NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 81878--Agenda 10--November 1996.
In re RICHARD ANTHONY RINELLA, Attorney, Respondent.
Opinion filed February 20, 1997.
CHIEF JUSTICE HEIPLE delivered the opinion of the court:
The Administrator of the Attorney Registration and
Disciplinary Commission filed a complaint with the Hearing Board
charging respondent, Richard Anthony Rinella, with four counts of
professional misconduct for engaging in sexual relations with
clients and testifying falsely before the Commission. The Hearing
Board found that respondent had committed the misconduct charged in
each of the counts and recommended that respondent be suspended
from the practice of law for a period of three years and until
further order of this court. The Review Board approved the findings
and recommendation of the Hearing Board, except that it recommended
that respondent's suspension expire automatically at the end of
three years. We granted respondent's petition for leave to file
exceptions. For the reasons that follow, we approve in part and
reject in part the recommendation of the Review Board, and approve
the recommendation of the Hearing Board. Respondent is suspended
from the practice of law for three years and until further order of
this court.
FACTUAL AND PROCEDURAL HISTORY
I. The Complaint and Answer
Count I of the Administrator's complaint alleged that in July
of 1983 Jane Doe retained respondent to represent her in a
dissolution of marriage proceeding and paid respondent a fee of
$7,500. The complaint alleged that respondent and Doe had a sexual
relationship that began in approximately July of 1983 and continued
throughout the duration of respondent's representation of her. The
complaint alleged that the relationship was initiated by respondent
when he made sexual advances to Doe during her second visit to his
office, and that Doe submitted to respondent's advances because she
was afraid that refusing to do so would adversely affect
respondent's representation of her and because she could not afford
to hire another lawyer after paying respondent his retainer. The
complaint charged that by engaging in the conduct alleged in count
I, respondent had committed overreaching and violated Rules 1--
102(a)(5), 5--101(a), 5--102(a), and 5--107(a) of the Code of
Professional Responsibility (87 Ill. 2d Rs. 1--102(a)(5), 5--
101(a), 5--102(a), 5--107(a)) and Supreme Court Rule 771 (94 Ill.
2d R. 771).
Count II of the complaint alleged that in March of 1991 and
March of 1993, while testifying under oath before the Commission,
respondent falsely stated that he had never had sexual relations
with Jane Doe, that he had not had sex with her at her house, and
that he had never had nude photographs taken of himself at her
house. Count II further alleged that in June of 1993, while again
testifying before the Commission, respondent retracted these
denials after he was shown a nude picture of himself which he
admitted was taken at Doe's house. Count II charged that
respondent's March 1991 and March 1993 testimony violated Rules
8.1(a)(1), 8.4(a)(3), 8.4(a)(4), and 8.4(a)(5) of the Rules of
Professional Conduct (134 Ill. 2d Rs. 8.1(a)(1), 8.4(a)(3), (a)(4),
(a)(5)) and Supreme Court Rule 771 (134 Ill. 2d R. 771).
Count III of the complaint alleged that in November of 1983,
Jeanne Metzger retained respondent to represent her in a
dissolution of marriage proceeding and paid him a retainer of
$2,500. The complaint alleged that on Saturday, December 10, 1983,
respondent scheduled an appointment with Metzger at his office to
discuss her case, and that after Metzger arrived and entered his
office, respondent barred the door with a chair and initiated
sexual activity with her. The complaint alleged that Metzger
submitted to respondent's sexual advances because she believed that
the quality of respondent's representation of her would be
adversely affected if she refused. The complaint further alleged
that respondent engaged in sexual activity with Metzger on two
other occasions thereafter, including once on January 11, 1984, at
which time respondent asked Metzger to supply him with nude
pictures of her. The complaint also alleged that during a court
appearance on February 8, 1984, to which respondent had asked
Metzger to bring an instant camera, respondent instructed Metzger
to answer all of his questions relating to her divorce in the
affirmative, regardless of how she wished to respond. The complaint
charged that by engaging in the conduct alleged in count III,
respondent committed overreaching and violated Rules 1--102(a)(5),
5--101(a), 5--102(a), 5--107(a), and 7--101(a)(3) of the Code of
Professional Responsibility (87 Ill. 2d Rs. 1--102(a)(5), 5--
101(a), 5--102(a), 5--107(a), 7--101(a)(3)) and Supreme Court Rule
771 (94 Ill. 2d R. 771).
