In re FRED ALLEN RICHMAN, Attorney, Petitioner.
Docket No. 87562
SUPREME COURT OF ILLINOIS
191 Ill. 2d 238;
730 N.E.2d 45;
2000 Ill. LEXIS 381;
246 Ill. Dec. 365
April 20, 2000, Opinion Filed
PRIOR HISTORY:
[***1]
CASE NUMBER: DC97RT3003.
DISPOSITION: Petition denied.
COUNSEL: For Disciplinary Commission, APPELLANT: Ms. Susan Frederick Rhodes, Attorney
Reg.
& Disc. Comm., Chicago, IL.
For Fred Allen Richman, APPELLEE: Mr. Warren Lupel, Katz, Randall
& Weinberg, Chicago, IL. Mr. Jonathan L. Loew, Katz, Randall
& Weinberg, Chicago, IL.
JUDGES: JUSTICE MILLER delivered the opinion of the court. JUSTICE BILANDIC took no
part in the consideration or decision of this case. JUSTICE McMORROW,
dissenting. JUSTICE FREEMAN joins in this dissent.
OPINIONBY: MILLER
OPINION:
[**46]
[*239]
JUSTICE MILLER delivered the opinion of the court:
The petitioner, Fred Allen Richman, was
disbarred on consent in 1990. In 1997 he filed the present petition, seeking
reinstatement to the roll of attorneys admitted
[*240] to practice law in Illinois. Both the Hearing Board and the Review Board
recommended that the petition be allowed. The Administrator of the Attorney Registration
and Disciplinary Commission has filed exceptions to that
recommendation. We now deny the petition.
The petitioner was licensed to practice law in Illinois in 1959. At the time of
the
misconduct relevant here, the petitioner and another lawyer operated a firm that
concentrated in personal injury and worker's compensation cases. In October
1984, an elderly man, Herbert Bluhm, fell at the Tinley Park Plaza shopping
center. Bluhm's family retained the petitioner and his firm to represent him
[***2] in the matter. Wausau Insurance Company insured Tinley Park Plaza. In December
1985, a
paralegal at the petitioner's law firm contacted Michael Wachala, a claims
adjuster for Wausau. The
paralegal offered to pay Wachala money in exchange for Wachala's assistance. Wachala
reported this conversation to his supervisor at Wausau. In January 1986 Wachala
met with the
paralegal at the law firm's office. The
paralegal said that Wachala could receive 5% of the amount for which the Bluhm case
settled, and the
paralegal reduced the demand in the case from $ 50,000 to $ 40,000 to make Wachala look
good. The
paralegal said that when the case was settled Wachala would receive his payment from the
petitioner. The
paralegal then introduced Wachala to the petitioner, who told Wachala that Wachala was
going to have to use his imagination on the case and that he did not need to
tell everyone what they were doing. Wachala returned to the law firm several
weeks later. He gave the
paralegal a check from Wausau for $ 40,000 in settlement of the Bluhm case, and Wachala
received $ 2,000 in cash.
Working with federal postal inspectors, Wachala later contacted the petitioner
regarding a fictitious Structural
[***3] Work Act case. Wachala and the petitioner discussed the case several times
between May and July 1986. Wachala
[*241] told the petitioner about the case. When the petitioner expressed interest in
representing the fictitious claimant, referred to as Don Williams, Wachala
asked if he could receive money in advance. The petitioner replied that he
could. The petitioner later met with and was retained by the person who he
believed was Williams. At a later meeting at which Wachala and the petitioner
discussed the case and its prospects, the petitioner said that he would give
Wachala
"a few grand" that day and additional money once the case was settled. After asking the
firm's bookkeeper for $ 3,000, the petitioner gave Wachala that sum in cash.
The petitioner again told Wachala not to talk about the matter.
Wachala asked if he would receive additional money for his work on the case in
the future, and the petitioner assured Wachala that he would, with the amount
calculated as a percentage of the settlement.
