dissenting:
I agree with the majority that, given the deference that must be afforded to the Hearing Board as the finder of fact (In re Spak, 188 Ill. 2d 53, 66 (1999)), and our prior case law regarding similar misconduct (In re Imming, 131 Ill. 2d 239 (1989)), the findings of the Hearing Board must be affirmed.
I disagree, however, with the majority’s decision to reject the recommendations of the Hearing Board, the Review Board, and the Administrator that respondent be disbarred. These recommendations are, of course, purely advisory. This court has the ultimate responsibility for imposing attorney discipline. In re Chandler, 161 Ill. 2d 459, 472-73 (1994). In doing so, we strive to achieve predictability and fairness by imposing sanctions consistent with those imposed for similar misconduct. In re Howard, 188 Ill. 2d 423, 440 (1999). Nevertheless, we approach each case with the understanding that “our goal is not to punish the attorney but rather to protect the public from incompetent or unscrupulous attorneys, to maintain the integrity of the profession, and to protect the administration of justice from reproach.” Howard, 188 Ill. 2d at 434. In my opinion, the majority has not given sufficient attention to our responsibility to protect the public from respondent’s habitual misconduct or to protect the integrity of the profession.
Although the majority cites cases in which similar misconduct has not resulted in disbarment (208 Ill. 2d at 384), and cases in which repeat offenders have not been disbarred (208 Ill. 2d at 385), I do not find these cases persuasive because this respondent has been disciplined on not just one but two prior occasions. He was suspended for three years in 1993 for conversion and commingling of client funds, failing to maintain complete records of client funds, neglecting cases, hiding assets from the court, and making misrepresentations to the ARDC. He was censured in 1994 for failure to file tax returns for five consecutive years. 208 Ill. 2d at 378. The majority, however, does not give great weight to respondent’s prior misconduct as a factor in aggravation. Rather, the majority would require proof of corrupt motives or moral turpitude, rather than mere habitual misconduct, before imposing the severe sanction of disbarment. 208 Ill. 2d at 385.
Similar Misconduct
The majority notes that in Imming a two-year suspension was imposed when the attorney engaged in transactions similar to the loan at issue in Count I. 208 Ill. 2d at 384. The Hearing and Review Boards recommended a two-year suspension for Imming, while the Administrator recommended disbarment. Imming, unlike the respondent in the present case, “had a previously unblemished record for 26 years.” Imming, 131 Ill. 2d at 261. This court noted that the “degree of punishment imposed in a disciplinary proceeding is based upon an evaluation of the evidence, the respondent’s past record, his attitude at the disciplinary proceeding, and the best interests of society.” Imming, 131 Ill. 2d at 260. Further, although “we endeavor to achieve uniformity in imposing discipline, *** we also consider each case on its own merits.” Imming, 131 Ill. 2d at 260. In the end, this court concluded that a two-year suspension “would be sufficient deterrence to impress upon respondent and others the absolute necessity of full disclosure in business transactions with clients and the impropriety of overreaching in the attorney-client relationship.” Imming, 131 Ill. 2d at 261.
The facts relevant to determining the proper sanction in the present case are readily distinguishable from the facts in Imming. Respondent does not have an unblemished record; he did not display an attitude of cooperation or remorse at the disciplinary hearing; and he has not been sufficiently deterred from misconduct by a prior three-year suspension.
The majority also points to the two-year suspension imposed in In re Rosin, 118 Ill. 2d 365 (1987), for misconduct similar to respondent’s. 208 Ill. 2d at 384. In Rosin, the record was “replete with both aggravating and mitigating circumstances” (Rosin, 118 Ill. 2d at 387), while in the present case, there are aggravating circumstances, but no mitigating circumstances. In mitigation, Rosin received no benefit from his conduct, he did not intentionally defraud his client, and he had no prior history of disciplinary action. Respondent, in contrast, did profit from his misconduct by securing and failing to repay a loan and by retaining funds that should have been promptly disbursed to a client. Further, he has twice been subjected to professional discipline. In aggravation, the Administrator cited uncharged conduct of Rosin’s. Rosin, 118 Ill. 2d at 388. In the present case, respondent’s failure to file recent tax returns, even after a previous censure for the same conduct, is uncharged conduct that the boards and the Administrator considered an aggravating circumstance.
In re Joyce, 133 Ill. 2d 16 (1989), in which a two-year suspension was imposed for commingling and conversion of client funds (208 Ill. 2d at 384), is likewise unpersuasive. In Joyce, although the respondent attorney continued to deny any wrongdoing, he had been practicing for almost 20 years with no disciplinary record.