Count IV alleged that Sandra Demos retained respondent's law
firm in 1980 to represent her in a dissolution of marriage
proceeding. The complaint alleged that although respondent did not
have primary responsibility for Demos' case, he would call her
frequently to ask her to meet him socially, and during these
telephone calls would discuss with her items of a personal nature
that he could only have learned from reviewing her file. The
complaint alleged that on one occasion around 1982, respondent made
sexual advances to Demos and engaged in sexual relations with her
in his automobile, after which he immediately took her to a motel
room where he attempted to have sexual intercourse with her. The
complaint further alleged that Demos submitted to respondent's
sexual advances because she believed that refusing to do so would
adversely affect his firm's representation of her. The complaint
charged that by engaging in the conduct alleged in count IV,
respondent committed overreaching and violated Rules 4--101(b)(3),
5--101(a), and 5--102(a) of the Code of Professional Responsibility
(87 Ill. 2d Rs. 4--101(b)(3), 5--101(a), 5--102(a)) and Supreme
Court Rule 771 (87 Ill. 2d R. 771).
In his answer to the complaint, respondent denied the specific
instances of sexual encounters with Doe and denied having engaged
in any sexual relations with Metzger or Demos. As to the
allegations of perjury, respondent admitted that his testimony
before the Commission was untrue, but maintained that his answers
were justified because any sexual activity with Doe occurred after
his representation of her had ceased and was therefore not a proper
subject of the Commission's inquiry. Respondent also filed a motion
to dismiss the complaint based primarily on the ground that no
disciplinary rule specifically forbids sexual relations between an
attorney and his client. The Commission denied this motion and set
the matter for hearing.
II. The Evidence
Before the Hearing Board, Jane Doe testified that during her
second visit to respondent's office in July 1983, respondent came
over to the sofa she was sitting on and began fondling her. She
testified that she began crying and that respondent told her to
stop crying. She testified that she then performed fellatio on
respondent. She also testified that during the sexual activity,
respondent said "it would make it easier." She testified that she
did not want to engage in sexual activity with respondent but felt
she had to because she had just changed lawyers and paid respondent
a large retainer.
Doe further testified that one day in the spring of 1984, she
and respondent were undressed and engaging in fellatio in her
bedroom at her house when her ex-husband, John Doe, walked into the
room. Jane Doe testified that she put on a robe and followed John
Doe downstairs while respondent hid in a closet. She testified that
John Doe then asked where the couple's five-year-old son was, and
she responded that he was at a friend's house. She testified that
John Doe periodically refers to this incident when she requests
timely maintenance or child support payments from him.
John Doe testified before the Hearing Board that the incident
in the bedroom at his wife's house occurred a few weeks before the
entry of a supplemental judgment resolved issues of property
distribution, maintenance, and child support in the Does'
dissolution of marriage proceeding.
Also before the Hearing Board, Jane Doe identified two
exhibits as photographs of respondent in the nude taken at her
house in the spring of 1984. She said the photographs showed
wallpaper in her house which she had removed in the fall of 1984.
Jane Doe admitted that she attended a holiday luncheon
sponsored by respondent's law firm in 1987 or 1988, and that she
sent respondent a humorous postcard in January 1986 which she
signed "Lustfully Yours."
Respondent testified before the Hearing Board that while he
had engaged in sexual activity with Jane Doe, this activity took
place in late 1986, or in 1987 or 1988, after he had stopped
representing her. He denied having sex with Jane Doe in his office
in July 1983, and denied having sex with her in her house at any
time. He testified that he went to Jane Doe's house on a few
occasions during his representation of her, and that John Doe came
to the house on one of those occasions, but said that he and Jane
Doe were standing in an upstairs hallway fully clothed when John
Doe encountered them. Respondent also testified that the
photographs of him in the nude were taken on an occasion when he
and Jane Doe engaged in sexual activity in late 1986, or in 1987 or
1988. Respondent admitted that in prior testimony before the
Commission he falsely denied ever having had sex with Jane Doe and
having had nude pictures taken, but he stated that he believed
these answers were justified because his sexual relationship with
Doe occurred after he stopped representing her.
Jeanne Metzger testified that she retained respondent in
November 1983, and that on a Saturday in December 1983, she had an
appointment at respondent's office to discuss her case. She
testified that when she entered respondent's office, respondent
closed the door behind her and propped a chair up against the
doorknob. She testified that respondent then came towards her,
unzipped his pants, and sat down on the couch beside her. She
testified that respondent then put his hand on her head, had her
lean towards him, and pushed her head down while stating "You don't
have to do this if you don't want to." Metzger testified that she
then performed fellatio on respondent. She testified that while she
did not want to do so, she felt she had to for the welfare of her
children, whose custody was contested.
