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Docket No. 92832-Agenda 11-March 2002.

In re PAUL M. STORMENT, JR., Attorney, Respondent.

Opinion filed November 21, 2002.

JUSTICE KILBRIDE delivered the opinion of the court:

Central to our disposition of this case is the question ofwhether respondent violated Rule 1.5(g)(2) of the Illinois Rules ofProfessional Conduct (Code) (134 Ill. 2d R. 1.5(g)(2)) by sharinga fee with another lawyer when respondent was unable to assumethe same legal responsibility for the conduct of the case as thelawyer receiving the referral. The Administrator of the AttorneyRegistration and Disciplinary Commission (ARDC) filed acomplaint charging Paul M. Storment, Jr., respondent, withvarious violations of the Code. The Hearing Board (Hearing Boardor Board) found that respondent had not violated Rule 1.5(g)(2)(134 Ill. 2d R.1.5(g)(2)), but that he violated Rule 1.5(f) (134 Ill.2d R.1.5(f)) by failing to obtain his client's written consent to adivision of fees with another lawyer. The Hearing Boardrecommended censure. The Review Board affirmed the HearingBoard's findings on misconduct and censure. This court grantedleave to file exceptions and accepted the matter for furtherconsideration. 134 Ill. 2d R.753(e)(5). We affirm the Boards'findings on misconduct, but conclude that the circumstanceswarrant a harsher penalty than censure.

I. BACKGROUND

In 1992, this court suspended respondent's law license for twoyears for advising a client to testify falsely during a child custodyhearing. In re Storment, MR 8487 (1992). Based on the sameincident, respondent was also disbarred by the Missouri SupremeCourt and by the United States District Court for the EasternDistrict of Missouri. Respondent's 1992 suspension ended inSeptember 1994. He was never reinstated, however, to practiceeither in the State of Missouri or before the United States DistrictCourt for the Eastern District of Missouri.

In 1995, Kevin Pleas was charged in the United States DistrictCourt for the Eastern District of Missouri in connection with anarcotics conspiracy. Pleas was referred by a former client torespondent. Respondent arranged for a meeting with Pleas andthen contacted Scott Rosenblum, an attorney licensed in bothIllinois and Missouri, and offered to refer Pleas to him.Respondent and Rosenblum met with Pleas at the JeffersonCounty jail, and both attorneys agreed to represent Pleas. Thedisciplinary charges at issue here arose from that arrangement.

The Administrator's complaint charged that respondent neverdisclosed, either to Pleas or Rosenblum, that he had been disbarredfrom the United States District Court for the Eastern District ofMissouri, where the Pleas case was pending, and that he was notauthorized to practice law in Missouri. The complaint also allegedthat Pleas did not sign any writing disclosing a division of feesbetween respondent and Rosenblum. The complaint furtheralleged that, although respondent kept $18,500 of the total fee paidby Pleas, he did not enter an appearance, prepare any pleadings,motions or other documents, or perform any substantial serviceson Pleas' behalf in the criminal case.

Based on the foregoing, the ARDC claimed that respondentviolated Rules 8.4(a)(4) (134 Ill. 2d R. 8.4(a)(4) (conductinvolving dishonesty, fraud, deceit or misrepresentation)) and8.4(a)(5) (134 Ill. 2d R. 8.4(a)(5) (conduct that is prejudicial to theadministration of justice)); and Supreme Court Rule 771 (134 Ill.2d R. 771) (conduct that tends to defeat the administration ofjustice or to bring the courts or the legal profession into disrepute).The specific basis for those general charges was that respondent:(1) divided a fee for legal services with another lawyer without thewritten consent of the client (see 134 Ill. 2d R. 1.5(f)); (2)participated in a division of fees that was not in proportion to theservices performed and the responsibility assumed by each lawyer(see 134 Ill. 2d R. 1.5(g)); and (3) obtained a fee for the referral ofa client to another lawyer while unable to assume the same legalresponsibility for the performance of the services in question (see134 Ill. 2d R. 1.5(g)(2)). In his answer, respondent denied anymisconduct.

At the hearing, the following testimony was elicited.Respondent testified that he made no reference to money or to thecase in the initial telephone conversation with Pleas because thecall was monitored. According to respondent, he told Pleas that hewas not licensed in Missouri, but that he knew a good lawyer,Rosenblum, who could help him. Respondent further testified that,when he and Rosenblum went together to meet Pleas, he again toldPleas that he was not licensed in Missouri while Rosenblum wastalking with another client. After Rosenblum joined them, theydiscussed general defense strategy. Respondent stated that he toldPleas he would "take care of the family" and the inquiries of thefamily; that he would deal with the seizure by the government ofa summer home in Illinois; and that he would "lend his expertise"to Rosenblum when the case went to trial and, potentially, to thecourt of appeals.

