dissenting:
In attorney disciplinary cases, this court has consistently reiterated the statement made in In re Andros (1976), 64 Ill. 2d 419, 425-26: “While a degree of uniformity in the application of attorney discipline is desirable, each case must still be determined on its own merits.” Although this court has held that the doctrine of stare decisis cannot be applied to the specific discipline meted out in any particular case (In re Nesselson (1966), 35 Ill. 2d 454, 461), I fear that, too often, principles of uniformity are unduly minimized. Certainly the circumstances of each case should be taken into account. However, it is imperative that consistency be established to assure imposition of like sanctions under similar circumstances. For, as this court has also stated: “ ‘*** The courts must not exercise their supervisory control [over the legal profession] in an arbitrary manner, but must show a legal discretion in the exercise thereof. [Citation.] ’ ” In re Alswang (1978), 71 Ill. 2d 203, 209, quoting In re Donaghy (1948), 402 Ill. 120, 123.
A review of this court’s decisions in disciplinary cases demonstrates a lack of consistency in the sanctions imposed. Cases involving apparently similar misconduct have resulted in sanctions ranging from censure to disbarment.
For example, in In re Clayter (1980), 78 Ill. 2d 276, an attorney commingled and converted $1,000 that he held as earnest money for the parties to a real estate transaction. The court considered a number of mitigating circumstances and concluded that censure would be an appropriate sanction. Yet, in In re Agin (1970), 45 Ill. 2d 126, where the attorney settled a personal injury claim and failed to remit the proceeds to his client until demanded, the court ordered him suspended for one year. Although the court considered mitigating circumstances, it determined that respondent’s misconduct warranted stem discipline.
In In re Melin (1951), 410 Ill. 332, the attorney converted and commingled funds from two estates, and was " grossly negligent in the performance of his duties. Noting only the attorney’s good reputation, the court ordered that he be censured and suspended from the practice of law for three months. Similarly, in In re Borchardt (1934), 357 Ill. 458, the attorney commingled and converted the funds from two estates, yet he was suspended for two years and until such time as complete restitution was made. This sanction was imposed despite the court’s consideration of numerous mitigating factors, such as the attorney’s long and honorable career at the bar, the fact that he intended to make complete restitution, and his candor in admitting the wrong committed.
In In re Callas (1980), 82 Ill. 2d 6, an attorney, in his capacity as head of the corporate tmst department of a bank, authorized a $25,000 advance to a corporation that furnished computer services to the bank. At the time of the loan, the attorney was personally indebted to the corporation for that $25,000 amount. Respondent pleaded guilty to Federal charges of embezzlement and conversion. This court found that the misapplication and conversion of $25,000 was a serious violation of important professional responsibilities with which respondent had been entrusted. The court did not discuss factors mitigating the misconduct, and suspended the attorney for nine months. Yet, in In re Patt (1980), 81 Ill. 2d 447, an attorney was convicted of the Federal offense of embezzlement. This court stated, “The embezzlement or conversion of a client’s funds is an act involving moral turpitude and is a gross violation of the attorney’s oath which warrants disbarment in the absence of mitigating circumstances.” (81 Ill. 2d 447, 453, citing In re Stillo (1977), 68 Ill. 2d 49, 54.) The court noted that because respondent offered no evidence before the Hearing Board, the record disclosed no facts sufficient to mitigate the seriousness of respondent’s offense. The attorney was disbarred.
Apparently, inconsistent sanctions are in some instances attributable to recognition of various factors mitigating an attorney’s misconduct. However, a review of the cases illustrates the uneven and arbitrary application of the mitigating factors. Two factors often advanced by a respondent in mitigation are financial and emotional or family problems. In In re Smith (1976), 63 Ill. 2d 250, an attorney converted proceeds from a client’s settlement award to his own personal use. He offered evidence in mitigation to the effect that he suffered severe financial and emotional problems during the time of the alleged misconduct. In ordering that the attorney be disbarred, this court indicated that personal difficulties would not excuse the misconduct. This court, in other disciplinary cases involving conversion, has recognized that personal problems would not excuse the attorney’s actions, and ordered suspension. (In re Simpson (1971), 47 Ill. 2d 562; In re Abbamonto (1960), 19 Ill. 2d 93.) However, in still other cases involving conversion, this court has used personal or domestic difficulties as a mitigating circumstance in arriving at a sanction of suspension. (In re Driscoll (1981), 85 Ill. 2d 312; In re Bass (1971), 49 Ill. 2d 269). In Bass, family problems (along with an impressive war record) were allowed as mitigation resulting in a one-year suspension even though, in addition to conversion, the attorney failed to prosecute suits, failed to notify a client he had not filed suit in a case, and was convicted for income tax evasion. In yet other cases, not involving conversion, this court has considered family or emotional problems as a mitigating circumstance reducing the sanction imposed. E.g., In re Hopper (1981), 85 Ill. 2d 318; In re Chapman (1978), 69 Ill. 2d 494; In re Andros (1976), 64 Ill. 2d 419.
