dissenting:
I dissent from the majority’s decision to suspend respondent from the practice of law for three years and until further order of court. In my opinion, such a sanction is, under the facts of this case, unduly harsh and significantly more punitive than sanctions imposed in other cases for conduct more egregious than the misconduct of which respondent is guilty in the case at bar.
This court’s "primary consideration in determining the nature and extent of discipline to be imposed in any particular case is the protection of the public and the integrity of the profession” (In re Kramer (1982), 92 Ill. 2d 305, 311). "The 'public’ which is to be protected through disciplinary measures is comprised of the public at large, but primarily consists of those who are directly affected by the attorney’s professional conduct.” (In re Towles (1983), 98 Ill. 2d 179, 185-86.) "In determining the appropriate discipline *** this court should not impose a sanction which will benefit neither the public nor the legal profession.” In re Leonard (1976), 64 Ill. 2d 398, 406.
Although respondent made a serious error, I believe that the majority’s sanction is grossly disproportionate to the sanctions this court has imposed upon other lawyers who have engaged in similar or worse acts of misconduct. Respondent might have fared better before this court if her dishonesty took the form of willfully failing to file tax returns for three years (In re Towles (1983), 98 Ill. 2d 179 (censure); lying to clients about the dismissed status of their appeals (In re Ring (1990), 141 Ill. 2d 128 (six-month suspension); or falsifying an insurance claim for monetary profit in violation of Federal mail fraud laws (In re Williams (1986), 111 Ill. 2d 105 (two-year suspension)). Respondent might have been accorded more lenient treatment if she were a former State’s Attorney who abused drugs for years while prosecuting crime (In re Sims (1991), 144 Ill. 2d 323 (two-year suspension)); a former prosecutor who masterminded a scheme of voter signature forgery to place a referendum on the ballot (In re Armentrout (1983), 99 Ill. 2d 242 (two-year suspension)); a judge who solicited loans from an attorney without disclosing the loans on his declaration of economic interest statement (In re Witt (1991), 145 Ill. 2d 380 (six-month suspension)); or even an attorney who loaned money to a judge to influence his decisions (In re Ketchum (1988), 124 Ill. 2d 50 (two-year suspension)).
The key focus of this or any disciplinary action must be the imposition of an appropriate sanction. This court has stated, "While each case of attorney misconduct is unique and requires an independent evaluation of its relevant circumstances [citation], predictability and fairness require consistency in the sanctions imposed for similar conduct.” (In re Cheronis (1986), 114 Ill. 2d 527, 535.) Both the Hearing Board and Review Board, after considering all of the evidence, determined that a six-month suspension was the appropriate sanction to impose in this case. I see no reason to depart from that determination. Accordingly, I dissent.
The undisputed facts reveal that respondent, who grew up having little contact with her father, was a child of 14 years when she gave birth to her own child. She married at age 15, began working, and soon had a second child. Respondent and her husband separated after three years, and from that time forward she provided the sole support for herself and her children. Notwithstanding her tremendous obligations she enrolled in college and was graduated, with honors, in three years, from the University of Illinois at Chicago. She then attended New York University School of Law, with an academic scholarship. She gave birth to a third child while in law school. Despite the difficulties of balancing her studies with the travails of single-parent child-rearing, respondent successfully completed law school and obtained her license to practice law in New York. Thereafter, respondent worked for one year as a law clerk for the United States Court of Appeals for the Second Circuit. There she reviewed pro se filings and prepared legal memoranda and made recommendations to a judge. The majority opinion refers to a dispute over whether respondent left voluntarily or was asked to leave. This matter was not mentioned in any of the briefs as relevant to the issues involved in this appeal. In fact, the record reveals that the chairman of the inquiry panel who reviewed both respondent’s explanation and her supervisor’s view of the circumstances of respondent’s leaving "fe[lt] that the response from the employer [was] a matter of overzealousness.” The members of the inquiry panel of the Committee on Character and Fitness unanimously voted to recommend respondent’s certification to the Illinois bar.
Further, there were many other highly positive responses that were received by the Character and Fitness Committee regarding respondent’s application for admission to the Illinois bar. For example, the affidavit of a supreme court justice in New York, for whom respondent performed law clerk services as a "Root-Tilden scholar” nr 1981, stated that respondent "ha[d] an impeccable sense of honesty[,] *** the highest degree of morality and integrity[,]” and was never disciplined while in his employ, "only praised.” The justice expressed high regard for respondent’s intellectual and analytical gifts and her maturity and idealism.