The petitioner was indicted in federal court in November 1988 on eight counts
of
mail fraud and two counts of
wire fraud, based on his dealings with Wachala in the two cases. In February 1990
[***4] he was
convicted on those 10 counts after a jury trial. An additional count, charging
obstruction of justice, was dismissed prior to trial. The petitioner was later
sentenced to concurrent terms of five years' imprisonment on counts I through
IX and to a consecutive term of five years' probation on count X. The
petitioner was also ordered to pay $ 40,000 in
restitution to Wausau. The
[**47] court of appeals affirmed the petitioner's convictions.
United States v. Richman, 944 F.2d 323 (7th Cir. 1991). After serving a total of 15 months in
prison, the petitioner was paroled to a
halfway house, where he spent another five months. The petitioner was released from the
halfway house on November 24, 1991; his parole ended on November 24, 1993, and his probation
ended on February 1, 1995.
Pursuant to Supreme Court Rule 762 (134 Ill. 2d R. 762(a)), the petitioner
moved to have his name stricken
[*242] from the roll of attorneys admitted to practice law in Illinois in May 1990.
In June 1993, he filed the first of what would eventually total three petitions
for
reinstatement. During the hearing on the initial petition, the petitioner admitted that on
three or four occasions while practicing
[***5] law he had paid $ 300 to
adjusters for State Farm Insurance Company in an effort to expedite the processing of
clients' claims. The Hearing Board
recommended that
reinstatement be denied. In support of that
recommendation the Hearing Board noted that the petitioner's offenses were serious, that the
petitioner had used illegal drugs, that the offenses were relatively recent,
and that the petitioner had not yet completed his term of probation. The
Hearing Board further
recommended that the petitioner make
restitution for the
bribes he had paid to the State Farm
adjusters. Rather than seek review of the Hearing Board's adverse decision, the
petitioner withdrew his petition for
reinstatement.
The
petitioner filed a second petition for
reinstatement in November 1995. The Hearing Board again
recommended that the petition be denied, basing its decision on concerns similar to those
that underlay its decision on the petitioner's initial request. The Hearing
Board also noted that the petitioner had failed to make
restitution for the State Farm
bribes and that he had not performed any charitable work. The petitioner again
withdrew his petition rather than seek review of the Hearing Board's unfavorable
[***6] decision.
The
petitioner filed the present petition for
reinstatement on October 10, 1997. The Administrator filed objections to the petition. In
the proceedings before the Hearing Board, the petitioner described his
activities since his release from
prison, in 1991. The petitioner stated that he now does
collection work, collecting money owed by patients to medical
providers. Some of the medical
[*243]
providers he works for are those to whom he referred business when he practiced law. Two
of the
providers have been named as defendants in a federal suit brought by State Farm over
allegedly deceptive billing practices.
The petitioner also testified that in February 1998 he paid $ 1,200 to the
Illinois Bar Foundation in compensation for his
bribes to the State Farm
adjusters. The petitioner stated that since December 1996 he has volunteered at a local
hospital. He acknowledged that he used cocaine in the 1980's but testified that
he has not done so since
1990. The petitioner also said that he spends a substantial amount of time and
energy caring for his wife and for one of his sons, who are mentally ill. The
petitioner expressed remorse and regret for his
misconduct, and he insisted that
[***7] he will not engage in similar
misconduct in the future.
The Hearing Board, with one member dissenting,
recommended that the petitioner be
reinstated. The majority believed that the
passage of time since the petitioner's
misconduct and evidence of the petitioner's
rehabilitation during the intervening years warranted
reinstatement, even though the
misconduct was serious. The majority observed that the petitioner had acknowledged the
nature and
seriousness of his
misconduct and that he had made a contribution to the Illinois Bar Foundation in an
amount equal to his admitted
bribes to the State Farm
adjusters. Finally, the majority believed that the petitioner had been candid in his
testimony before the Board and thought that the petitioner's professional,
civic, and family activities since his
disbarment constituted strong
[**48] proof of his
rehabilitation. The
dissenting member of the Hearing Board believed that the petitioner's request
for
reinstatement should be denied. The dissenting member focused on the
seriousness of the petitioner's
misconduct, his failure to recognize the nature of his offenses, and his continuing
relationships
[*244] with many of the same medical
providers with whom he
[***8] had previously worked as a lawyer.
