also dissenting:
I strongly disagree with the majority’s conclusion that a six-month suspension is the appropriate sanction in this case. Respondent’s conduct warrants at least a two-year suspension. Additionally, I would grant the Administrator’s request that we make restitution to Nancy Week a condition of respondent’s reinstatement to the bar.
LENGTH OF SUSPENSION
Not much needs to be said in dissent, as the majority opinion reads like a dissent from its own conclusion. The majority begins its analysis by stating that respondent’s sanction should be consistent with that imposed upon other attorneys for similar misconduct. 191 Ill. 2d at 85. Next, the majority identifies four cases (Demuth, Rosin, Imming, and Goldstein) that are “instructive and relative to [its] determination of the proper sanction.” 191 Ill. 2d at 86. The majority reviews those cases, noting that each one involved a suspension of either one or two years. Thus, one assumes that the only mystery at this point is whether respondent will be suspended for one or two years. Then, in a twist that would make O. Henry proud, the majority decides not to follow its own “instructive and relative” authority and instead imposes a six-month suspension.
The majority offers several reasons for distinguishing the above cases, none of which is persuasive. First, the majority notes that the Hearing Board failed to prove that respondent engaged in fraud or misrepresentation. There were similarly no findings of fraud or misrepresentation in Demuth, Rosin, or Imming, yet Imming and Rosin were suspended for two years and Demuth was suspended for one year. In this part of its analysis, the majority also notes that respondent told Week that, if she lost money, he would indemnify her out of any contingent fee he received as her attorney in an unrelated environmental contamination suit. Why the majority puts any stock in this statement, given everything else that respondent told Week, is beyond me. Further, the record does not show that respondent returned any of Week’s money, and respondent has specifically argued throughout these proceedings that he should not have to make restitution to Week.
The majority’s next justification for its lenient sanction is that respondent himself did not borrow money from Week. Although this is a factually accurate statement, it is entirely misleading. Respondent stood to gain personally from Week’s investment in FRM, and he directly benefitted from it. Respondent’s wife invested $16,219.68 in the company, and respondent characterized this as a purchase of 10% of the company. Thus, respondent’s family was potentially facing a significant loss if FRM went under. Further, at least $3,500 of the money Week loaned to FRM went directly into respondent’s pocket. In Rosin, we stated that, “ ‘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.’ ” Rosin, 118 Ill. 2d at 388, quoting In re Saladino, 71 Ill. 2d 263, 276 (1978).
The majority’s final reason for distinguishing the other cases is that respondent had “no prior disciplinary complaints against him” and had a “reputation for honesty and integrity.” 191 Ill. 2d at 90. This sounds familiar. Goldstein had a “previously unblemished record” (Goldstein, 103 Ill. 2d at 132); Imming had a “previously unblemished record for 26 years” (Imming, 131 Ill. 2d at 261); Rosin had “no prior history of disciplinary action” (Rosin, 118 Ill. 2d at 387); and Demuth had “not been charged with any other misconduct” and had a “good reputation in the community for honesty and integrity” (Demuth, 126 Ill. 2d at 14). If these cases are distinguishable, one wonders what the majority would consider to be “on all fours.”
Respondent’s conduct in this case was absolutely reprehensible. He committed six serious breaches of the Illinois Rules of Professional Conduct and caused his client to lose $40,000. I fail to see how a six-month suspension comports with the majority’s stated desire to “impress upon others the seriousness of the misconduct at issue.” 191 Ill. 2d at 85. The majority recognizes that this type of conduct normally warrants a suspension of one or two years and then inexplicably suspends respondent for six months.
Additionally, the majority forgets to mention that, at the time of the hearing, respondent still did not concede that he had done anything wrong. In Demuth, we found it significant that the respondent did not fully understand his ethical obligations as an attorney. Demuth, 126 Ill. 2d at 15. Similarly, in Imming we based the discipline in part on the fact that the respondent did not appreciate the importance of his ethical obligations. Imming, 131 Ill. 2d at 261. Here, respondent still maintained at the time of the hearing that there was no conflict of interest in this case. Further, respondent’s petition to this court was based on his assertion that his conduct warrants only a censure. Respondent, like Imming and Demuth, deserves a suspension lengthy enough to impress upon him the seriousness of his misconduct.
RESTITUTION
Easily the most regrettable part of the majority opinion is its analysis of whether respondent should be ordered to make restitution to Week. Here, the majority merely copies the Hearing Board’s analysis, almost verbatim, without pausing to consider whether the Hearing Board’s reasoning is sound or supported by authority.
The majority contends that respondent need not make restitution because he did not commit fraud or make deliberate misrepresentations. This point is not well taken. The majority’s own “instructive and relative” authority shows that a finding of fraud or deliberate misrepresentation is not necessary for restitution to be made a condition of reinstatement. In Rosin, there were no findings of fraud or misrepresentation, and the respondent was suspended for two years and until further order of the court. The suspension would be for two years if the respondent made full restitution, with interest, to his client in the amount of her lost investment. Rosin, 118 Ill. 2d at 388-89.
Whether the attorney commits fraud or misrepresentation is not the proper inquiry. Rather, restitution is appropriate when there is an improper benefit to the disbarred attorney or a loss to some victim. In re Fleischman, 135 Ill. 2d 488, 497-98 (1990); In re Alexander, 128 Ill. 2d 524, 536 (1989). Restitution is a condition of reinstatement except in those rare instances where repayment to the victims is conclusively established to be impossible. Alexander, 128 Ill. 2d at 536.
The majority’s only other reason for denying restitution is that respondent explained some of the risks involved with FRM and that Week had more business acumen than she claimed. I searched the Rules of Professional Conduct in vain for the provision that says that an attorney owes a fiduciary duty only to those clients who are lacking in business acumen. Even assuming that Week had the business acumen of Bill Gates, what does that matter if respondent did not disclose his conflict of interest and gave her false information about what she was receiving in collateral? Respondent continually assured Week of the long-term potential of the company and induced her to invest more money to protect her previous investments. He did all of this without disclosing his unquestionable conflict of interest and while giving Week only illusory promises of security for her investments.
This is not a case about poor investment advice, as the Review Board suggested. Rather, this is a case about breaching fiduciary duties; representing multiple clients in a single matter without an explanation to each client of the risks involved; entering into a business transaction with a client without full disclosure; making statements of material fact that the attorney should have known were false; engaging in conduct that brings the legal profession into disrepute; and representing a client, without full disclosure, when the attorney’s representation is materially limited by the attorney’s responsibilities to another client and by respondent’s own interests. The sad fact of the matter is that Nancy Week lost $40,000 for no reason other than that respondent was her attorney. I would require respondent to repay this money as a condition of his reinstatement to the bar.
CONCLUSION
The six-month suspension imposed by the majority is too lenient, both on the facts of this case and in comparison to other cases involving similar misconduct. For all of the reasons stated above, and for those stated in the majority opinion, I would suspend respondent for two years and until further order of the court. This suspension would terminate at the end of two years only if respondent had made restitution to Nancy Week in the amount of $40,000.