The majority distinguishes two cases cited by the Review Board in its written decision on the basis that, in each case, “certain aggravation existed which is notably absent” in the present case. 208 Ill. 2d at 384. In In re Stillo, 68 Ill. 2d 49, 51 (1977), this court ordered disbarment of an attorney who borrowed money from a client and failed to repay it. Later, after the client obtained other representation, Stillo signed a promissory note for the amount borrowed, plus interest. By the time of the disciplinary proceeding, he had paid his obligation in full, including interest. Stillo, 68 Ill. 2d at 52. Stillo also settled a claim for another client without her knowledge. The settlement check, “purporting to bear the endorsement” of the client, was deposited in Stillo’s bank account. Stillo, 68 Ill. 2d at 52. In addition, although Stillo was not charged with giving false testimony, the Hearing Board concluded that he was not truthful in his testimony. Stillo, 68 Ill. 2d at 54.
Stillo is, thus, virtually on all fours with the present case except that Stillo, unlike respondent, did repay the improper loan. It is difficult to discern what aggravating factor was present in Stillo that is “notably absent” in the present case except, perhaps, for Stillo’s accepting a settlement offer without prior authorization from his client. The client, however, did not object to the amount of the settlement. She was wronged by Stillo’s conversion of the proceeds. This court concluded that conversion of client funds to one’s own use is “an act involving moral turpitude, and, in the absence of mitigating circumstances, *** is a gross violation of the attorney’s oath, calling for the attorney’s disbarment.” Stillo, 68 Ill. 2d at 54.
Later, in In re Feldman, 89 Ill. 2d 7 (1982), this court ordered disbarment of an attorney who converted client funds and then compounded his wrongdoing by signing another client’s name on checks to obtain funds so that he could cover up the earlier conversion. It is the intentional nature of his misconduct, as evidenced by the attempted cover-up, that the majority apparently finds to be a sufficient aggravating factor to justify disbarment. 208 Ill. 2d at 384. However, in Feldman, this court noted that “the offense of conversion is sufficient to justify disbarment” and, further, disbarment has been imposed “in situations involving similar or less flagrant misconduct” than that committed by Feldman. Feldman, 89 Ill. 2d at 11. In addition, Feldman argued that a lesser sanction would be appropriate, given that this was the first instance in which he had been charged with professional misconduct. Feldman, 89 Ill. 2d at 13. As this court accurately observed, however, “the wrong committed does not constitute an isolated incident. Rather, respondent has manifested a pattern of behavior which clearly tends to bring the legal profession into disrepute.” Feldman, 89 Ill. 2d at 13. Respondent in the present case has also manifested a pattern of behavior that brings the profession into disrepute.
In my opinion, there is no meaningful distinction to be made between Stillo, Feldman, and the present case and the same sanction — disbarment—should be imposed.
Recidivism
While the lack of prior discipline is often seen as a mitigating factor (see Imming, 131 Ill. 2d 239; Joyce, 133 Ill. 2d 16; Rosin, 118 Ill. 2d 365), a history of prior discipline may be viewed as a factor in aggravation (see Imming, 131 Ill. 2d at 260 (“respondent’s past record” is relevant to determination of discipline to be meted out)). With regard to this aggravating factor, the majority notes the Administrator’s reliance on In re Blank, 145 Ill. 2d 534 (1991), but does not attempt to distinguish that case. 208 Ill. 2d at 384-85. Instead, the majority relies on Howard, 188 Ill. 2d 423. 208 Ill. 2d at 385.
In Blank, both the Hearing Board and the Review Board recommended that the respondent be suspended for two years while the respondent argued that a two-year suspension was excessive. Blank, 145 Ill. 2d at 554. This court, however, ordered him disbarred because, unlike an attorney suspended for 18 months for similar misconduct, Blank was a recidivist. Blank, 145 Ill. 2d at 554, citing In re Fox, 122 Ill. 2d 402 (1988). Attorney Blank had not been previously suspended. In fact, his previous discipline consisted only of a censure in 1984 for mishandling of a client’s funds. Blank, 145 Ill. 2d at 554. Factors supporting disbarment were his recidivism, the gravity of his offenses, and the fact that Blank failed to recognize his improper conduct and attempted to blame his problems on another. Blank, 145 Ill. 2d at 555. I agree with the Administrator that Blank offers sound support for disbarment in the present case.
In Howard, the Hearing Board recommended a two-year suspension for an attorney who made a misrepresentation regarding a past suspension in a petition to practice pro hac vice in another state, neglected a criminal appeal, engaged in the practice of law while under a prior suspension, and failed to promptly return unearned fees. The Review Board adopted the Hearing Board’s findings of fact, but reduced the recommended suspension to a period of three months. Howard, 188 Ill. 2d at 425. The Administrator filed exceptions, arguing that the misconduct proven in this case, coupled with Howard’s history of prior misconduct, demanded a sanction “far in excess of the three months” recommended by the Review Board. This court agreed. Howard, 188 Ill. 2d at 440.