The Review Board unanimously affirmed the Hearing Board's
recommendation that the petitioner be
reinstated. The Review Board concluded that none of the Hearing Board's factual findings
were against the manifest weight of the evidence. We allowed the Administrator
to submit exceptions to the Review Board's report and
recommendation. 166 Ill. 2d R. 753(e). The
petitioner filed an answer to the Administrator's exceptions.
A lawyer who has been
disbarred on consent must wait at least three years from the date of the order allowing
his or
disbarment before filing a petition for
reinstatement. 134 Ill. 2d R. 767(a). In addition, a lawyer who has withdrawn
a previously filed petition for
reinstatement must wait at least one year after the withdrawal of the previous petition
before filing a new petition. 134 Ill. 2d R. 767(a). A
disbarred lawyer who seeks to resume the
practice of law has the burden of proving, by
clear and convincing evidence, that he or she should be
reinstated.
In re Fleischman, 135 Ill. 2d 488, 495, 142 Ill. Dec. 838, 553 N.E.2d 352 (1990);
In re Anglin, 122 Ill. 2d 531, 539, 120 Ill. Dec. 520, 524 N.E.2d 550 (1988);
[***9]
In re Berkley, 96 Ill. 2d 404, 410, 71 Ill. Dec. 694, 451 N.E.2d 848 (1983). Supreme Court Rule 767(f) sets forth the following guidelines
for use in deciding whether a petition for
reinstatement should be granted:
"The [hearing] panel shall consider the following factors, and such other
factors as the panel deems appropriate, in determining the petitioner's
rehabilitation, present
good character and current knowledge of the law:
(1) the nature of the
misconduct for which the petitioner was disciplined;
(2) the maturity and experience of the petitioner at the time discipline was
imposed;
(3) whether the petitioner recognizes the nature and
seriousness of the
misconduct;
(4) when applicable, whether petitioner has made
restitution;
[*245] (5) the petitioner's conduct since discipline was imposed; and
(6) the petitioner's candor and forthrightness in presenting evidence in
support of the petition." 134 Ill. 2d R. 767(f).
Given the
seriousness of the
misconduct committed by the petitioner, his age and experience at the time of the
wrongdoing, his lengthy delay in making
restitution for the additional
bribes to the State Farm
adjusters, and his continued and anticipated
[***10] employment
in an area of law related to his original field of practice, we believe that
the present petition for
reinstatement should be denied.
First, the
misconduct that led to the petitioner's
disbarment on consent was serious. As noted earlier, in February 1990, the petitioner was
convicted in federal court on eight counts of
mail fraud and two counts of
wire fraud for his role in bribing a claims
adjuster employed by Wausau Insurance Company in 1985 and 1986. The petitioner's
offenses revealed a person who thought nothing of violating the most basic
rules of our
legal system. The petitioner was
disbarred on consent prior to the initiation and resolution of any disciplinary
proceedings stemming from his federal convictions. That
misconduct, however, would have doubtless resulted in a severe sanction had the petitioner
not first pursued his own
disbarment. The fraudulent conduct by the petitioner in the two cases that led to his
federal convictions
struck at the core of our
legal system and was antithetical to our society's most
[**49] basic principles.
"The
seriousness of a petitioner's past
misconduct is unquestionably an important consideration [citations] which cannot be
minimized
[***11] by subsequent exemplary conduct."
In re Berkley, 96 Ill. 2d 404, 410, 71 Ill. Dec. 694, 451 N.E.2d 848 (1983).
Moreover, the petitioner has committed other
misconduct as well. During the proceedings on the petitioner's first petition for
reinstatement, the petitioner admitted
[*246] that he had paid a total of $ 1,200 in
bribes to claims
adjusters employed by State Farm Insurance Company to speed up the processing of cases.
In addition, the petitioner said that he had regularly used cocaine from the
mid-1980's to the day preceding his federal incarceration, in 1990. Although
the petitioner's additional
bribes and illegal drug use did not result in criminal
prosecution, we should consider this additional
misconduct in assessing the
seriousness of the petitioner's history of
wrongdoing.
In re Rothenberg, 108 Ill. 2d 313, 324-25, 91 Ill. Dec. 730, 484 N.E.2d 289 (1985). The petitioner was admitted to the Illinois bar in 1959, and he began
practicing law in 1960. Thus, at the time of these events the petitioner had
been a lawyer for more than 25 years. We believe that his
misconduct must be considered particularly egregious in light of his lengthy experience
[***12] as a lawyer.
