make an “excellent” lawyer, and Roy stressed that petitioner took his work very seriously and had been “very responsible.” Both witnesses characterized petitioner as honest and trustworthy, and both recommended him for the bar without hesitancy or reservation.
During the hearing it was also established that for the past several years petitioner served as a volunteer tutor for adult literacy and education at both Oakton Community College and at the East Prairie School District in Skokie. Marilyn Antonik and Patricia McCarthy, the supervisors of these respective programs, testified that petitioner interacted very well with the students, who come from many different cultural backgrounds. Both witnesses attested to petitioner’s dedication to his students, with McCarthy describing petitioner as “very supportive, and concerned and caring,” and with Antonik testifying that petitioner “has gone way beyond what a tutor needs to do.” Both witnesses stated that petitioner has generously devoted his time to these programs, and described him as “trustworthy,” “sincere” and “committed.” Antonik expressed the “utmost confidence” in petitioner, testified that he conducted himself in a “professional” manner, and drew a distinction between petitioner’s sincere commitment to his students and that of other volunteers who were required to do community service and who simply went “through the motions.”
Also testifying on behalf of petitioner was Ralph Ruebner, a professor at John Marshall Law School. Professor Ruebner stated that he became acquainted with petitioner as a result of their living in the same neighborhood, and when petitioner began attending John Marshall, they struck up a friendship. Professor Ruebner testified that petitioner candidly revealed to him his past difficulties, and that Ruebner recommended that petitioner volunteer at ECDO because he felt it would “contribute to his rehabilitation process.” Professor Ruebner, a highly respected member of the legal community, expressed his belief that petitioner has “fully rehabilitated himself,” explaining that he has observed significant changes in petitioner’s behavior over the past years. Professor Ruebner stated that petitioner has “matured,” to the extent that he is very humble and expresses remorse and responsibility for his past wrongdoing. Professor Ruebner also testified that petitioner is a very caring individual, as evidenced by the type of community work he has done, as well as by the fact that petitioner is the primary caregiver for two very ill, elderly parents. Professor Ruebner concluded that petitioner would make a competent and trustworthy lawyer.
Attorney Elmer Gertz also testified on petitioner’s behalf. Gertz related that petitioner had been one of his students at John Marshall Law School and also that petitioner was a family friend. In Gertz’s view, petitioner would be an ethical and trustworthy lawyer. Gertz also testified that, because of petitioner’s adverse experiences in the past, petitioner would be keenly aware of ethical problems and would know what situations to avoid.
The final witness for petitioner was Edward O’Reilly, a sergeant with the Chicago police department and a fellow classmate of petitioner at John Marshall. Sergeant O’Reilly testified that petitioner was supportive of him during law school, and described petitioner as a “good human being” who is “kind,” “trustworthy,” “reliable,” and “honest.” O’Reilly informed the Committee that, during law school, petitioner candidly disclosed his background to him, and at that time petitioner was embarrassed and sorry for his past misconduct. O’Reilly stated that petitioner would be “an asset” to the bar, and that petitioner’s past experiences “would be a positive influence on his practicing law.” In O’Reilly’s opinion, petitioner is “fully rehabilitated,” and he would conduct himself in a law-abiding and ethical manner. O’Reilly concluded that although he always had a high opinion of petitioner, that opinion has been further increased by petitioner’s extensive volunteer community work.