Attorney William Kunstler submitted an affidavit stating that respondent was an intern at his law firm and under his supervision from February 1982 to May 1983. He found respondent "scrupulously honest,” with "highest” integrity, and her general conduct "eminently satisfactory.” She left his office upon accepting employment with the Second Circuit. In his affidavit he states, "The applicant is an extremely hardworking and socially conscious person. She gives unstintingly of herself, without complaint or excuse. I believe most wholeheartedly that she will be an asset to the Illinois bar.”
An affidavit from Lennox S. Hinds of the New York law firm of Steven, Hinds & White, for whom respondent worked as an attorney from January 1985 to July 1986, stated that respondent "could be completely trusted on all assignments [and] at all times exhibited the highest integrity.” Further, "Ms. Chandler conducted herself with the highest degree of professionalism,” and was never disciplined while in the firm’s employ. She left the firm to relocate in Illinois. Hinds stated his firm could entrust respondent with the "most sensitive matters” and relied on her "highest degree of professionalism” and "enthusiastically” recommended her admission to the Illinois bar. As stated, the members of the inquiry panel of the Character and Fitness Committee voted unanimously to recommend respondent’s certification to the Illinois bar.
Before returning to Chicago, respondent worked as a defense lawyer in a Federal case in which she earned a fee of approximately $30,000. At the time respondent falsely represented her salary and employment relationship with Nathaniel Howse, she in fact was working for him on an independent contractor basis. She had worked with Howse on a death penalty case and she anticipated working with him on other matters. She worked for the ACLU for approximately eight months. Her next employment was with the public defender’s office, where she was employed at the time of the hearing.
Respondent passed the Illinois bar examination in February 1987. Her admission to the bar was approved in April 1988. In August 1987, respondent applied for a mortgage loan on a home in Chicago, using falsified documents and false information relating to her income and employment status at that time. In her sworn deposition of record, respondent stated that she knew she could afford the payments because she had good, marketable skills and had received a $30,000 judgment for attorney fees. She expressed remorse for her misconduct, realizing that what she did was "terribly wrong” but also that she made every effort not to cause loss to the lender. She maintained the house in good condition for the short time she was there, secured insurance, and attempted to work out a payment plan with the lender, offering to make two or three payments at a time. Respondent also explained that she believed that the house she purchased for her three children and herself was a necessity, not a luxury item. Her deposition further indicates that she had paid up to $700 in rent for apartments with inadequate heat, and that many landlords would not rent to her because of her children.
Respondent’s professed difficulties in obtaining financing for a house do not excuse her misrepresentations to the bank. However, it appears respondent believed she would find adequate employment and she anticipated using the legal fee she had earned in New York to meet her monthly mortgage payments. Although respondent obtained the mortgage loan under false pretenses, it is worthy of note that she did not intend to deprive the bank of its fees, interest, or principal loan amount. Respondent was not in financial default, the lender called the loan upon learning of her falsified employment record. Indeed, respondent had tendered the initial mortgage payment, which the lender refused. The lender did not include allegations of fraud in the foreclosure action, which proceeded without contest. Respondent’s actions — although designed to induce the mortgage lender to approve her loan through the fabrication of her employment record and income— were not calculated to cheat the mortgage lender of its money and did not result in economic loss to the lender. In fact, the lender was willing to refinance the loan if respondent met its demand for a greatly increased down payment. She was not able to make the substantially increased down payment.
At the disciplinary hearing, respondent presented favorable testimony from four character witnesses. The assistant dean of students at the University of Illinois in Chicago testified that respondent’s academic integrity while an undergraduate student was beyond reproach and that she tutored minority students. Respondent’s uncle, a police sergeant, testified that when respondent moved back to Chicago in 1986 she performed community services, particularly with the homeless and senior citizens. He said she was a role model for others in the community, including her niece, who enrolled in law school as a result of respondent’s guidance. Both judges who appeared at the hearing gave favorable testimony regarding respondent’s professional performance and honesty. Respondent introduced work evaluation forms that her supervisor had completed. These evaluations rated her integrity and professional performance highly.
The Hearing Board characterized respondent’s actions as "elaborately designed to deceive Mid-America Mortgage Company” into making the loan. The Review Board also recognized the gravity of respondent’s conduct in making intentional and material misrepresentations in her lqan application. Nonetheless, the eight members of the Review Board agreed with the three-member panel of the Hearing Board that a suspension of six months was the appropriate sanction under all of the circumstances. I disagree with the majority’s decision, which augments the six-month suspension with an additional 21h years without citing to any specific facts or cases that might justify the increased penalty, beyond the newly announced sanction for failure to update bar applications.