Three dissenting justices advocated disbarment of Howard, but the majority rejected disbarment, stating that “where corrupt motives and moral turpitude are not clearly shown, the proper punishment is suspension rather than disbarment.” Howard, 188 Ill. 2d at 441. With regard to his recidivism, this court noted that the acts underlying the earlier suspension occurred during the same period of time as the neglect of the criminal appeal that formed a substantial part of the current matter. Howard, 188 Ill. 2d at 441-42. In addition, the previous suspension was for five months so that a suspension for two years, more than four times the duration of the earlier suspension, would be “sufficiently meaningful” to have the desired effect. Howard, 188 Ill. 2d at 442. Finally, there was substantial mitigation based on Howard’s “years of dedicated service to the community, to his church, and to a segment of the population that is often overlooked.” Howard, 188 Ill. 2d at 442.
Respondent in the present case did not demonstrate a substantial degree of mitigation. As the majority notes, the Hearing Board found his testimony regarding community service and pro bono representation essentially self-serving and insufficient to warrant substantial consideration. 208 Ill. 2d at 378-79. He expressed no remorse and, indeed, made false statements to the ARDC. In addition, the majority is not imposing a suspension four times as long as the earlier suspension. The 42-month suspension is a mere six months longer than respondent’s three-year suspension, the “until further order” provision notwithstanding.
The present case can also be distinguished from Howard on the basis of the timing of the various offenses. The misconduct at issue in count I of the present complaint occurred in 1988, prior to the earlier disciplinary actions. Thus, it is conceivable, I suppose, that the intervening disciplinary actions had such an effect on respondent that he determined never to engage in such conduct again. The facts, however, do not support such an optimistic view. Although respondent solicited the loan from Rzewnicki prior to either of his two earlier disciplinary actions, he did not repay that loan even after his suspension expired and he was again earning sufficient funds to repay his debt. Rzewnicki obtained a default judgment against respondent in January 1999 and, still, respondent made no effort whatsoever to repay the loan. The misconduct at issue in count II of the complaint occurred in 1998, as did the false statements made by respondent to the ARDC, which are the subject of count III.
Previous disciplinary actions had no apparent effect on respondent. Indeed, the Hearing Board noted that he tended to justify and minimize his actions, rather than accept responsibility for them. Respondent, however, told the Board that he had “learned his lesson” from his failure to document his transaction with Purnell. This statement should be viewed with skepticism since respondent did not learn his lesson regarding the maintenance of complete records even after a previous suspension. In re Timpone, 157 Ill. 2d 178 (1993).
I find the reasoning of the Review Board persuasive. The timing of the misconduct at issue demonstrates that the earlier suspension had no effect on respondent’s conduct. This three-year suspension ended in 1996 and he was again mishandling client funds as early as 1998. Similarly, although respondent was censured in 1994 for failure to file a timely tax return, he had not filed his 1998 return by the time of his hearing before the Hearing Board. His lack of candor and remorse weigh in favor of a severe sanction. The Review Board, thus, concluded that even a lengthy suspension would not alter respondent’s conduct.
Corrupt Motives or Moral Turpitude
Even when respondent’s repeated offenses are taken into consideration, the majority is reluctant to disbar an attorney in the absence of evidence of corrupt motives or moral turpitude. The cases relied upon are Howard, 188 Ill. 2d at 441 (“where corrupt motives and moral turpitude are not clearly shown, the proper punishment is suspension rather than disbarment”), and In re Chapman, 69 Ill. 2d 494, 501 (1978) (“ ‘Suspension is a proper punishment “where a corrupt motive and moral turpitude are not clearly shown” ’ ”), quoting In re Taylor, 66 Ill. 2d 567, 571 (1977), quoting In re Ahern, 23 Ill. 2d 69, 74 (1961).
On the other hand, there are numerous cases in which this court has equated conversion of client funds with corruption. See, e.g., In re Himmel, 125 Ill. 2d 531, 543 (1988) (“It is clear that conversion of client funds is, indeed, conduct involving moral turpitude”) (citing In re Levin, 118 Ill. 2d 77, 88 (1987), and Stillo, 68 Ill. 2d at 54).
Although respondent’s conduct is certainly less blameworthy than that of an attorney who sets out to deliberately defraud his clients, it is not the result of mere inadvertence, or a single instance of yielding to temptation, or inexperience, or personal pressures related to family matters or to health. He has demonstrated for more than a decade that he cannot be trusted to conform his conduct to the Rules of Professional Conduct. His recidivism is the evidence of corruption.
Conclusion
Disbarment is a severe penalty that should be used only in cases of serious misconduct. In re Yamaguchi, 118 Ill. 2d 417, 428-29 (1987) (declining to disbar attorney who aided another in the unauthorized practice of law and imposing six-month suspension recommended by Review Board where respondent had no history of professional discipline, did not profit or attempt to profit from his misconduct, and neither harmed nor intended to harm anyone). Respondent’s pattern of misconduct is serious, repeated, and remorseless. It is this court’s duty to protect the public from such conduct. Respondent should be disbarred.
JUSTICE THOMAS joins in this dissent.