One circumstance further weighing against
reinstatement is the petitioner's delay in making
restitution for the additional
bribes to the State Farm
adjusters. The petitioner did not make
restitution for these additional
bribes until February 1998, several months after he filed the present petition for
reinstatement-his third request for that relief-and a
number of years after the Hearing Board had initially suggested
restitution. In denying the petitioner's first petition for
reinstatement, in August 1994, the hearing panel
recommended that the petitioner make a payment in
restitution of the additional
bribes. The petitioner did not do so, however. Two years later, the hearing panel
again spoke of the need for
restitution when it denied the petitioner's second petition for
reinstatement. It was not until several months after the petitioner submitted the present
request for
reinstatement that he saw fit to pay
restitution, choosing then to make a charitable contribution in an
amount equal to his admitted
bribes. See
In re Fleischman, 135 Ill. 2d 488, 498, 142 Ill. Dec. 838, 553 N.E.2d 352 (1990) (ordering
restitution in an
amount equal to
[*247] the sum of the
[***13] petitioner's
bribes to officials, in the
absence of specific evidence of the value of the benefit received by the
petitioner in making the
bribes).
Finally, the petitioner has failed to remove himself from the milieu that
fostered his earlier
misconduct. He currently performs
collection work for a number of different medical
providers; he had referred clients to some of these
providers while he was still in practice. Moreover, two of the employers the petitioner
worked for at the time he filed his
reinstatement petition have been sued by State Farm Insurance Company for fraud.
Recommendations of the Hearing and Review Boards are only advisory and are not binding on this
court.
In re Polito, 132 Ill. 2d 294, 300, 138 Ill. Dec. 298, 547 N.E.2d 465 (1989);
In re Alexander, 128 Ill. 2d 524, 534, 132 Ill. Dec. 454, 539 N.E.2d 1260 (1989);
In re Anglin, 122 Ill. 2d 531, 538, 120 Ill. Dec. 520, 524 N.E.2d 550 (1988). As a general matter, we defer to the Hearing Board and its assessment of the
testimony presented in that forum. As the Administrator notes in her
exceptions, however, the Hearing Board made several negative findings under the
[***14] criteria listed in Rule 767 yet went on to explain that each adverse finding
by itself was insufficient to bar the petitioner's
reinstatement. Perhaps the principal justification for the favorable
recommendations by the Hearing and Review Boards arises from the
passage of time since the petitioner's
misconduct and the perception that no amount of
wrongdoing should, by itself, forever preclude a lawyer's
reinstatement.
[**50] A majority of the Hearing Board gave voice to these notions in recommending
the petitioner's
reinstatement. Both of these propositions are false, however.
"The mere
passage of time is not a
sufficient ground for
reinstatement *** ."
In re Thomas, 76 Ill. 2d 185, 193, 28 Ill. Dec. 531, 390 N.E.2d 890 (1979). Moreover, this court has stated that some
misconduct will be sufficient to forever bar a lawyer from
reinstatement.
"Clearly, there are certain infractions that are so serious that the attorney
committing them should never be
[*248] readmitted to the
practice of law."
In re Rothenberg, 108 Ill. 2d 313, 326, 91 Ill. Dec. 730, 484 N.E.2d 289 (1985). In short, there is no presumption in favor of
reinstatement, and here the burden remains on
[***15] the petitioner to demonstrate, by
clear and convincing evidence, that he should be
reinstated to the
practice of law. He has not done so.
For the reasons stated, the petition for
reinstatement is denied.
Petition denied.
JUSTICE BILANDIC took no part in the consideration or decision of this case.
DISSENTBY: McMORROW
DISSENT: JUSTICE McMORROW, dissenting:
Although, as the majority observes, this court is not bound by the
recommendations of the Hearing and Review Boards in deciding the disposition of a petition for
reinstatement (see
In re Parker, 149 Ill. 2d 222, 233, 172 Ill. Dec. 188, 595 N.E.2d 549 (1992)), the factual findings of the Hearing Board are entitled to deference because
the Board
"is able to observe the demeanor of witnesses, judge their credibility and
evaluate conflicting testimony" (
In re Fleischman, 135 Ill. 2d 488, 496, 142 Ill. Dec. 838, 553 N.E.2d 352 (1990)). Based on the Hearing Board's factual findings with respect to the Rule 767(f)
factors in this case, I cannot agree with the majority's rejection of the
Hearing and Review Boards'
recommendations that petitioner be
reinstated to the
practice of law.