Although acknowledging respondent’s cooperation, remorse, previously clean record, and absence of loss to the lender, the majority denigrates respondent’s motive in attempting to obtain the loan, which the majority notes was "to provide safe, affordable housing for her family.” The majority concludes, "We must, however, reject as morally flawed respondent’s assumption that the purity of her motive may excuse her misconduct, and as empirically flawed her premise that such housing could not be obtained through honest means.” 161 Ill. 2d at 476.
Nothing in the record indicates that either the Hearing Board or Review Board found that her motive excused her misconduct. Neither Board took evidence, empirical or otherwise, to determine the ease with which respondent could have obtained adequate housing. Her stated reasons or purpose, in deceiving the mortgage lender, are irrelevant to the initial inquiry into her undisputed violation of the Rules of Professional Conduct. The sole relevance of respondent’s explanation of purpose or motive goes to the determination of the appropriate sanction to be imposed.
The cases reveal that evidence of motive can be either a mitigating factor (e.g., In re Walner (1988), 119 Ill. 2d 511, 525 (censure given to lawyer who settled client’s claim without consent and for signing client’s name, without authorization, where no prejudice resulted and attorney acted out of a "misguided sense of efficiency”)) or a factor in aggravation (e.g., In re Karzov (1988), 126 Ill. 2d 33, 43-44 (18-month suspension imposed because respondent’s motives in loaning money to Judge Holzer "were designed to influence Holzer in judicial decisions”); In re Ketchum (1988), 124 Ill. 2d 50 (two-year suspension of attorney who made repeated loans to Judge LeFevour, then presiding judge of a district in which respondent had numerous cases pending); cf. In re Corboy (1988), 124 Ill. 2d 29 (no discipline imposed, in part based on finding that the six respondents lacked improper motives in giving or loaning money to Judge LeFevour, to help pay the medical expenses of the judge’s mother)).
Although this court should not overemphasize the significance of an attorney’s motive in disciplinary cases, it is appropriate to ponder which causes greater harm to the public’s faith in the justice system: lawyers who give things of value to influence judicial decisions, thereby threatening the integrity of the legal system, or a single-parent lawyer who obtains a home mortgage under false pretenses, to ensure that her family has a decent place to live.
The majority finds it "of no moment” that respondent’s misconduct involved her personal life as opposed to her professional duties. (161 Ill. 2d at 473.) I agree that lawyers’ conduct in their private lives, to the extent such conduct reflects on their professional integrity and competence, is a legitimate concern of the disciplinary commission and this court. (See In re Lamberis (1982), 93 Ill. 2d 222 (censuring attorney who plagiarized, verbatim, more than half of his thesis for an advanced degree in law).) Even though a lawyer’s conduct may be violative of the Rules of Professional Conduct, irrespective of whether the misconduct occurs in the lawyer’s private life or professional practice, the degree of harm to the public and the profession may differ significantly. Attorneys who cheat their clients betray the relationship of trust that is the sine qua non of the attorney-client relationship. (See, e.g., In re Rotman (1990), 136 Ill. 2d 401, 420 (attorney disbarred after making calculated decision to convert $15,000 from estate of incompetent); In re Rosin (1987), 118 Ill. 2d 365 (attorney suspended for two years for inducing client of limited intelligence to invest in company controlled by attorney’s close friend, who was a judge); In re Lewis (1990), 138 Ill. 2d 310 (attorney disbarred for lengthy pattern of egregious misconduct which extended over seven years and involved five different clients and at least 18 acts of misconduct).) In the instant case, respondent did not take advantage of any client. She did not cause economic loss to her creditor.
The majority opinion, citing In re Williams (1986), 111 Ill. 2d 105, 117, states, "The fraudulent act of an attorney acting in his own behalf in which he seeks personal gain, directly or indirectly, to the detriment of honesty, is no less reprehensible than when he acts on behalf of his client.” (161 Ill. 2d at 473.) In Williams, the attorney’s dishonesty in his personal life gained him thousands of unearned dollars that he collected from his own insurance company through a falsified claim that his car had been stolen. After his conviction for mail fraud, the respondent received a two-year suspension from the practice of law that coincided with his service of conditional probation on the Federal conviction.
In the instant case, respondent obtained a mortgage loan under false pretenses, but she remained obligated and willing to repay the loan. In contrast, the respondent in Williams participated in an insurance scam in which the company paid out money for a car that had not been stolen. Respondent’s personal gain — the ability to obtain financing for a house for her family — differs in kind from that in Williams. Nevertheless, the majority of this court imposes on respondent a period of suspension in excess of that given to Williams.
