In re ANTHONY JOSEPH POLITO, Petitioner
No. 68664
Supreme Court of Illinois
132 Ill. 2d 294;
547 N.E.2d 465;
1989 Ill. LEXIS 154;
138 Ill. Dec. 298
November 22, 1989, Filed
PRIOR HISTORY:
[***1]
Disciplinary proceeding.
DISPOSITION: Petition denied.
COUNSEL: Georgina M. Mahoney, of Chicago, for the Administrator of the Attorney
Registration and Disciplinary Commission.
George B. Collins, of Collins
& Bargione, of Chicago, for petitioner.
JUDGES: CHIEF JUSTICE MORAN delivered the opinion of the court.
OPINIONBY: MORAN
OPINION:
[*296]
[**466]
Petitioner, Anthony Joseph Polito, was
disbarred on consent (107 Ill. 2d R. 762) on April 20, 1984. On June 17, 1988,
petitioner filed his amended petition for
reinstatement to the roll of attorneys pursuant to Supreme Court Rule 767 (107 Ill. 2d R.
767). The Administrator of the Attorney Registration and Disciplinary
Commission (ARDC) filed objections to the petition. The
hearing panel found that petitioner was rehabilitated and
recommended that the petition be allowed. A majority of the Review Board also
recommended that the petition be allowed. One member of the Review Board dissented and
recommended that the petition be denied. The Administrator filed exceptions to the report
and
recommendation of the Review Board (107 Ill. 2d R. 753(e)(5)).
The only issue presented is whether petitioner should be
reinstated to the roll of attorneys.
Petitioner was admitted to practice law in Illinois
[***2] on November 18, 1965. Following his admission, petitioner
held a variety of legal positions until 1970, when he opened his private
practice. In 1976, petitioner converted a client's $ 120 bond refund. Four
years later, in October 1980, while disciplinary proceedings were pending
against him for the 1976
conversion, petitioner converted approximately $ 4,400 in clients' funds.
On November 26, 1980, a Review Board reprimanded petitioner for the 1976
conversion. Less than three years later, on October 28, 1983, a Review Board
recommended that petitioner be
disbarred for the 1980
conversions; the 1976
conversion was an aggravating factor. On April 20,
[*297] 1984, petitioner was
disbarred on consent (107 Ill. 2d R. 762).
On April 25, 1984, five days after petitioner was
disbarred on consent, Michael Duerr retained him as defense counsel and received his
business cards, which represented that he was an
attorney. On May 16, 1984, petitioner went to court, entered his appearance on
Duerr's behalf and obtained a continuance. On June 20, 1984, petitioner and
Duerr went to the
courthouse for a scheduled court date. While at the
courthouse, an assistant State's Attorney approached
[***3] petitioner and confronted him with his
disbarment and engagement in the
unauthorized practice of law. Petitioner fled the
courthouse. Duerr later learned that petitioner was not licensed to practice law.
On September 12, 1984, petitioner applied for a position as an automobile
salesman at Mont Clare Pontiac in Chicago. In his
employment application, petitioner listed his present position as a
"SELF-EMPLOYED ATTORNEY," when, in fact, he had been
disbarred five months earlier.
On September 19, 1984, petitioner
began working at Mont Clare Pontiac. On January 15, 1985, petitioner's employment with Mont
Clare Pontiac was
terminated, and one week later, on January 21, 1985, he
began working at Borg Pontiac in Downers Grove, Illinois.
On January 25, 1985, petitioner sent letters to his clients notifying them that
he could not continue to represent them. Supreme Court Rule 764 requires such
letters
[**467]
and provides in part:
"[w]ithin 21 days after an attorney has been * * *
disbarred on consent * * * the attorney shall notify * * * all clients to whom he is
responsible for pending matters, of the fact that he cannot continue to
represent them." (107 Ill. 2d R. 764.) Consequently, the letters
[***4] which petitioner sent to his clients
failed to comply
[*298] with Rule 764, because they were sent over nine months after he was
disbarred on consent.
On February 25, 1985, petitioner's employment at Borg Pontiac was
terminated. On March 4, 1985, petitioner
began working at Thomas Dodge in Orland Park, Illinois. On March 8, 1985, petitioner
voluntarily
terminated his employment at Thomas Dodge in order to begin working at Olympia Dodge in
Countryside, Illinois. On March 9, 1985, petitioner
began working at Olympia Dodge and three weeks later, on March 27, 1985, his employment was
terminated. On April 11, 1985, petitioner
began working as a telephone salesman for Dial America Marketing, Inc., a telemarketing firm.