Metzger further testified that respondent scheduled another
appointment with her for December 14, 1983, at his office, and that
when she arrived, respondent told her to go downstairs and wait on
the sidewalk outside the building. She testified that respondent
then joined her outside and took her by taxi to an apartment in a
high-rise building. She testified that after entering the
apartment, respondent undressed and sniffed a bottle of liquid, and
then asked her to do the same. She testified that she sniffed the
bottle and got an "extreme high," and that the two then had sex.
Metzger further testified that on January 11, 1984, after a
deposition in her case, respondent again took her to the apartment
and asked her to sniff the bottle of liquid, and that the two then
had sex again. She testified that on this occasion, respondent told
her to make an appointment to get a "tummy tuck," and that he gave
her the name of the doctor with whom she should make the
appointment. She also testified that on this occasion, respondent
said that he wanted to take pictures of her "from the neck down"
and offered to let her take similar pictures of him, but that there
was no camera in the apartment.
Metzger further testified that respondent told her to bring an
instant camera to a court appearance in her case one day in
February 1984. She testified that just before the court appearance,
respondent instructed her to answer "yes" to all of his questions.
She also testified that respondent asked her before the hearing if
she had brought the camera, and that she said "yes" because she was
afraid telling him the truth would affect his representation that
day. She testified that immediately after the court appearance,
when she told respondent that she did not really have the camera,
he became angry and left abruptly, refusing to discuss with her a
number of questions she had regarding the testimony she had given
that day. Metzger testified that shortly thereafter, she hired
another attorney to replace respondent.
Respondent testified that he never had sexual relations with
Metzger. He denied propping a chair up against the door during an
appointment with Metzger. He denied ever going with her to an
apartment and having sex. He also denied asking her to bring a
camera to a court appearance.
Sandra Demos testified before the Hearing Board that she
retained respondent's law firm in 1980 to represent her in a
dissolution of marriage proceeding, and that respondent's father
was the primary attorney on her case. Demos testified that she met
respondent for the first time in the lobby of the law firm, and
that after this meeting, he began calling her frequently to ask her
out for a drink. She stated that although she continually refused
to meet him, the phone calls went on for months, and that during
the conversations, respondent discussed information he could only
have learned by viewing her confidential files, such as her sexual
history with her husband.
Demos testified that she finally agreed to meet respondent one
day in March 1992. She testified that they met and had several
drinks, and that respondent afterwards offered to drive her home.
She testified that respondent then drove her to a harbor, parked
the car, and began kissing and fondling her. She testified that she
did not want to have sexual relations with him, but submitted to
his advances because she feared her case would be mishandled if she
did not. She further testified that after approximately 15 minutes,
respondent, without saying anything to her, drove the car to a
motel and took her into a room. She testified that respondent
attempted to have sexual intercourse with her, but had trouble
maintaining an erection, and that he then began sniffing some
liquid in a bottle. She testified that respondent then attempted to
force her to perform fellatio on him, but that she refused. She
testified that after they had spent approximately one hour in the
motel, respondent drove her home.
Respondent testified that he did not recall ever meeting
Demos, although he might have met her once briefly in the lobby of
his law firm. He denied ever discussing Demos' case with other
attorneys at his firm or viewing the firm's files on her case. He
also denied that he ever had sexual relations with her or took her
to a motel.
III. Findings and Recommendations
The Hearing Board found that respondent engaged in sexual
relations with each of the three women while he or his firm
represented them. The Board found that this conduct by respondent
constituted overreaching because he used his position of influence
over the clients to pressure them to engage in sexual relations.
The Board noted that all of the women testified that they did not
want to engage in sexual relations with respondent but felt that
they had to in order to ensure that they were effectively
represented and because they could not afford to hire another
lawyer.
The Hearing Board also found that respondent violated the
following rules of the Code of Professional Responsibility: Rule 1-
-102(a)(5), by engaging in conduct prejudicial to the
administration of justice (87 Ill. 2d R. 1--102(a)(5)); Rule 4--
101(b)(3), by using client confidences for his own advantage in his
dealings with Sandra Demos (87 Ill. 2d R. 4--101(b)(3)); Rule 5--
101(a), by failing to withdraw from the women's cases when his
professional judgment may have been affected by his own personal
interest (87 Ill. 2d R. 5--101(a)); and Rule 5--107(a), by failing
to represent his clients with undivided fidelity (87 Ill. 2d R. 5--
107(a)). As to count II, the Board found that respondent violated
Rules 8.1(a)(1), 8.4(a)(3), 8.4(a)(4), and 8.4(a)(5) of the Rules
of Professional Conduct by giving false testimony before the
Commission. 134 Ill. 2d Rs. 8.1(a)(1), 8.4(a)(3), (a)(4), (a)(5).