The majority correctly notes that sanctions for violating Rule 1 — 102(a) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) range from censure to disbarment. Such a statement, while true, is of little assistance in determining what the appropriate sanction should be in a given case. In considering the issue of the proper sanction to be imposed on respondent for her conduct in connection with the mortgage loan, the majority cites two cases in which the sanction for deceit was censure (In re Stern (1988), 124 Ill. 2d 310 (falsely dated letter); In re Lamberis (1982), 93 Ill. 2d 222 (plagiarism)), one case in which suspension was imposed (In re Williams (1986), 111 Ill. 2d 105 (mail fraud conviction)), and three cases of disbarment (In re Bell (1992), 147 Ill. 2d 15; In re Vavrik (1987), 117 Ill. 2d 408; In re Braner (1987), 115 Ill. 2d 384). These latter three cases, resulting in disbarment, illustrate extraordinarily egregious conduct of a type not present in the instant case.
In Bell, the respondent was indicted for filing false loan applications with five different banks over a period of more than one year. He pleaded guilty to two counts of a Federal indictment. He also filed a false affidavit before the Supreme Court of Tennessee, in which he concealed that he was licensed to practice in Illinois; this court found the false affidavit to be a fraud on the high court of Tennessee as well as the Illinois Supreme Court. (Bell, 147 Ill. 2d at 38.) In addition, the respondent kept thousands of dollars in fees for cases he never pursued and let at least one criminal appeal be twice dismissed for want of prosecution. This court observed:
"[The] respondent seriously neglected the cases of seven clients, three of which were criminal cases. *** Furthermore, many of respondent’s clients in the civil cases were prejudiced by respondent’s neglect [because their cases were dismissed and their claims consequently time-barred], ***
Moreover, all of the client-complainants in this case were repeatedly misled by respondent concerning the status of their cases. ***
Finally, respondent gave a false written response to the Administrator in regards to [a client’s] complaint. Respondent repeated this false response in his sworn statement before the Administrator.” Bell, 147 Ill. 2d at 39.
In Vavrik, the respondent, president of a title insurance company, converted escrowed fees belonging to clients for his own use and was convicted of grand theft. He and his partner, the owner of the title company, collected and deposited money in the company’s escrow account and then wrote checks to fictitious payees, forged the payees’ signatures, and endorsed and cashed the checks. In this manner, more than $53,000 was misappropriated. Respondent also gave false testimony in the disciplinary hearings in which he was disbarred.
In Braner, an attorney was disbarred for defrauding his client’s mentally incompetent wife, to whom the attorney owed a fiduciary duty as a former employee of the bank that was the conservator of her estate. The attorney also defrauded the Department of Public Aid and the courts in both the probate proceedings in which the wife was declared mentally incompetent and the court in which respondent obtained the dissolution of the wife’s marriage, which left her without income or assets.
Without describing the factual context in which the above three cases were decided, the majority in the case at bar cites these cases for the principle that "acts of intentional fraud are sufficient grounds for disbarment.” (161 Ill. 2d at 473.) In the instant case, respondent’s acts, though intentional, are not even remotely comparable to the cited disbarment cases. Therefore, the majority’s general citation to such cases is of limited avail.
The number of attorney disciplinary cases precludes a comprehensive listing, in this dissent, of the severity of sanctions imposed on attorneys for deceitful conduct. However, a sampling of cases reveals that many attorneys charged with dishonest conduct have received significantly lesser penalties than that imposed in this case. Censure, rather than suspension, has been imposed in cases of intentional or knowing deceit where the "actual harm” resulting is considered slight. For example, this court censured an attorney who knowingly negotiated a settlement check containing a forged endorsement. (In re Levy (1987), 115 Ill. 2d 395.) In Levy, this court stated that "no harm was done” because the client’s husband admittedly lacked a legal interest in the settlement proceeds and the insurance company that issued the check suffered no loss; such absence of harm was a "significant consideration” in determining the sanction. (Levy, 115 Ill. 2d at 400.) In the instant case there is no suggestion that the lender was economically harmed. Respondent forfeited her $5,000 down payment and did not contest the foreclosure action.