On May 10, 1985, while still employed by Dial America Marketing, petitioner
submitted a verified
employment application for a public aid caseworker position with the Illinois Department of Public
Aid (IDPA). Petitioner's verified
employment application contained the following misrepresentations: (1) in response to the question
"Have you ever been discharged from a job?" petitioner indicated
"no," when, in fact, he had been
disbarred as an attorney and discharged from
[***5] three automobile salesman positions; (2) petitioner indicated that he was a
"SELF-EMPLOYED [ATTORNEY]" from July 1970 to September 1984, and further indicated that his reason for
leaving his practice was
"PERSONAL," when, in fact, he had been
disbarred in April 1984; (3) petitioner indicated that he had been employed at Mont
Clare Pontiac from September 1984 through April 1985, when, in fact, his
employment was
terminated by Mont Clare Pontiac on January 15, 1985. On May 11, 1985, petitioner was
hired by the IDPA and he
began working there on May 13, 1985.
On May 1, 1987, less than two years after he
began working at the IDPA, petitioner submitted a false
travel
voucher and record for the period of March 23, 1987, through April 30, 1987. The
false documents were submitted
[*299] in order to conceal petitioner's unauthorized absences from work. On May 11,
1987, petitioner asked
about the status of his
travel
voucher and his
supervisor told him that there were questions about it. Petitioner then admitted that he
had submitted a false
travel
voucher and record. In order to remedy the falsified documents, petitioner prepared a
list of the visits that he failed to make and submitted
[***6] a corrected
travel
voucher and record. Petitioner also testified that he may have submitted false
travel
vouchers and records in both January 1987 and February 1987.
On June 17, 1988, petitioner filed his amended petition for
reinstatement. On July 6, 1988, petitioner told his IDPA
supervisor that he needed the day off because his daughter was sick, when, in fact, he
wanted the day off to attend a deposition in the present action.
The following facts occurred prior to petitioner's
disbarment, but are relevant to his character. After opening his private practice in
1970, petitioner accepted cash from clients as payment
for professional services rendered; however, he would not always report his
cash income to the
proper authorities. Petitioner continued this practice until 1981, when he was audited by both the
Internal Revenue Service (IRS) and the Illinois Department of Revenue (IDR) for
the tax year 1980. The IRS and the IDR discovered petitioner's failure to
report cash income in 1980. Consequently, petitioner paid both a civil fraud
penalty and the taxes on the unreported 1980 cash income.
Between the mid-1970s and the early-1980s, petitioner hustled clients and paid
bribes
[***7] to sheriffs and clerks outside the courtrooms at 11th and State Streets.
Petitioner paid the
bribes in order to get his cases called by the court.
In 1979, a judge, later prosecuted and convicted of acts involving dishonesty,
approached
[**468]
petitioner and proposed a
[*300]
fee-splitting arrangement to him. Although petitioner did
not enter into a
fee-splitting arrangement, he
failed to report the judge's proposal to the
proper authorities.
In 1980, petitioner offered to pay that judge $ 150 if he would make a ruling
favorable to petitioner's client. The judge accepted the offer and ruled in
favor of petitioner's client. Petitioner informed the ARDC of his
bribe to the judge in 1987, prior to his filing this petition for
reinstatement.
Rule 767(a) permits an attorney to petition for
reinstatement no less than three years after entry of the order allowing
disbarment on consent. (107 Ill. 2d R. 767(a).) When a petition for
reinstatement has been filed, the petitioner has the burden of proving by clear and
convincing evidence that he should be
reinstated to the
practice of law. (In re Alexander (1989), 128 Ill. 2d 524, 533.) In considering a petition for
reinstatement,
[***8] the focus is on the
petitioner's rehabilitation and character.
In re Carnow (1986), 114 Ill. 2d 461, 469.
Petitioner emphasizes that both the
hearing panel and the Review Board
recommended that he should be
reinstated to the
practice of law. However, the
recommendations of both the
hearing panel and the Review Board are merely advisory and are not binding on this court. (Alexander, 128 Ill. 2d at 534.) Accordingly, this court alone has the authority to decide whether or not a
petition for
reinstatement will be granted.
Alexander, 128 Ill. 2d at 534.
Our review of this action is guided, but not limited, by the six factors listed
in Rule 767(f):
"(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;
[*301] (4) when applicable, whether petitioner has made restitution;
(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." (107
[***9] Ill. 2d R. 767(f).)
Furthermore, while this court endeavors for uniformity in
reinstatement cases, each petition for
reinstatement is unique and must be decided on its individual facts.
Alexander, 128 Ill. 2d at 539.
The first factor under Rule 767(f) is
"the nature of the
misconduct for which the petitioner was disciplined." (107 Ill. 2d R. 767(f)(1).) At the time that petitioner consented to his
disbarment, there was pending before this court a Review Board
recommendation that he be
disbarred for violating Rule 9--102 of the Code of Professional Responsibility (107 Ill.
2d R. 9--102 (Preserving Identity of Funds and Property of a Client)).
Converting client funds is a serious violation of the Code of Professional Responsibility
which brings the entire
legal profession into disrepute. (In re Holz (1988), 125 Ill. 2d 546, 559.) More importantly,
converting client funds is particularly reprehensible and offensive, because it destroys
the foundation of the attorney-client relationship: trust.
The second factor under Rule 767(f) is
"the maturity and experience of the petitioner at the time
discipline was imposed." (107 Ill. 2d R. 767(f)(2).)
