dissenting:
After thorough analysis, the majority concludes that disciplinary action is warranted and states:
“[I]t is clear that Hilda Waalkes did not receive the kind of protection which all clients should receive in dealings in which the attorney receives substantial benefit. A totally private transaction, inadequately documented, clearly fails to rebut the presumption of undue influence which arises when the attorney benefits during the attorney-client relationship.” (91 Ill. 2d at 17.)
It then imposes a sanction of censure, determining that respondent’s conduct resulted from nothing more than “exceedingly poor judgment” and that it was an isolated event. I agree with the majority’s conclusion that disciplinary action is warranted. However, I believe that in disciplinary cases where the facts and circumstances are alike or so similar to those in a previous case, it is unfair to the persons involved to impose disparate sanctions. Consistency is possible because final responsibility for imposing discipline rests with this court.
In In re Saladino (1978), 71 Ill. 2d 263, the respondent took legal title to a house he purchased for his client and named himself the sole legatee under the residuary clause of his client’s will. With respect to respondent taking title to his client’s house, respondent prepared the deed conveying the house to his wife and himself. He testified that this action was taken so the acquisition of an asset would not jeopardize his client’s eligibility for government assistance and because his client’s poor health might require a sale at a time when she was incapable of participating in such a sale. Respondent stated that to protect his client’s interest he, at the same time the other deed was prepared, drew up another warranty deed conveying the property to his client. He also prepared a closing statement that showed her as purchaser. When the client demanded the property be placed in her name, respondent delivered the deed to her the next day at his office. This court found that the respondent may have had good intentions but, nonetheless, his conduct constituted an abuse of a fiduciary relationship. (71 Ill. 2d 263, 270.) With respect to naming himself sole legatee under the will, the court noted that respondent was named as the next responsible person when his client was hospitalized. The court did not believe the will was the result of free deliberation or that his client received independent advice. Notwithstanding the fact that respondent “may have had good intentions” with respect to the conduct regarding the house, and the lack of any indicia of fraud with respect to the will, the court suspended respondent, who had a prior unblemished record, for three months. In imposing a suspension, the court stated:
“[I] t [the length of suspension] should be closely linked to the harm caused or the unreasonable risk created by the lack of care.
Respondent did not cause actual harm; that is, complainant did not suffer any financial loss. However, she was needlessly exposed to risk of such loss: her interest in the house was unprotected, and a significant part of her estate could have gone to respondent. Where an attorney exposes a client to the risk of loss, jeopardizes the freedom or the pecuniary or privacy interests of a client, or otherwise abuses his or her relationship with a client, whether or not the attorney receives an intended advantage, the attorney has breached a duty, owed to a client, of safeguarding the public.” 71 Ill. 2d 263, 276.
In the instant case, the respondent’s misconduct was greater than that in Saladino, where no actual harm resulted. Here, the undue influence found by the majority resulted in respondent’s receipt of nearly $10,000, and financial loss to Hilda Waalkes’ estate in that amount. Moreover, here, Hilda Waalkes’ niece first questioned respondent about the $6,000 that should have been received from the annuity policy in late January or early February 1976. Respondent said he would look into it. Then, in March 1976, the niece asked respondent if he had a chance to determine what happened to the proceeds of the United of Omaha policy, which should amount to approximately $6,000. Respondent replied that it may have been put into a special account that his firm kept for clients’ funds. As noted by the majority, it was not until mid-September that respondent, submitting to requests by the niece’s attorney for materials with respect to Hilda Waalkes’ estate and information concerning the missing money, told her that he had just then remembered that Hilda Waalkes had given him the proceeds of an annuity policy in 1970 (which was for $6,133.81). The attorney for the niece also testified that, at a meeting in July 1977, respondent first denied that he had received the $6,133.81 check for the proceeds of the annuity policy. He then admitted receiving it when the attorney reminded him he had sent her a copy of a gift tax return and a gift memorandum. She also testified that at that July meeting respondent first denied receiving the $3,700 certificate of deposit check, but then admitted receiving it after the attorney told him he had endorsed the check. In addition, the Internal Revenue Service had no record of having received a gift tax return for the annuity gift. Further, respondent’s copy of the gift tax return revealed only a gift of $6,133.81, rather than the total amount of the gifts, $9,937.82.
As noted earlier, the majority held that respondent failed to rebut the presumption of undue influence and disciplinary action is, therefore, warranted. Although respondent’s misconduct did not rise to the level of that in other cases regarding breach of fiduciary relationship (see In re Anderson (1972), 52 Ill. 2d 202), I believe the actual receipt of nearly $10,000 resulting from undue influence, to the detriment of Hilda Waalkes’ estate, combined with the conduct exhibited by respondent in revealing the existence of the gifts, warrants a penalty more severe than the minimum sanction of censure imposed by the majority.
JUSTICE UNDERWOOD joins in this dissent.