In In re McAuliffe (1987), 116 Ill. 2d 254, a former judge was merely censured after being charged with conduct involving fraud, deceit, misrepresentation, prejudice to the administration of justice, moral turpitude, and false statements with the intent to obstruct an inquiry. The charges stemmed from the respondent’s settlement of a fee dispute with another attorney, respondent’s former business partner. To settle, respondent agreed to recant his prior sworn testimony against the other lawyer before the ARDC. The Hearing Board recommended reprimand in light of substantial mitigating circumstances involving the respondent’s extreme mental and physical impairment at the time of the incident. The Review Board recommended a six-month suspension. This court chose censure as the appropriate sanction, noting that although the intentional recantation of sworn testimony in exchange for financial gain could not be justified, respondent’s misconduct did not result in any "real harm.” (McAuliffe, 116 Ill. 2d at 262.) The court also took note of the mitigating circumstances, including the respondent’s impairment and subsequent rehabilitation, his unblemished record, and the testimony of character witnesses.
In the instant case, respondent was not suffering from the type of physical and mental breakdown that provided the basis for the minimal sanction in McAuliffe. Nevertheless, respondent’s freedom from disabilities should not be the factor that distinguishes her three-year suspension from McAuliffe’s censure. Respondent also had an unblemished record and character witnesses and it would appear that her misconduct resulted in no more "real harm” than did McAuliffe’s.
Censure has been imposed in cases involving willful failure to file Federal tax returns. (E.g., In re Towles (1983), 98 Ill. 2d 179 (court censured an attorney convicted of willful failure to file Federal income tax returns for three years; respondent had a history of pro bono and community work and court noted that respondent’s misconduct was caused by either negligence or ignorance). See also In re Eisenberg (1984), M.R. 3074 (attorney censured after pleading guilty to providing false information to the Internal Revenue Service).) Is the criminal conviction for furnishing false information to the Internal Revenue Service less reprehensible than furnishing false information to a bank?
A suspension of five months was imposed on two attorneys who, like respondent in the instant case, provided false information to a bank to obtain a loan. (In re Gabriele & Villadonga (1992), MR 8236.) There is no evident justification for this court to impose a three-year suspension and until further order of court on respondent, in the instant case, and only a five-month suspension on the two lawyers in Gabriele & Villadonga.
In other cases, brief suspensions have been ordered where attorneys compounded their neglect of criminal appeals with affirmative misrepresentations to clients or cover-ups of their misconduct in disciplinary hearings. In re Ring (1990), 141 Ill. 2d 128 (six-month suspension for abandoning criminal appeal, which was dismissed, and then misrepresenting the status of the case to the client); In re Hall (1983), 95 Ill. 2d 371 (three-month suspension for lawyer who failed to pursue criminal appeal, which was dismissed, and then lied about it under oath to the ARDC).
An Illinois attorney who served as consul general to the Republic of Iceland received a six-month suspension for repeatedly deceiving his co-counsel about receipt of a settlement in which they were to share. The respondent deposited the check into the consular account of Iceland, out of reach of the clients’ creditors and respondent’s co-counsel, and "stubborn[ly] insist[ed]” on "impeding the disciplinary” proceedings brought by the ARDC. (In re Johnson (1989), 133 Ill. 2d 516, 536.) The court stated it was not imposing a more severe sanction because of the respondent’s 42 years of practice with "an otherwise unblemished record.” Johnson, 133 Ill. 2d at 537.
Another category of cases, in which longer suspensions have been given, involves an abuse of the public trust by attorneys charged with enforcing the criminal laws. A Kane County State’s Attorney who organized a massive forgery of signatures on a voters’ referendum petition was suspended from the practice of law for two years. (In re Armentrout (1983), 99 Ill. 2d 242.) Notably, the court imposed far lesser sanctions on the attorneys who assisted him in forging voter signatures; his chief assistant was suspended for six months and a second assistant State’s Attorney and two attorneys in private practice were censured. Armentrout, 99 Ill. 2d at 254-56.
The State’s Attorney of Perry County was suspended for two years for his open use of cannabis and cocaine during his five years as a prosecutor. (In re Sims (1991), 144 Ill. 2d 323.) He resigned from his office in exchange for authorities’ agreement not to indict him. Cf. In re Scarnavack (1985), 108 Ill. 2d 456 (censure imposed on attorney convicted of a count of possession of cocaine; mitigation included respondent’s remorse, finding that the crime was an isolated incident, and testimony of character witnesses).
Neither Armentrout nor Sims, prosecutors who abused the public trust, received as harsh a sanction as does respondent in the instant case.