Respondent stated that Pleas first inquired about fees duringthe initial meeting with Rosenblum. Respondent claimed thatRosenblum requested $100,000 "up front" and that Rosenblumtold Pleas that both he and respondent would be working on thecase for that fee. Respondent testified that the amount of cashactually delivered was $58,500. He did not give his girlfriend,Robin Johnson, a receipt for the money. To protect his client,respondent put the cash into his business account in a series of fivedeposits. Pleas did not want anyone to know that he had receivedthe money. A deposit of more than $10,000 would have requiredthe completion of an Internal Revenue Service (IRS) Form 8300.Respondent did not complete and file that IRS cash transactionreport. Respondent testified that he telephoned Rosenblum andtold him the money was short. Rosenblum said that he would take$40,000 and that respondent could keep the remainder. Hedelivered the money to Rosenblum a few days later.

Pleas testified that he met with respondent on two occasions,once alone and once with Rosenblum. Pleas denied knowing thatrespondent was not licensed in Missouri. Pleas further testifiedthat when he telephoned respondent at the suggestion of Johnson,respondent offered to represent him for a fee of $100,000. Pleasstated that he arranged for this sum to be delivered to respondentin cash. According to Pleas, he discussed his case with bothattorneys and understood that Rosenblum would assist in hisdefense. Pleas denied that respondent had advised him or anyoneelse in his family regarding property in Illinois. According toPleas, he was unaware of any pleadings or briefs on his behalf byrespondent. Pleas pled guilty on February 20, 1996, and wassentenced to 15 years in prison on July 27, 1996.

Rosenblum testified that he recalled only one meeting at thejail with Pleas. He stated that it was made clear to Pleas that hewould be the trial lawyer. According to Rosenblum, there was nodiscussion about respondent's disbarment while he was present.

Rosenblum testified that he asked for a $50,000 retainer at thefirst meeting and told Pleas that he would also charge $25,000 foreach week of trial. There was no discussion of any fee division.Rosenblum testified that respondent delivered $40,000 to him incash, but said that he was not told that respondent had received$18,500. Rosenblum assumed that respondent would becompensated for whatever work he did on the Pleas matter, but hehad no knowledge of the arrangements for respondent'scompensation. Pursuant to his usual practice, he filed an IRS Form8300, reflecting a receipt of the $40,000.

Rosenblum recalled that he talked to respondent periodicallyduring the representation and was informed of respondent'scontacts with Pleas' family, who "needed a lot of hand-holding."Respondent gave Rosenblum some ideas about possible legalissues, including suppression of evidence, and may have sent himsome case law. He also thought respondent may have beeninvolved in a forfeiture matter involving Pleas' property in Illinois.

Pleas' girlfriend, Johnson, testified that she obtained $100,000in cash from Pleas' sister and delivered it to respondent at hisoffice. Johnson denied talking with respondent about a forfeiturematter involving Pleas' property. She related that she telephonedrespondent on several occasions to get a status report on Pleas'case. Johnson met with respondent on one additional occasion topick up a power of attorney that respondent had prepared for Pleasin connection with a water damage claim to a home owned byPleas in Illinois.

Following the close of testimony, the Hearing Boardconcluded that the Administrator did not prove a violation of Rule8.4(a)(4). The Board found that the evidence did not demonstrateany false statements by respondent concerning his disbarment inMissouri. In arriving at this conclusion, the Board assessed therelative credibility of respondent and Pleas and determined that itwas more probable that respondent, an attorney with considerableexperience in drug conspiracy cases, would have disclosed to Pleashis reason for bringing in another attorney with similar experience.The Board further noted that the Administrator did not establishany motive for keeping his ineligibility a secret. The HearingBoard also found that respondent's conduct in retaining $18,500of the money paid by Pleas was not dishonest, as the evidenceestablished that Rosenblum did not claim that he was deceived byrespondent in any way, and that he assumed respondent would becompensated for his services by Pleas.

Regarding Rule 1.5(f), the Hearing Board found thatrespondent violated that rule because he divided a fee for legalservices with another attorney without his client's written consent.The Board noted, however, that Pleas was aware that respondentwould work on his behalf and that he knew respondent would bepaid for his services.

The Hearing Board found that the Administrator failed toprove that the division of legal fees was not in proportion to theservices performed in violation of Rule 1.5(g). While the amountsreceived by each attorney seemed high for the services rendered,the Administrator did not allege excessive fees. In the absence ofrecords establishing the time spent by each attorney, there was nobasis in the record to assess the proportionate contributions ofeach.

The Hearing Board next found that the evidence did notestablish a violation of Rule 1.5(g)(2). The Rule states:

"(g) A division of fees shall be made in proportion tothe services performed and responsibility assumed byeach lawyer, except where the primary service performedby one lawyer is the referral of the client to another lawyerand

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(2) the referring lawyer agrees to assume the samelegal responsibility for the performance of the servicesin question as would a partner of the receiving lawyer."134 Ill. 2d R. 1.5(g)(2).