Finally, the Board found that respondent violated Supreme Court
Rule 771 by engaging in conduct which tends to defeat the
administration of justice or bring the courts or the legal
profession into disrepute. 134 Ill. 2d R. 771.
The Board found that the Administrator did not prove that
respondent violated Rule 5--102(a) by failing to withdraw from
employment when it was obvious that he might be called as a witness
other than on behalf of his clients, or Rule 7--101(a)(3) by
intentionally prejudicing or damaging his clients during his
representation of them. 87 Ill. 2d Rs. 5--102(a), 7--101(a)(3).
The Hearing Board recommended that respondent be suspended
from the practice of law for a period of three years and until
further order of this court. The Review Board approved each of the
findings and the recommendation of the Hearing Board, except that
it recommended that respondent's suspension expire automatically at
the end of three years.
ANALYSIS
I. Respondent's Sexual Relations with Clients
Respondent takes exception to the Hearing Board's finding that
he committed sanctionable misconduct. He contends that he cannot be
sanctioned for engaging in sexual relations with his clients
because no disciplinary rule specifically proscribes such conduct,
and that imposing a sanction under these circumstances would
violate due process because he did not have adequate notice that
his conduct was prohibited. He also asserts that his conduct did
not violate the specific rules cited by the Board and did not
constitute overreaching.
Initially, we reject respondent's contention that attorney
misconduct is sanctionable only when it is specifically proscribed
by a disciplinary rule. On the contrary, the standards of
professional conduct enunciated by this court are not a manual
designed to instruct attorneys what to do in every conceivable
situation. In re Gerard, 132 Ill. 2d 507, 538 (1989). As stated in
the preamble to the Illinois Rules of Professional Conduct:
"Violation of these rules is grounds for discipline. No
set of prohibitions, however, can adequately articulate
the positive values or goals sought to be advanced by
those prohibitions. This preamble therefore seeks to
articulate those values ***. Lawyers seeking to conform
their conduct to the requirements of these rules should
look to the values described in this preamble for
guidance in interpreting the difficult issues which may
arise under the rules." 134 Ill. 2d Illinois Rules of
Professional Conduct, Preamble, at 470.
The preamble then likens the practice of law to a public trust, and
charges lawyers with maintaining public confidence in the system of
justice by acting competently and with loyalty to the best
interests of their clients. 134 Ill. 2d Illinois Rules of
Professional Conduct, Preamble, at 470.
In support of his contention that only specifically proscribed
conduct is sanctionable, respondent relies on In re Corboy, 124
Ill. 2d 29 (1988). In that case, this court refused to impose
sanctions on certain attorneys who made gifts to a judge because
the attorneys could not reasonably have been on notice that their
conduct was prohibited and because there was considerable belief
among members of the bar that the attorneys had acted properly. In
re Corboy, 124 Ill. 2d at 45. In contrast, we do not believe that
respondent, or any other member of the bar, could reasonably have
considered the conduct involved here to be acceptable behavior
under the rules governing the legal profession.
The Hearing Board found that respondent failed to withdraw
from representation when the exercise of his professional judgment
on behalf of his clients reasonably could have been affected by his
own personal interests, thereby violating Rule 5--101(a) of the
Code of Professional Responsibility. 87 Ill. 2d R. 5--101(a). The
Hearing Board also found that respondent failed to represent his
client with undivided fidelity, thereby violating Rule 5--107(a).
87 Ill. 2d R. 5--107(a). We believe the record amply supports these
findings. The Hearing Board was justified in concluding that
respondent took advantage of his superior position as the women's
legal representative to gain sexual favors from them during times
when they were most dependent upon him. Each of the women testified
that she did not want to engage in sexual relations with
respondent, but felt she needed to submit to his advances in order
to ensure the vigorous representation of her interests. By placing
his clients in such situations of duress, respondent compromised
the exercise of his professional judgment on their behalf and
failed to represent them with undivided fidelity. Furthermore, with
regard to Sandra Demos, the record supports the Hearing Board's
finding that respondent used a confidence or secret of a client for
his own advantage in violation of Rule 4--101(b)(3). 87 Ill. 2d R.
4--101(b)(3).