The majority cites three cases in which suspensions of three years were imposed on attorneys who participated in elaborate conspiracies to defraud. (In re Sherre (1977), 68 Ill. 2d 56; In re Grossgold (1974), 58 Ill. 2d 9; In re Alschuler (1945), 388 Ill. 492.) According to the majority, the conduct of the attorneys in these cases resembles that of respondent in the instant case because each attorney participated in "elaborate schemes to defraud,” but "unlike the present respondent ***, the attorneys in those cases were not the principal architects of the schemes.” (161 Ill. 2d at 475.) Notably, Sherre and Grossgold were convicted of mail fraud for their roles in extensive conspiracies involving insurance companies and conversion of funds. Alschuler participated in a scheme of five years duration, in which he agreed to "kick back” half of his annual retainer paid by public utilities so that officials of the utilities could set up a secret fund, concealed on the books and records, for their own use. Unlike respondent, all three of the disciplined attorneys used their profession to advance illegal schemes. Sherre and Alschuler did not express remorse or any indication they had done anything wrong. In all three cases, the respondents’ conduct was on a scale significantly more extensive than that of respondent in the case at bar.
My research has revealed relatively few disciplinary suspensions of three or more years duration. One example in which a three-year suspension was imposed illustrates conduct far more egregious than that of respondent in the instant case. In In re Cetwinski (1991), 143 Ill. 2d 396, the respondent participated in an elaborate conspiracy in which he paid kickbacks to a nonattorney and "referral fees” to a suspended attorney in exchange for remaining on the payroll of the Village of Streamwood. The scheme began when respondent’s former supervisor, an attorney who was suspended for organizing a massive voter referendum forgery (see In re Armentrout (1983), 99 Ill. 2d 242), offered to assist respondent become employed as labor attorney for the Village of Streamwood, provided that the respondent pay Armentrout one-third of his legal fees as a referral fee. The respondent agreed, and billed the Village without disclosing his fee-sharing arrangement with the suspended lawyer. Within a few months the manager of the Village of Streamwood suggested that he, too, should be receiving compensation, and the respondent began to make political contributions to the manager. Finally, after consulting with Armentrout, the respondent began to bill the Village for fictitious monthly meetings with the manager, as a way of making additional payments to the manager.
Upon being contacted by a Federal agent who was investigating the Village manager, the respondent lied about the purpose of his payments to the manager. He also issued a press release containing false statements. Eventually, the respondent cooperated with the Federal agents and pleaded guilty to charges of conspiracy to make unlawful payments to the village official and falsely claiming the unlawful payment as a business deduction on his income tax return. Cetwinski, 143 Ill. 2d at 402-03.
This court recognized that the respondent’s misconduct was similar to that in which other attorneys had been disbarred (see In re Rosenthal (1978), 73 Ill. 2d 46) but determined that the mitigating evidence supported a three-year suspension instead, retroactive to the date on which the respondent had been suspended on an interim basis. Mitigating factors included his performance of pro bono services for senior citizens and the fact he was distraught by the failure of his marriage of 10 years at the time he was engaging in the payments to the Village manager.
In Cetwinski, the respondent received a three-year suspension for abetting official corruption and inflating his billings over a period of months, and then giving Federal investigators false statements to cover up his conduct and issuing a false press release. The scope and harm of Cetwinski’s misconduct unquestionably exceeded that found in the instant case.
The majority in the instant case reviews respondent’s actions in connection with the loan and imposes a suspension of three years and until further order of this court. Under the "until further order of this court” provision, respondent will be forced to take additional measures and undergo the time and expense of further proceedings before she can reclaim her law license. It is difficult to discern the manner in which the majority applies the basic principle, "[predictability and fairness require consistency in the sanctions imposed for similar acts of misconduct.” 161 Ill. 2d at 472.
This court imposed a three-year suspension in another case involving a long-term scheme of official corruption and improper payments. (In re Leonard (1976), 64 Ill. 2d 398.) In Leonard, respondent and others were the subjects of a 21-count indictment which included charges of knowing and willful conspiracy to use the mail to promote bribery and the assistance in the preparation of fraudulent Federal corporate income tax returns. The respondent was the attorney, corporate secretary, director, and consultant to a company set up to funnel bribes to Paul Powell, then Illinois Secretary of State, in exchange for a license plate manufacturing contract. The court noted that the respondent’s "actions were not merely an isolated aberration but a knowing and wilful participation in the bribery of a State official, which continued over a period of one year.” (Leonard, 64 Ill. 2d at 404.) In the instant case, respondent’s actions in connection with her loan lack the scope and severity of the Leonard respondent’s conspiracy to commit bribery and official corruption. See also In re Levin (1984), 101 Ill. 2d 535, where this court imposed a three-year suspension on a previously disciplined attorney whose repeated acts of fraudulently concealing his neglect of clients’ cases caused "irreparable injury” to several clients. In the instant case, respondent’s actions did not cause injury to clients and she has not been involved in prior disciplinary proceedings.
