concurring in part and dissenting in part:
The majority finds that respondent has, by his conduct, violated several rules under our Code of Professional Responsibility. Therefore, the majority has suspended respondent from the practice of law for a period of three years and until further order of the court. I agree that respondent’s conduct warrants sanction, and given the nature and seriousness of that conduct, suspension from the practice of law is appropriate. However, because I fail to see how either the public is further protected or the integrity of the legal profession is further safeguarded by the "until further order” portion of the sanction, I disagree to that extent.
That said, I find it apt to comment on an additional aspect of this case. The respondent has urged that because the Code offers no explicit guidance on the issue of sexual relationships between an attorney and client, his conduct should not subject him to discipline. I agree with the majority that the absence of an explicit rule concerning sexual relationships in the context of the attorney-client relationship is not a reason to excuse respondent’s conduct. No rule need have existed to inform respondent that his conduct, which was so obviously improper, was violative of the rules of professional conduct.
Respondent’s misconduct consisted of more than a single isolated incident involving one client. Furthermore, this was conduct which went beyond the mere verbalization of sexual desire. At various times during the course of respondent’s or his firm’s representation, the respondent repeatedly engaged in uninvited physical sexual conduct with three different clients. In each of the three cases, respondent’s sexual advances were both unsolicited and unwelcome. Further, some of these sexual episodes lasted no longer than did the period of the legal representation. These facts not only evidence the gratuitous nature of the conduct, but also support the complainants’ characterization of respondent’s advances as coercive.
Therefore, had the circumstances of this case been different, the absence of an express rule might be reason either to excuse the conduct or certainly to impose a lesser sanction. However, this conduct far exceeds any innocent mistake in professional judgment which, in the absence of an express proscription, would merit such leniency.
As a practical matter, there could never be a set of rules which contemplates every aspect of the many encounters between an attorney and client. Furthermore, and as the majority so aptly points out, implicit in the Code is that every attorney, in the exercise of professional judgment, will conduct him or herself in a manner which will not potentially compromise the attorney-client relationship. Given that, some may disagree that there need be any rule which expressly governs sexual relations between an attorney and client. Yet, few could disagree that a per se rule prohibiting sexual relations between an attorney and client during the course of the legal representation would provide the clearest guidance to practitioners in this regard. Incidentally, our rules committee is on the threshold of fashioning a rule to address this very issue.
Returning to the "until further order” portion of the sanction, I again note my disagreement. Typically, the "until further order” sanction has been reserved for those cases where the attorney has been the subject of repeated disciplinary proceedings (see, e.g., In re Levin, 101 Ill. 2d 535 (1984) (respondent involved in repeated incidents of misconduct and prior discipline)) or where a condition which renders an attorney not fit to practice is amenable to treatment and change (see, e.g., In re Guilford, 115 Ill. 2d 495 (1987) (until further order sanctions have been ordered in cases in which attorneys suffered mental illness or some form of addiction)). In such cases the disciplined attorney is afforded an opportunity to establish that the conduct or the condition which required suspension has actually improved or changed. Correspondingly, the court has an opportunity to assess the attorney’s rehabilitation and readiness to return to the practice of law.
Respondent’s conduct, which was largely confined to sexual relations with clients during the course of his or his firm’s representation of them, is not conduct which is amenable to assessment of change. There are no allegations of sexual misconduct occurring outside of the attorney-client relationship. Therefore, for purposes of reinstatement, it is not apparent how respondent will demonstrate, in any meaningful way, and how this court will be able to assess, with much reliability, whether respondent has truly mended his ways. Further, respondent has not been subject to either prior or repeated disciplinary proceedings which would, for those reasons, warrant tightening the reins on his ability to re-enter the practice.
Finally I have become aware that, in practice, when an "until further order” sanction has been imposed, the process for reinstatement, which is conducted through our Attorney Registration and Disciplinary Commission, may take well up to two years. In such cases, the "until further order” sanction operates to enhance the sanction by extending the suspension period. Absent the necessary showing that a suspended attorney’s suspension should continue, any extension of that suspension, even an unintentional one, is simply unfair to the practitioner.
As a means of assessing fitness to practice law, the "until further order” sanction is invaluable. However, to the extent that the sanctionable conduct at issue is not amenable to measurement for improvement, imposition of an "until further order” sanction serves no valid purpose. This sanction should be reserved only for those cases where it will function most effectively as an assessment tool. This court, as overseers of the practice of law in Illinois, must take care to insure that the very sanction by which we assess the need for continued suspension from the practice of law does not, merely by its imposition, effect a baseless continuation of the suspension.
My disagreement with the "until further order” sanction in this case has more to do with the general operation of the sanction itself than with the fact that it was imposed on this particular respondent. Clearly, respondent’s misconduct was sanctionable. However, because of the nature of this respondent’s misconduct, the "until further order” sanction will be ineffective to assess, with much reliability, his fitness to return to the practice of law.
Therefore, I respectfully dissent from this portion of the court’s judgment.