dissenting:
I find that the sanction imposed by the majority is not commensurate with the misconduct of respondent. This' court has held that “[wjhen a lawyer *** converts a client’s funds to his own personal use he commits an act involving moral turpitude, and, in the absence of mitigating circumstances, such conversion is a gross violation of the attorney’s oath, calling for the attorney’s disbarment.” In re Stillo (1977), 68 Ill. 2d 49, 54.
We are confronted, in the instant case, with a lawyer who deposited clients’ money in a general business account, rather than an identifiable trust account, in total violation of the prohibition against commingling codified in Rule 9 — 102 of the Code of Professional Responsibility (87 Ill. 2d R. 9 — 102). Moreover, by depleting the account to a level below the amount due the client, respondent was guilty of conversion. (In re Freel (1982), 89 Ill. 2d 263, 272.) A great deal of attention has been given to “motivation” in the disposition of this case. Motive is not an element in disciplinary actions for conversion. This court has, however, found it appropriate to consider dishonest motive in its determination of the nature and severity of sanctions to be imposed in such cases. In re McLennon (1982), 93 Ill. 2d 215, 221; In re Clayter (1980), 78 Ill. 2d 276, 283.
Both the hearing and review boards found that respondent’s misconduct was not inadvertent or “technical” but rather the result of dishonest motive. The majority concurs that respondent’s motives were dishonest regarding the withholding of the doctors’ fees but does not find that dishonest motive was clearly and convincingly proved regarding respondent’s dealings with his client. (98 Ill. 2d at 139-40.) I find the hearing and review boards’ finding of dishonest motive and intent in relation to the client fully supported by the facts and circumstances herein.
“Motive and intent are rarely the subject of direct testimony; they must ordinarily be inferred from conduct and from the circumstances under which that conduct took place.” {In re Schwarz (1972), 51 Ill. 2d 334, 336.) It strains the imagination to believe that respondent was unaware, for over four months, that the $4,027.92 check he had issued to his client had been returned “NSF” (not sufficient funds). Certainly the burden is not on a client to complain, as inferred by the majority, in order for the court to conclude that dishonest motive is present. Respondent deposited the $7,000 settlement draft into a business account which he knew had a history of overdrafts. In addition, he expended all but a small percentage of the settlement funds within one week of deposit while waiting more than four months to make restitution.
While the specific facts of every case must be considered, “predictability and fairness require a degree of consistency in the selection of sanctions for similar types of misconduct.” (In re Saladino (1978), 71 Ill. 2d 263, 275.) Respondent has engaged in a pattern of commingling funds of clients, converting these funds, and failing to promptly pay funds owing to both clients and doctors. This court has imposed more stringent sanctions than an 18-month suspension in cases involving similar or less egregious misconduct.
In In re Grant (1982), 89 Ill. 2d 247, respondent, in four instances, converted funds collected in settlement of clients’ personal injury claims. As in the instant case, settlement checks were deposited in accounts which were utilized for personal and business purposes as well as for clients’ funds. In addition these accounts were either overdrawn or below the amount due clients on numerous occasions during the relevant periods. The respondent failed to promptly pay clients the money to which they were entitled. In two instances NSF checks were issued to clients. The respondent in Grant was involved in four counts of conversion, as opposed to the 29 acts of conversion involved in the instant case. Notwithstanding the less aggravated circumstances and substantial evidence of good character, the court imposed a two-year suspension in Grant.
In In re Smith (1976), 63 Ill. 2d 250, a $69,999 settlement check had been deposited in a lawyer’s personal bank account, with the consent of his client. After forwarding $9,000 of the proceeds to the client, the lawyer made unauthorized personal use of the balance of the funds. Only after the commencement of disciplinary proceedings was the client fully reimbursed. Although the respondent in Smith had converted the funds of only one client, the court found disbarment an appropriate sanction.
The pattern of misconduct involved in In re Snitoff (1972), 53 Ill. 2d 50, closely resembles the facts and circumstances of the instant case. The respondent in Snitoff was disbarred for repeated acts of conversion. He was found to have issued NSF checks to clients as the proceeds of personal injury settlements, failed to promptly forward one client’s share of a settlement, and failed to remit the entire amount due another client. As in the instant case, the respondent in Snitoff was found to have converted funds which he had withheld from personal injury settlements to satisfy medical expenses of the client. The court held that the sanction of disbarment was appropriate in spite of the respondent’s plea of fiscal ineptness rather than dishonest motive. Respondent’s conduct, in the case at bar, is at least as aggravated as that displayed in Snitoff
Although significant evidence of good character has been offered in mitigation in the instant case, such evidence cannot overcome the clear and convincing evidence of misconduct. (In re Melin (1951), 410 Ill. 332, 335.) Respondent’s misconduct reflects a pattern of conversion involving dishonest motive and a “continuing and consistent disregard for the property rights of his clients.” (In re Snitoff (1972), 53 Ill. 2d 50, 53.) After reviewing the cases discussed above and the particular facts of this case, I believe that an order of disbarment is a more appropriate sanction than the suspension ordered by the majority.
JUSTICE UNDERWOOD joins in this dissent.