In In re Chapman (1983), 95 Ill. 2d 484, the attorney deceived a client by repeatedly lying about the status of the client’s neglected appeal. This court imposed a two-year suspension, stayed pending probation, after finding that the respondent had been rehabilitated from his abuse of alcohol. This court rejected the recommendation of the Hearing and Review Boards that the previously disciplined attorney should be disbarred, concluding that the "drinking problem which formerly existed [was] asserted to be under control” and the respondent was making restitutionary payments to the client. Chapman, 95 Ill. 2d at 494.
Recently, this court was asked to consider whether probationary suspension under Supreme Court Rule 772 should be extended to an attorney who did not suffer from a disability. (In re Jordan (1993), 157 Ill. 2d 266.) In Jordan, the respondent forged the release of a hospital lien in order to expedite the payment to a client of settlement funds. The respondent then attempted to conceal his misconduct by making false statements repeatedly to the Attorney Registration and Discipline Commission. (Jordan, 157 Ill. 2d at 270.) This court noted that the imposition of probation traditionally has been reserved for lawyers whose misconduct is related to a disability such as substance abuse or mental illness. However, in Jordan, we acknowledged that the respondent was not acting under a disability, but nonetheless determined that his three-year suspension should be stayed during a contemporaneous period of conditional probation. This court observed that the respondent’s forgery had not been motivated by personal gain and that his errors in judgment were "an isolated incident” in an otherwise "exemplary” career, which included community activities and pro bono legal work. Jordan, 157 Ill. 2d at 276-77.
As the record in the instant case reveals, respondent’s drive and hard work propelled her from a difficult childhood and early motherhood to an exemplary record of distinguished educational performance and a professional career largely devoted to public service rather than personal enrichment. Her misconduct appears to be an isolated incident. Although respondent had no mental or substance abuse impairment, she may be the victim of her own strength: ironically, she might have been permitted to continue the practice of law under Chapman and Jordan, if only she had been a weaker vessel. The majority’s imposition of a grossly disproportionate sanction is unfair and serves no public interest.
In finding that "a lengthy period of suspension from the practice of law is both necessary and appropriate in the case at bar” (161 Ill. 2d at 474), the majority relies heavily on the fact that respondent failed to update her application to the State Board of Law Examiners to confess that she made false statements and submitted falsified documents to the mortgage lender in support of her loan application. The majority holds that respondent violated "a continuing duty” to provide the Character and Fitness Committee with relevant information as to her fitness while her application was pending. The origin of this duty is found in a provision of the bar application form itself.
While I agree that candidates for admission to the State bar are required to disclose to the Character and Fitness Committee anything that bears on their honesty and fitness to practice law, I believe that the majority’s reliance on a duty of confession is misplaced. In my view, the proper focus is respondent’s deceit to the bank, which is the essential wrongdoing in this case. In activating a duty to update bar applications, the majority fashions two offenses out of the same misconduct and greatly enhances the sanction recommended by both the Hearing and Review Boards.
After the Administrator filed the original charges against respondent, the Administrator filed a separate complaint concerning her failure to disclose her misconduct to the State Board of Bar Examiners. This second complaint was dismissed on respondent’s motion, without a hearing or the filing of a responsive pleading. At the disciplinary hearing on the original charges, the Administrator moved for a continuance, asking to amend the original complaint to include the allegations of respondent’s failure to disclose her misconduct to the State Board of Bar Examiners. The Hearing Board denied the Administrator’s motion for a continuance and leave to amend.
The Review Board upheld the Hearing Board’s ruling on the motion and noted that there was never a formal hearing on those allegations. The Review Board also observed that the Administrator’s motion for continuance and for leave to amend was tardy because it was made on the day of the hearing, when respondents’ witnesses were present and prepared to testify. Finally, the Review Board held that the Administrator should not be permitted to proceed against respondent in a piecemeal fashion, carving two disciplinary actions out of the same conduct.
Significantly, the Review Board concluded that even if the additional charges against respondent had been presented to the Hearing Board and properly preserved for review, the Review Board would not have recommended any greater sanction for the same conduct that had been proved under the original complaint.
The majority opinion discloses that the majority "share[s] *** the Review Board’s concern” that attorneys receive notice and an opportunity to be heard on charges brought against them in disciplinary proceedings. However, the majority states that "the parties have agreed that these further instances of misconduct may be considered in the imposition of a disciplinary sanction.” (Emphasis added.) (161 Ill. 2d at 470.) This remark by the majority indicates that respondent has waived any objection to the consideration of the additional charges in this court’s determination of the proper sanction. I believe the majority distorts respondent’s position. In her brief she argues that the Review Board considered, and correctly resolved, the issue of whether her sanction should be increased by crafting two charges out of the same conduct. She does not concede that she should be twice disciplined for the same misconduct.