We also believe the record supports the Hearing Board's
finding that respondent engaged in conduct prejudicial to the
administration of justice, thereby violating Rule 1--102(a)(5). 87
Ill. 2d R. 1--102(a)(5). Two of the women described incidents in
which respondent, during appointments he had scheduled with them in
his office to discuss their cases, made completely unsolicited
sexual advances which included undressing himself. Respondent's
sexual relations with all three clients originated solely from the
provision of legal services, since he did not know the women prior
to their retaining him or his firm. These abuses of respondent's
professional relationship with clients were clearly prejudicial to
the administration of justice.
Respondent's conduct is also sanctionable as overreaching. An
attorney commits overreaching when he takes undue advantage of the
position of influence he holds vis-a-vis a client. In re Stillo, 68
Ill. 2d 49, 53 (1977). By making lewd and unsolicited sexual
advances to his clients during appointments purportedly scheduled
to discuss their cases, and by causing the clients to believe that
their interests would be harmed if they refused his advances,
respondent took undue advantage of his position and thereby
committed overreaching.
We further believe the Hearing Board was justified in finding
that respondent's misconduct violated Supreme Court Rule 771 by
tending to defeat the administration of justice or to bring the
courts or the legal profession into disrepute. 94 Ill. 2d R. 771.
Respondent contends that his alleged sexual misconduct should
not be subject to sanction because there is no evidence that it
adversely affected his or his firm's representation of the women.
In this regard, we note that Jeanne Metzger testified that
respondent refused to consult with her after a court appearance
because he was angry that she had not brought a camera with her to
take nude pictures. Even absent such evidence of actual harm,
however, respondent's sexual conduct would still be sanctionable
because it posed a significant risk of damaging the clients'
interests. See In re Lewis, 118 Ill. 2d 357, 362-63 (1987).
Respondent also challenges the sufficiency of the evidence
that he engaged in the sexual activity alleged in the complaint.
Factual findings of the Hearing Board are entitled to great
deference, given the Board's superior capabilities as a trier of
fact, and will not be disturbed unless they are against the
manifest weight of the evidence. In re Timpone, 157 Ill. 2d 178,
196 (1993). Considering all of the testimony in this case, we
cannot say that the Hearing Board's findings are manifestly
erroneous.
For the above reasons, we approve the Hearing Board's findings
of fact and conclusions of law regarding respondent's sexual
misconduct with the former clients.
II. Respondent's Prior Testimony Before the Commission
Respondent contends that his admittedly false testimony before
the Commission is not sanctionable because the questions posed to
him were ambiguous, because information concerning his private
sexual relations was protected by the right of privacy, and because
he later recanted his false testimony. We find no merit in any of
these contentions. Respondent was clearly asked if he had ever had
sexual relations with Jane Doe, to which he falsely responded "no."
Furthermore, to the extent that respondent's sexual conduct
constituted an abuse of his professional position, that conduct
took on a public concern. Finally, we observe that respondent did
not voluntarily recant his false testimony, but rather recanted
only when confronted with undeniable pictorial evidence that he had
lied to the Commission. Under these circumstances, his false
testimony is entirely inexcusable. We therefore approve the Hearing
Board's findings that respondent violated Rules 8.1(a)(1),
8.4(a)(3), 8.4(a)(4), and 8.4(a)(5) of the Rules of Professional
Conduct and Supreme Court Rule 771. 134 Ill. 2d Rs. 8.1(a)(1),
8.4(a)(3), (a)(4), (a)(5), 771.
III. Propriety of Recommended Sanction
Respondent contends that the three-year suspension recommended
by the Hearing and Review Boards is an excessive sanction for the
instant misconduct. In deciding on an appropriate sentence, the
Hearing Board considered the following factors in aggravation:
respondent's pattern of misconduct, his selfish motive, the
nonconsensual nature of his sexual relations with the women, his
inability to appreciate the wrongfulness of his conduct, and his
false testimony before the Commission. In mitigation, the Board
considered that this is respondent's first charged instance of
misconduct, as well as the testimony of numerous witnesses
regarding respondent's good character and reputation in the legal
community.
We do not believe that the recommended three-year suspension
is an excessive sanction. Respondent violated numerous ethical
standards in his dealings with three separate clients. He then
compounded this misconduct by concealing and denying it while it
was under investigation. Moreover, we believe that the seriousness
of the violations in this case warrants imposition of the
suspension until further order of this court, as recommended by the
Hearing Board.
Accordingly, we approve in part and reject in part the
recommendation of the Review Board, and approve the recommendation
of the Hearing Board. Respondent is suspended from the practice of
law for three years and until further order of this court.
Respondent suspended.
JUSTICES BILANDIC and McMORROW took no part in the
consideration or decision of this case.
JUSTICE FREEMAN, 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, 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.