[***10] Petitioner had been practicing law for over 18 years when he consented to his
disbarment. Therefore, he was not a neophyte attorney whose
misconduct can be attributed to youth and inexperience. See
Carnow, 114 Ill. 2d at 470.
The third factor under Rule 767(f) is
"whether the petitioner recognizes the nature and
seriousness of the
misconduct." (107 Ill. 2d R. 767(f)(3).) In both his petition and testimony before the
hearing panel, the petitioner
[*302] expressed his regret and stated that he recognizes the nature and
seriousness
[**469]
of his
misconduct. However, petitioner's recognition of the nature and
seriousness of his
misconduct is subject to doubt, because he has contradicted his statements by his
conduct. See
In re Schechet (1985), 105 Ill. 2d 516, 522.
Since the opening of his sole practice in 1970, petitioner: (1)
failed to report all his cash income to the IRS and the IDR for a 10-year period; (2) hustled
clients and paid
bribes to sheriffs and clerks for nearly 10 years; (3)
failed to report a judge to the
proper authorities after the judge proposed a
fee-splitting arrangement to him; (4) paid a
bribe to a judge; (5) converted client
[***11] funds on more than one occasion; (6) engaged in the
unauthorized practice of law in his
"representation" of Duerr; (7) misrepresented himself on employment applications following his
disbarment; (8)
failed to comply with the requirements of
Supreme Court Rule 764; (9) falsified his IDPA
travel
voucher and record; and (10) lied to his IDPA
supervisors. Consequently, petitioner's long history of improper conduct contradicts his
alleged recognition of the nature and
seriousness of his
misconduct.
The fourth factor under Rule 767(f) is
"when applicable, whether petitioner has made restitution." (107 Ill. 2d R. 767(f)(4).) There is no doubt that petitioner has made
full restitution of the 1980
conversions and the 1976
conversion. In addition, petitioner made
full restitution of the money he accepted from Duerr.
The fifth factor under Rule 767(f) is
"the petitioner's conduct since
discipline was imposed." (107 Ill. 2d R. 767(f)(5).) Since his
disbarment on consent in 1984, petitioner has: (1) engaged in the
unauthorized practice of law in his
"representation" of Duerr; (2) misrepresented himself on employment applications; (3)
failed to comply with the requirements of Supreme Court Rule
[***12] 764; (4)
[*303] falsified his IDPA
travel
voucher and record; and (5) lied to his IDPA
supervisors.
Petitioner emphasizes his work record at the IDPA, his progress in regular
psychotherapy sessions, his
volunteer work as an adult leader for the Boy Scouts and his
volunteer work as a tutor in the Adult Literacy Program at Moraine Valley Community College
as evidence of his rehabilitation. Petitioner's emphasis on his work record at
the IDPA is entirely misplaced, because submitting false documents and lying to
supervisors is completely unacceptable conduct. Furthermore, while his
volunteer work and progress in psychotherapy are commendable and reflect favorably upon him,
we cannot overlook the remainder of his less than sterling conduct.
In order to be admitted to the
practice of law in Illinois, an applicant must establish that
"he possesses the
good moral character and general fitness necessary for the
practice of
law." (In re DeBartolo (1986), 111 Ill. 2d 1, 5.) Similarly, in a
reinstatement action, the petitioner must reestablish his
good moral character and general fitness to practice law. One important element of
good moral character and general fitness
[***13] to practice law is honesty. (DeBartolo, 111 Ill. 2d at 6.) Petitioner's engagement in the
unauthorized practice of law, misrepresentations on employment applications, falsification of IDPA documents
and lying to IDPA
supervisors reflect his penchant for dishonesty. Consequently, petitioner's conduct since
disbarment has demonstrated a serious lack of concern for the truth.
The sixth factor under Rule 767(f) is
"the petitioner's candor and forthrightness in presenting evidence in support of
the petition." (107 Ill. 2d R. 767(f)(6).) There is no doubt that petitioner has been candid
and forthright throughout these
proceedings. As the
hearing panel stated:
"[Petitioner] has told us things that would be painful for any individual."
[*304] In reviewing petitioner's petition, this court must consider
"the impact that [his] conduct has, or will have, on the
legal profession, the public and the administration of justice." (In re Kuta (1981), 86 Ill. 2d 154, 157.) We recognize that petitioner has made
full restitution and has been can-did and forthright throughout these proceedings.
[**470]
In contrast, we recognize the serious nature of
converting client
[***14] funds, petitioner's maturity and experience at the time he was
disbarred, his alleged recognition of the nature and
seriousness of his
misconduct and his lack of honesty since
disbarment. Petitioner's conduct since
disbarment continues to undermine the
legal profession, the public and the administration of justice in this State. Consequently,
this court does not believe that petitioner has clearly and convincingly
established that he is either rehabilitated and ready to return to the
practice of law or an individual of
good moral character.
For the aforementioned reasons, petitioner's
petition for
reinstatement to the roll of attorneys is denied.
Petition denied.