Notably, the majority does not cite a single case in which another attorney in this State has been adjudicated in violation of the continuing duty to update a pending bar application. The majority cites to Rule 1 — 101(b), which subjects attorneys to discipline if they deliberately fail to disclose material facts in their bar applications. However, in the instant case respondent completed and submitted her bar application form in December of 1986, many months before she applied for the mortgage loan. Therefore she was truthful on her bar application form when she responded in the negative to whether she had been a party to litigation. What she failed to do is update her bar application contemporaneously with her falsification of loan application documents or at any time thereafter. It is this violation of the "continuing duty to update” her bar application upon which the majority rests much of its reasoning. Although the majority’s position may be technically accurate, I believe it is unfair to single out respondent for a greatly enhanced sanction because of this court’s recognition of the heretofore unannounced violation based on a duty to update bar applications.
In one of a series of disciplinary cases that involved attorneys’ "loans” or "gifts” to judges, this court discharged six attorneys from discipline after finding, "[A]s in the cases of respondents Corboy, Maddux, Harte and Madler, respondents Tuite and Banks were sailing in uncharted waters.” (In re Corboy (1988), 124 Ill. 2d 29, 49 (per curiam).) This court held that respondents had technically violated the rule prohibiting the giving or lending things of value to a judge. However, this court also concluded that there was little precedent or settled opinion to guide these men in their conduct and therefore it would be wrong to discipline them.
In the case at bar, respondent’s failure to update her bar application appears as "uncharted” in our precedents as the Corboy respondents’ conduct. Care should be taken not to create even the appearance of a double standard in announcing new constructions of ethical requirements.
Respondent had taken the bar examination and submitted her application to the Illinois bar long before she took the unfortunate road that led to the mortgage loan problem. In a period of months she had moved back to Chicago, sat for the bar exam, looked for employment, and searched for decent housing for her family, apparently with limited success. This is not a case in which a bar applicant furnishes false or incomplete information of a material nature on her application form at the time she submits it or in response to additional questioning. Therefore, the cases cited by the majority are not directly supportive of the heightened sanction the majority imposes for violation of the duty to update. Moreover, the cases that the majority cites in support of the duty to update the bar application information involve circumstances, unlike those in the case at bar, in which the court found a pattern or calculated effort to frustrate meaningful examination of the applicants’ fitness to practice law. See In re Mitan (1979), 75 Ill. 2d 118 (where the applicant’s "extensive pattern of falsehoods and deception pervad[ed]” his statements to the Character and Fitness Board; respondent’s deceptions included concealment of his conviction of a felony arising out of a confidence game and several arrests); see also In re Jordan (1985), 106 Ill. 2d 162 (respondent, a former police officer, failed to disclose that he had been disciplined numerous times while an officer, had been discharged from the police department for pointing a gun at a man’s head and then beating him, had received 297 parking tickets, and was the subject of a bankruptcy foreclosure); In re Ascher (1980), 81 Ill. 2d 485, 499 (respondent failed to disclose lawsuit pending against him in which he was accused of forgery, fraud, and abuse of fiduciary duties to clients).
Unlike the attorneys in the above cases, respondent’s history and accomplishments suggest that her lapse of judgment and honesty in connection with her mortgage loan is limited to this single incident, which should not disqualify her from continuing to practice as a competent and committed lawyer in this State.
In conclusion, I note that the overriding purpose of our disciplinary system is to protect the public, protect the integrity of the legal system, and to insure the administration of justice. (E.g., In re Lewis (1990), 138 Ill. 2d 310, 334-35.) Disparate and inconsistent sanctions cast doubt on the efficiency and the basic fairness of the disciplinary system. (See ABA Model Standards for Imposing Lawyer Sanctions, ABA/BNA Lawyers’ Manual on Professional Conduct (1992).) The Hearing Board is in the best position to weigh the evidence and its factual determinations are to be given substantially the same weight as those of other fact finders. (E.g., Lewis, 138 Ill. 2d at 334-35.) The Review Board in the instant case concurred in the Hearing Board’s assessment of the case, after reviewing relevant precedent. I agree with these Boards that respondent should be suspended for six months from the practice of law. This court’s drastic departure from the findings and reasoning of both Boards infuses the attorney disciplinary process with arbitrariness.
For all of these reasons, I respectfully dissent.
JUSTICE FREEMAN joins in this dissent.