The Board found that the exception clause did not applybecause it had already determined that respondent and Rosenblumhad engaged in a division of fees for the services performed byeach. Thus, the primary service performed by respondent was nota "referral" within the meaning of the rule.

Even if the referral exception applied, the Board reasoned, theterm "legal responsibility" in paragraph (2) has been construed tomean financial responsibility in the event of malpractice by theattorney handling the case. Citing Elane v. St. Bernard Hospital,284 Ill. App. 3d 865, 872 (1996), the Board rejected theAdministrator's argument that legal responsibility required anagreement by respondent that he could assume the representationof Pleas in the criminal case.

Finally, the Hearing Board concluded that respondent'stechnical violation of Rule 1.5(f) did not operate to prejudice ordefeat the administration of justice in violation of either Rule8.4(a)(5) or Rule 771. Since his omission was not part of a courtproceeding, it would probably not be recognized outside the legalprofession as obvious misconduct by a lawyer. Therefore,respondent's technical violation did not affect the image of thecourts or the legal profession.

After considering in aggravation respondent's priordiscipline, the Hearing Board recommended a censure. The Board,however, rejected the Administrator's request for a finding thatrespondent received $100,000, rather than $58,000, and for afinding that his retention of the additional monies was dishonest.On that issue, the Board found that the testimony of Pleas andJohnson was not credible.

The Administrator filed exceptions to the report andrecommendations of the Hearing Board, challenging both censureand the failure of the Hearing Board to find that respondentengaged in all of the charged misconduct. The Administrator alsocontended that respondent's activities constituted the unauthorizedpractice of law. The Administrator further requested the ReviewBoard to consider the respondent's failure to file IRS Form 8300.Ultimately, the Administrator sought the disbarment ofrespondent.

The Review Board conducted an independent examination ofthe record and affirmed. In particular reference to Rule 1.5(g)(2),the Review Board agreed that an attorney's ability to accept areferral fee is not dependent on the actual ability to practice law orassume active participation in the case. The Review Board furtheragreed that the technical violation of Rule 1.5(f) of the Code dueto the lack of a written fee division agreement was proven, but didnot require a finding that such conduct prejudiced theadministration of justice or brought the courts or the legalprofession into disrepute.

Since respondent was not charged with the unauthorizedpractice of law, the Review Board observed that due processprinciples might preclude consideration of this issue as anaggravating factor. The Board resolved this issue against theAdministrator on other grounds, however, finding that the recorddisclosed that respondent lawfully provided services to Pleas andhis family in Illinois. He was not shown to have provided legalservices in Missouri. The Review Board also declined to considerin aggravation respondent's failure to file IRS Form 8300, findingthat this failure was not so intimately connected with the feedivision arrangements as to overcome the general principle that anattorney cannot be disciplined, or disciplined more harshly, basedon misconduct not charged in the complaint. The Review Boardnoted that even if this factor were considered in aggravation, itwould not affect its decision as to the proper quantum of disciplinefor the misconduct.

The Review Board affirmed the findings of fact andconclusions of law of the Hearing Board and recommendedcensure. The case is now before us on the Administrator'sexceptions to the ruling.

II. ANALYSIS

A. Standard of Review

In attorney disciplinary proceedings, misconduct must beproved by clear and convincing evidence. In re Eckberg, 192 Ill.2d 70, 84 (2000). Deference is accorded to findings of fact madeby the Hearing Board, because the Board is able to observe thedemeanor of witnesses, judge their credibility, and evaluate anyconflicting testimony. In re Spak, 188 Ill. 2d 53, 66 (1999).Therefore, this court will not disturb the Board's factual findingsunless they are against the manifest weight of the evidence. In reTimpone, 157 Ill. 2d 178, 196 (1993). Nonetheless, therecommendations of the Hearing Board and the Review Board areadvisory and not binding on this court. In re Eckberg, 192 Ill. 2dat 85.

In interpreting a supreme court rule, we apply the sameprinciples of construction that apply to a statute. Our goal is toascertain and give effect to the intention of the drafters of the rule.In re Estate of Rennick, 181 Ill. 2d 395, 404 (1998). Theconstruction of a rule, like a statute, is also a question of law thatwe review de novo. Rennick, 181 Ill. 2d at 401.

B. Rule 1.5(g)(2)

The Administrator argues that respondent violated Rule1.5(g)(2) because respondent could not assume actualresponsibility for the case. The Administrator contends thatrespondent's Missouri disbarments were an ethical impediment tohis receipt of attorney fees for the referral to a licensed Missouriattorney. Conversely, respondent argues, and the Boards held, thatRule 1.5(g)(2) does not anticipate that a referring lawyer actuallybe able to assume representation of the client. According to theBoards, the term "legal responsibility" as used in the rule refersinstead to potential financial responsibility for any malpracticeaction against the recipient of the referral.