Another area of inconsistency has arisen in the court’s approach toward restitution as a mitigating circumstance. In a number of cases, restitution of converted funds has been expressly or implicitly considered as a factor mitigating the seriousness of an offense. (See In re Costigan (1976), 63 Ill. 2d 230; In re Bloom (1968), 39 Ill. 2d 250; In re Power (1950), 407 Ill. 525.) For example, in In re Turner (1979), 75 Ill. 2d 128, an attorney, without authorization, signed the names of three clients on the back of a settlement check for $850, deposited the check in his personal account, and subsequently overdrew the account. He did not pay the clients until one day prior to the scheduled hearing before the Inquiry Board. In addition, the attorney gave false testimony before the Board. This court compared the case to In re Stillo (1977), 68 Ill. 2d 49 (where this court disbarred an attorney, who was dishonest before the Hearing Board, for commingling and converting funds) and suspended Turner for three years. The court noted his prior unblemished record and that he had made restitution to the parties. In In re Smith (1979), 75 Ill. 2d 134, respondent was charged with three separate instances of endorsing a client’s name on a check, depositing the check in his own account, and using the funds for his own purpose. The attorney made false representations to the clients regarding the money. This court held that the respondent’s acts, together with the absence of attempts at restitution, candor or remorse, warranted respondent’s disbarment.
In contrast, some cases specifically indicate that restitution will not excuse the improper conduct. (In re Feldman (1982), 89 Ill. 2d 7; In re Sherman (1975), 60 Ill. 2d 590.) In other cases, this court has distinguished between the effect of restitution made prior or subsequent to the initiation of a complaint. (See In re Brody (1976), 65 Ill. 2d 152; In re Smith (1976), 63 Ill. 2d 250.) In still other situations attempts at restitution were not considered by the court in imposing a sanction. In re Cleveland (1981), 85 Ill. 2d 520; In re Stillo (1977), 68 Ill. 2d 49.
Another factor accorded inconsistent treatment by the court is the prior record of an attorney against whom a complaint has been brought. In In re Clayter (1980), 78 Ill. 2d 276 (discussed above) and In re Sherman (1975), 60 Ill. 2d 590, attorneys were guilty of commingling and converting their clients’ funds. This court determined that censure was a sufficient sanction, partly because the attorneys were not cited for misconduct prior to the incidents in question. In In re Schlax (1980), 81 Ill. 2d 66, where an attorney commingled and converted funds in a single instance, this court, taking into consideration character testimony, community service and otherwise exemplary professional conduct, suspended respondent for three months. Yet, in In re Gartland (1970), 47 Ill. 2d 177, this court refused to consider the fact that the incident was the first misconduct by the attorney, who converted funds of a savings and loan institution. In imposing a one-year suspension, this court indicated it was not persuaded by the attorney’s previously unblemished record because the first purpose of a disciplinary proceeding is “to safeguard the public, maintain the integrity of the profession and to protect the administration of justice from reproach.” 47 Ill. 2d 177, 183.
Finally, a deviation occurs even in the court’s treatment of the principle that an exemplary record generally inures to the attorney’s benefit while other prior disciplinary action, if considered, is to his detriment. For in In re Baker (1973), 55 Ill. 2d 272, this court actually used a prior sanction as a mitigating circumstance. The court held that an attorney’s misconduct warranted censure, rather than suspension, because “the conduct of the respondent which was the ground for his suspension for one year in 1967 was more reprehensible than the 1964 conduct now complained of and for which the Board advises a two-year suspension.” 55 Ill. 2d 272, 274.