Petitioner also testified during the hearing. Petitioner stated that if he were to attain a law license, he would treat it “[a]s if it were gold.” On several occasions during his testimony, petitioner expressed remorse for his past misconduct. Petitioner testified that he has “moved in every possible direction to correct that type of behavior and to make sure that it won’t happen again.” According to petitioner, his motivation for cooperating with the authorities during the insurance scheme prosecution was to “try and correct some of the harm that I did and put an end to it also.” Petitioner revealed that he testified in the criminal case involving other defendants who had participated in the insurance scheme, even though he had received death threats, and even though his agreement with the prosecution did not require him to do so. Petitioner also stated that by performing his present volunteer community service, “I’ve tried to correct what I did or do what I can to correct what I did.” Although petitioner stated that he realized that he cannot “erase” his past misconduct, he testified that “I can do everything in my power to change myself, which I have tried to do, tried to grow and develop in another direction totally, and I’m very sorry for what I did.” Petitioner also candidly admitted to the Committee that he played a “major role” in the insurance scheme, and acknowledged that he used his “insurance experience” in furtherance of that scheme. Petitioner testified that if he is ever able to practice law, his desire is to practice in the public sector, perhaps even as an attorney with ECDO.
Also submitted in support of petitioner’s application for admission were several affidavits attesting to his rehabilitation and fitness. Judge George Leighton, formerly of the United States district court and a past commissioner and chairman of the Committee on Character and Fitness, stated that he became acquainted with petitioner when petitioner was a student at John Marshall. Judge Leighton averred that petitioner is a fit applicant for admission to the bar and stressed that he does “not make this statement lightly.” Judge Leighton stated that petitioner has conducted himself in an “outstanding fashion,” and he commended petitioner for his dedication to his volunteer work and his willingness to assist those less fortunate. Judge Leighton concluded by stating that petitioner has shown a “true desire to be a productive contributing member of society” and that his conduct “demonstrates that he has been totally rehabilitated.”
Also submitting affidavits on petitioner’s behalf were several faculty members of John Marshall Law School. Robert Johnston, the dean of John Marshall, averred that prior to petitioner’s acceptance at the school, then-Dean Helen Thatcher interviewed petitioner and reviewed the circumstance of his conviction. Dean Johnston stated that, based upon conversations with John Marshall faculty and staff, petitioner was open and candid with Thatcher about the circumstances of his conviction. Dean Johnston further stated that while a student at John Marshall, petitioner conducted himself in an ethical manner and “accepted responsibility for his conviction.” Dean Johnston believes that petitioner understands the ethical obligations of the legal profession and will abide by them. Professor William Carroll averred that he became acquainted with petitioner while he was a student in three of his classes. Citing petitioner’s extensive volunteer work on behalf of indigent individuals, Professor Carroll concluded that petitioner has “conducted himself in an exemplary fashion and has demonstrated his rehabilitation.”
In sum, several highly regarded members of the legal community offered evidence in support of petitioner’s application for admission to the bar. The import of this uncontroverted evidence is that petitioner is a trustworthy and honest individual, that he has been candid about his past misconduct, that he accepts responsibility for his part in the insurance scheme, that he has expressed remorse, and that, based upon his performance and service to the community in the more than a decade that has followed his conviction, his admission to the bar should be approved. Indeed, both the Committee in its findings, and my colleagues in their opinion, acknowledge that petitioner has performed “a good amount of community service” since 1995, and that he assembled an “impressive” group of character witnesses who attested to his rehabilitation, remorse for his past conduct, and his fitness to practice law. Inexplicably, however, both the Committee and the majority discount the value of this uncontradicted evidence, and instead resort to mere speculation and unsupported conclusions as the basis for denying petitioner’s application for admission to the bar.
Indeed, this court has recently spoken against relying on speculation in the context of attorney fitness matters. In In re Eckberg, 192 Ill. 2d 70 (2000), we held that imposition of conditions upon an attorney’s continued practice of law, based on incapacity, was not warranted. We rejected the recommendation of the Review Board that, based upon the attorney’s past mental health problems, he only be allowed to practice law on the condition, inter alia, that he continue in the course of regular mental health treatment to avert a relapse. We held that “[i]t would be too speculative for this court to conclude that, in the future, respondent will experience mental difficulties which will incapacitate him from continuing to practice law.” Eckberg, 192 Ill. 2d at 89-90. Although the context of the case at bar is somewhat different from that in Eckberg, this rationale applies with equal force here, and establishes that the majority’s reliance upon speculation is inappropriate.
