In Re Rotman

556 N.E.2d 243, 136 Ill. 2d 401, 144 Ill. Dec. 776, 1990 Ill. LEXIS 70
CourtIllinois Supreme Court
DecidedMay 30, 1990
Docket68433
StatusPublished
Cited by10 cases

This text of 556 N.E.2d 243 (In Re Rotman) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Rotman, 556 N.E.2d 243, 136 Ill. 2d 401, 144 Ill. Dec. 776, 1990 Ill. LEXIS 70 (Ill. 1990).

Opinion

JUSTICE CALVO

delivered the opinion of the court:

On February 25, 1987, the Administrator of the Attorney Registration and Disciplinary Commission filed a two-count complaint against respondent, Kenneth J. Rot-man, an attorney admitted to the practice of law in Illinois in 1982. The complaint alleged respondent had converted an aggregate amount of $15,038.05 from the estate of Moe Levy, an incompetent. Respondent filed an answer on April 10, 1987, and admitted committing the misconduct alleged in the complaint.

We must decide in this case whether respondent was denied due process by the procedures followed in the hearing process. If respondent was not denied due process, we must then determine the appropriate sanction for the proven misconduct of respondent.

I. Background

A hearing was held before the Hearing Board on May 21, 1987. Respondent and the Administrator agreed to proceed before a Hearing Board which consisted of two panel members, Mr. Fornelli and Mr. Popejoy. Each panel member submitted a separate report on August 5, 1987; both agreed the Administrator had proved the alleged misconduct by clear and convincing evidence. Panel member Popejoy recommended respondent be disbarred. Panel member Fornelli recommended respondent be suspended from the practice of law for two years.

Respondent brought exceptions to the recommendations of both panel members before the Review Board. The Administrator brought an exception to the recommendation of panel member Fornelli before the Review Board. On November 13, 1987, the Review Board remanded the matter to the Hearing Board for further proceedings consistent with Supreme Court Rule 753(c) (107 Ill. 2d R. 753(c)) and Commission Rule 201. Rule 753(c) requires the Hearing Board to consist of not less than three members. The concurrence of a majority is necessary for a decision by the Hearing Board.

Sheldon J. Sandman was designated by the chairman of the Hearing Board to be the third panel member. The Administrator filed a motion on November 18, 1987, with the Hearing Board to take the matter under advisement for a review of the record by panel member Sandman for the purpose of consultation with panel members Fornelli and Popejoy on an appropriate disciplinary sanction. The Administrator stated in his motion the facts were not in dispute. According to the Administrator, the record was sufficient to allow panel member Sandman to review the record and consult with panel members Fornelli and Popejoy to reach a decision pursuant to Supreme Court Rule 753(c)(2) and Commission Rule 201.

Respondent filed a response to the Administrator’s motion and argued that a limited de novo hearing was necessary to allow the Hearing Board to render an appropriate decision. Respondent stated in his response that material changes in circumstances occurred between the May 21, 1987, hearing by the Hearing Board and the remanding of the case to the Hearing Board and the appointment of panel member Sandman to the Hearing Board.

Respondent sought a de novo hearing for the limited purpose of presenting additional evidence in mitigation directed solely to the discipline to be imposed. Respondent contended the panel members present at the May 21, 1987, hearing had made credibility findings regarding the factors advanced by respondent in mitigation. Therefore, according to respondent, no Hearing Board recommendation of discipline would be appropriate without each panel member’s having the opportunity to observe respondent’s testimony and to personally assess respondent’s credibility. Respondent requested the de novo hearing be held by a panel composed of three new members.

On March 1, 1988, the Hearing Board ordered a de novo hearing for the limited purpose of hearing testimony and evidence as to changes in circumstances since the prior hearing. The limited de novo hearing was held on June 22, 1988, before panel members Popejoy, Fornelli and Sandman.

Panel member Sandman filed his report on August 3, 1988, concurring with panel member Fornelli’s recommendation that respondent be suspended for two years. Respondent filed exceptions with the Review Board to panel member Popejoy’s recommendation of disbarment and to panel members Fornelli’s and Sandman’s recommendation of a two-year suspension. On that same day, respondent requested the opportunity, pursuant to Supreme Court Rule 753(e)(2) and Commission Rule 302, for the submission of a brief and for oral argument before the Review Board. The Review Board, on September 13, 1988, allowed respondent to file a brief limited to the issue whether the remanded hearing should have been conducted de novo before a different hearing panel. Both the Administrator and respondent submitted briefs on this issue, and oral argument before the Review Board occurred on December 9, 1988.

The Review Board filed its report and recommendation on December 13, 1988. The findings of fact and conclusions of law of the Hearing Board were adopted by the Review Board. A majority of the Review Board recommended respondent receive a two-year suspension from the practice of law. A dissenting member recommended respondent be disbarred. The Review Board did not address the issue of de novo review.

The Administrator filed a petition for leave to file exceptions to the recommendation of the Review Board of a two-year suspension. Respondent filed exceptions to the recommendation made by the Review Board. This court allowed the Administrator’s petition on March 29, 1989.

In this case, respondent does not dispute that he, without authority, knowingly converted $15,038.05 from the estate of Moe Levy, a person adjudicated incompetent to manage his own financial affairs. Respondent only disputes the degree of discipline to be imposed.

Respondent was the only person who testified at the hearing held on May 21, 1987, before panel members Popejoy and Fornelli. Respondent graduated from the University of Illinois with a degree in accounting. While an undergraduate, respondent was a member of a fraternity; respondent served as fraternity treasurer for two years. Respondent also served on the board of directors for the Illini Publishing Company.

Respondent graduated from Northwestern Law School. After respondent’s first year in law school, respondent was employed as a summer associate with the law firm of Kirkland and Ellis in Chicago, and continued working for this law firm during the first semester of his second year in law school. During respondent’s second semester of his second year of law school, respondent was employed with the law firm of McDermott, Will and Emery in Chicago. Respondent continued working for the McDermott firm during the summer after his second year of law school, during his third year of law school, and continued working as an associate attorney after graduating from law school. After working for the McDermott firm as an associate attorney for a little over a year, respondent started working for the law firm of Wildman, Harrold, Allen and Dixon in Chicago.

Respondent was employed with the Wildman firm from May 31, 1983, until May 25, 1984. One of respondent’s responsibilities while at the Wildman firm was the handling of the estate of Moe Levy, an incompetent.

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Cite This Page — Counsel Stack

Bluebook (online)
556 N.E.2d 243, 136 Ill. 2d 401, 144 Ill. Dec. 776, 1990 Ill. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rotman-ill-1990.