Notwithstanding the inconsistencies in the above-discussed disciplinary cases, I discern one relatively clear pattern. Continuing conduct involving commingling and conversion generally warrants an attorney’s disbarment. Therefore, in the instant case, where the majority acknowledges that respondent’s conduct involved “a pattern of repeated commingling and conversion of funds” (89 Ill. 2d at 254-55), I believe a sanction of disbarment is appropriate.
In several cases, conduct similar to or less egregious than that which occurred here has resulted in an attorney’s disbarment. For example, in In re Feldman (1982), 89 Ill. 2d 7, decided this same term, we ordered disbarment of the attorney for converting estate funds of two clients to his own personal use. In so holding, we noted that the wrong committed did not involve an isolated incident. Rather, as in this case, respondent there “manifested a pattern of behavior which clearly tends to bring the legal profession into disrepute.” (89 Ill. 2d 7, 13.) Further, the respondent here converted the funds of six clients, and therefore his conduct is arguably more severe than that involved in Feldman. Although mitigating circumstances were urged by the respondent in this case, there is no indication that they were considered by the court.
Similarly, in In re Smith (1979), 75 Ill. 2d 134, the attorney was disbarred for the wrongful conversion of clients’ funds. In that case, respondent received settlement or judgment checks to which his clients were entitled. He forged their endorsements on the checks, deposited them in his bank account, and converted the proceeds to his own use. In imposing the sanction of disbarment, the court considered the fact that respondent was guilty of three independent acts of conversion. Although the court notes other aggravating circumstances (misrepresentations to his clients, lack of candor, and no attempt at restitution), the attorney in the instant case also did more than commingle and convert funds. He avoided communication with his clients and, as noted by the Review Board, engaged in “loose, careless and dilatory practices.” (See 89 Ill. 2d at 253.) Further, as the majority indicates, respondent’s explanations for his conduct are “completely unacceptable” (89 Ill. 2d at 253), and consequently his candor is questionable.
In In re Stillo (1977), 68 Ill. 2d 49, the attorney was charged with converting his client’s funds, in that he settled her claim and failed to submit to her the proceeds of the settlement. He also borrowed $10,000 from another client which he failed to repay. On the basis of respondent’s deceptive attitude before the Hearing Board, and these two instances of misconduct, only one of which involved conversion, this court ordered that the attorney be disbarred. Similarly, this court in In re Smith (1976), 63 Ill. 2d 250, determined that disbarment was an appropriate sanction for an attorney who converted to his own use the proceeds of his client’s settlement award. This discipline was imposed despite respondent’s assertions of mitigating circumstances, and the fact that he extracted money from only one client.
In In re Frey (1976), 65 Ill. 2d 130, an attorney was disbarred for commingling and converting his clients’ funds, which conduct, as in this case, “extended over a considerable period of time.” (65 Ill. 2d 130, 131.) The court further indicated that respondent falsely advised his clients with respect to the status of their claims. Similarly, in the instant case, the attorney misrepresented to at least one client that he would receive his money in about two weeks. Two months later, the client still had not received the sum to which he was entitled. Further, two clients received checks from respondent which were subsequently returned for insufficient funds. As this court stated in In re Frey (1976), 65 Ill. 2d 130, 131-32, the attorney’s misconduct did not involve “merely negligent acts but are positive acts of misconduct which require disbarment.”
Although these cases alone indicate that the disbarment of respondent is clearly warranted, there are numerous other cases to the same effect. (See, e.g., In re Fumo (1972), 52 Ill. 2d 307; In re Snitoff (1972), 53 Ill. 2d 50; In re Lingle (1963), 27 Ill. 2d 459; In re Patlak (1938), 368 Ill. 547.) As this court stated in In re Stillo (1977), 68 Ill. 2d 49, 54: “When 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 Royal (1963), 29 Ill. 2d 458, 464; In re Ahern (1962), 26 Ill. 2d 104, 110.) Any mitigating factors urged in the instant case, as in In re Feldman, cannot possibly alleviate the attorney’s repeated and grievous departures from his ethical and professional obligations.
In summary, based upon the above cases, I believe the appropriate sanction here is disbarment, rather than the suspension ordered by the majority. I reaffirm my view that although it is necessary to consider the facts and circumstances of each case, that proposition should not be used as an aegis to attenuate the always strived-for goal of consistency.