In my view, the
majority
[***16] fails to afford the proper deference to the factual findings of the Hearing
Board. In support of its decision to deny petitioner's request for
reinstatement, the majority relies on petitioner's
"delay in making
restitution for the additional
bribes to the State Farm
adjusters" and his
"failure to remove himself from the milieu that fostered his earlier
misconduct." The majority's use of these facts to support denial of the petition for
reinstatement is at odds with the Hearing Board's findings.
[*249] The Hearing Board found no delay in petitioner's
payment of restitution to Wausau. He paid Wausau $ 40,000 in 1992. Also, although petitioner waited
until 1998 to donate $ 1,200 to charity as compensation for his
bribes to State Farm
adjusters, the Hearing Board found that this $ 1,200 was not
restitution in a
"strict sense" and that petitioner was not required to pay this amount until after August
1996. Moreover, petitioner testified that he did
not pay the $ 1,200 sooner because he was unsure to whom to make payment. The
Hearing Board found petitioner's testimony
"honest, sincere and credible."
Similarly, the Hearing Board found no impropriety associated with petitioner's
present employment
[***17] relationship with medical
providers to whom he had previously referred business. According to the Hearing Board,
these relationships were unrelated to petitioner's previous
misconduct, and petitioner provided these medical
providers with a legitimate
collection service. In light of these findings by the Hearing Board, the majority's
reliance on the delay in petitioner's
payment of restitution and his relationships with certain medical
providers as reasons to deny the
reinstatement petition is not appropriate. See
In re Silvern, 92 Ill. 2d 188, 194-95, 65 Ill. Dec. 272, 441 N.E.2d 64 (1982) (delay in
payment of restitution should not be used to defeat petition for
reinstatement where delay
caused in part by petitioner's inability to remember identity of insurance
companies affected by his fraudulent activity).
[**51] I also believe that the majority fails to give adequate consideration to the
Rule 767(f) factors that show petitioner's
good character and
rehabilitation. The Hearing Board found that the petitioner's
misconduct was extremely serious and that he was an experienced attorney when it
occurred. These two Rule 767(f) factors are unfavorable to petitioner's request
[***18] for
reinstatement. However, the Hearing Board's findings with respect to
[*250] the remaining four factors indicate that
reinstatement is nevertheless appropriate.
The Hearing Board determined that the petitioner was credible, had recognized
the nature and
seriousness of his
misconduct, and had expressed remorse for his actions. In addition, the Hearing Board
found that the petitioner had made
restitution by paying Wausau $ 40,000 and by giving $ 1,200 to a charity. According to the
findings of the Hearing Board, the petitioner also had been candid and
forthright in presenting
evidence in support of his petition, and his conduct since his
disbarment demonstrated his
good character. He had overcome his drug addiction and had not used illegal drugs since 1990,
he had been gainfully employed since his release from
prison, he had performed charitable work, and he had provided extensive care and
support for his mentally ill wife and son.
Although petitioner's
misconduct was indeed serious, the Hearing Board's findings demonstrate that petitioner
presented
clear and convincing evidence of his
good character and
rehabilitation. Accordingly,
reinstatement is appropriate. See,
e.g.,
Fleischman, 135 Ill. 2d at 497
[***19] (finding
sufficient proof of
rehabilitation despite the petitioner's bribery of public officials and 20 years of
experience as an attorney);
In re Berkley, 96 Ill. 2d 404, 410-11, 71 Ill. Dec. 694, 451 N.E.2d 848 (1983) (finding
sufficient proof of
rehabilitation even though the Hearing
Board had characterized the petitioner's
misconduct as
"so bad that it could scarcely be worse"). I would grant the petition for
reinstatement and respectfully dissent from the majority's refusal to do so.
JUSTICE FREEMAN joins in this dissent.