For example, despite the extensive amount of evidence introduced with respect to the scope, extent and beneficial value of petitioner’s volunteer work, the majority accepts the Committee’s unsupported conclusion that “the circumstances present when the insurance fraud scheme was formulated back in the 1980s provided a better insight into how Krule might perform as a lawyer.” 194 Ill. 2d at 118. The majority draws a similarly unsupported and hypothetical conclusion when it writes that petitioner’s “criminal scheme arose in the context of circumstances comparable to those with which he would be faced as an attorney, evincing an inability on Krule’s part to carry out his professional responsibilities honestly.” 194 Ill. 2d at 119. There is no basis in the record from which the majority may validly rely upon in such speculation.
Additional unsupported and speculative conclusions are accepted by the majority with respect to the motivation and sincerity of petitioner’s candor in acknowledging responsibility for his part in the insurance scheme, as well as petitioner’s remorse for his past misconduct. Completely discounting the veracity of petitioner’s testimony, my colleagues not only accept that the “Committee believed that [petitioner’s] words and actions may have been designed simply to satisfy the requirements of bar admission,” but also accept that “to the extent [petitioner] was remorseful, the Committee believed that it may have been remorse that his conduct interfered with his bar admission rather than a genuine appreciation for how his illegal conduct affected others.” 194 Ill. 2d at 118-19. Again, there is no basis in this record from which the majority can reject the evidence presented during the hearing and speculate with respect to petitioner’s motives.
Finally, the majority also accepts the Committee’s conclusion that petitioner’s work “did not entail the kind of independence or the exercise of judgment that would permit a prediction about how [he] would perform in a setting that did.” 194 Ill. 2d at 118. It appears, however, that the Committee and the majority would require petitioner to perform the impossible: to present a record of “exercise of judgment” in a legal setting, comparable to that of an attorney, when petitioner cannot validly engage in such conduct. During his testimony, the Committee inquired of Robert Roy whether petitioner, while performing volunteer work at ECDO, had occasion to make “serious judgment calls.” Roy replied that petitioner faced a dilemma, and explained that there is “a fine line there, because when you start talking about serious judgment calls, what you’re talking about is exercising discretion in the practice of law, and I never wanted to put [petitioner] in the position of doing that.” Roy further testified that in an effort to remedy this dilemma, he advised petitioner to apply for a Rule 711 license, so that petitioner could perform limited legal services under his supervision. Roy testified that after this application was rejected, he was very mindful not to place petitioner in the position where his actions could be construed as the unauthorized practice of law.
The decision of the majority to deny petitioner’s application, despite the fact that the record contains substantial, uncontradicted evidence of petitioner’s rehabilitation and present good moral character and fitness to practice law, leads me to the conclusion that, in this case, the majority has determined that regardless of the amount of positive evidence presented in petitioner’s favor, the nature of petitioner’s offense automatically precludes his admission to the bar.
The clear and unmistakable effect of denying this petitioner the opportunity to sit for the bar examination is to impose additional punishment upon him after he has been tried and served the sentence which was deemed appropriate by agreement of the court and the prosecution in his criminal case. What Justice Heiple said in his dissenting opinion in People v. Malchow, 193 Ill. 2d 413 (2000), rings true here. Although Malchow presented facts and issues different from the matter at bar, Justice Heiple’s thoughts are equally applicable here: “What matters is that the State has already had its opportunity to impose whatever measure of retribution against defendant the criminal law allows. Once an offender has served his sentence, the punishment must stop.” Malchow, 193 Ill. 2d at 432 (Heiple, J., dissenting). In the case at bar, the punishment has not stopped, but continues. One wonders whether, because of the emphasis the majority places on the seriousness of his crime many years after petitioner served the sentence given him, many years after petitioner expressed remorse, and after many years of performing satisfactorily his work in the legal arena, petitioner will ever be allowed the opportunity to obtain a license to practice law.
For these reasons, I dissent from the denial of petitioner’s application for admission to the bar.