The Boards were persuaded by the reasoning in Elane v. St.Bernard Hospital, 284 Ill. App. 3d 865 (1996). In that case, alawyer referred a medical malpractice claim to another lawyerunder a written fee agreement. The agreement provided that thereferring lawyer would receive 45% of the fees if the matter weresettled or tried and that she would remain legally responsible forthe performance of services to the extent required by Rule 1.5. Thereferring lawyer became a judge shortly after the referral. Whenthe medical malpractice case was settled, the receiving lawyerrefused to pay the referral fee. The receiving lawyer claimed thatSupreme Court Rule 65(F) prohibits a sitting judge from assuminglegal responsibility for a referred matter. 134 Ill. 2d R. 65(F).

The referring lawyer filed a petition for adjudication ofentitlement to attorney fees and the trial court entered judgment forthe receiving lawyer. The appellate court reversed, holding that theterm "legal responsibility"in Rule 1.5(g)(2) does not involve thepractice of law within the meaning of Supreme Court Rule 65(F).284 Ill. App. 3d at 872.

In reaching this conclusion, the Elane court relied, in part, ona Chicago Bar Association Professional Responsibility Committeeopinion interpreting former Code of Professional Responsibilityrules substantially identical to Rules 1.5(f) and (g) of the Rules ofProfessional Conduct. The committee opined that " 'legalresponsibility,' " within the meaning of the rules, involved " 'theacceptance of passive financial guaranty obligations.' " 284 Ill.App. 3d at 871, quoting Chicago Bar Association PRC Op. 87-2,at 4 (1988). The court also cited with approval a 1994 advisoryopinion from the Illinois Judicial Ethics Committee reaffirmingthis analysis and stating the " 'legal responsibility' consists solelyof potential financial responsibility for any malpractice actionagainst the recipient of the referral." 284 Ill. App. 3d at 872. Thecourt observed that these opinions were based on the committeecommentary to Rule 2-107 of the former Code. 284 Ill. App. 3dat 871-72. That commentary, in relevant part, is as follows:

"The rule expands and attempts to clarify the ABAprovisions respecting division of fees among lawyers. Inparticular, it expressly sanctions payment of a fee to thereferring lawyer where that lawyer takes no part in theactual handling of the case-a practice which is apparentlyprohibited by the ABA rule-so long as the referringlawyer assumes responsibility for the work of the other asthough he were the other's partner, and the total fee of thelawyers does not exceed reasonable compensation for thelegal services performed. Additional language seeks toimprove the ABA rule by increasing disclosure to theclient, clarifying the obligations to the client of eachlawyer involved, and discouraging lawyers from retainingcases which could be better handled by another.

To require actual participation in a case before a feemay be earned discourages some lawyers from referringcases they know could be better handled by another. Thisis not in the interest of the client or the lawyer." 107 Ill.2d Canon 2, R. 2-107, Committee Commentary, at 625.

We agree with the Boards that this language indicates that therule is concerned with the financial responsibility of the referringlawyer for potential malpractice actions against the receivinglawyer.

The Administrator contends that Elane is distinguishable fromthe facts at hand. The Administrator cites an opinion of the NewYork State Bar Association Committee on Professional Ethicsinterpreting a provision of the New York Lawyer's Code ofProfessional Responsibility (Opinion 745 (July 1, 2001)). TheNew York committee stated:

"From the time the New York Lawyers' Code ofProfessional Responsibility was adopted until it wassignificantly amended in 1990, DR 2-107(A) prohibiteda lawyer from receiving a referral fee merely for'forwarding' a matter to another lawyer. *** Theamended version of DR 2-107(A), however, now permitsa division of legal fees where the following ***condition[ ] [ is] satisfied:

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(2) The division is in proportion to the servicesperformed by each lawyer, or by a writing given theclient, each lawyer assumes joint responsibility for therepresentation.

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In our view, where a lawyer is unable to assume soleresponsibility for a matter due to a conflict of interest, thatlawyer is also disqualified from assuming jointresponsibility and, therefore, the referring lawyer may notaccept a referral fee from the receiving lawyer.[Citations.] Without now deciding what the precisecontours of joint responsibility are, we conclude that jointresponsibility is more than financial accountability andmalpractice liability." (Emphasis in original)

While we have found ethics opinions, in general, to beinstructive (see In re Vrdolyak, 137 Ill. 2d 407, 422-23 (1990)), inthis case the language of the New York provision and the Illinoisprovision are dissimilar. Rule 1.5(g) is framed in terms of theagreement of the referring lawyer to accept the same legalresponsibility as would a partner of the receiving lawyer. The NewYork rule does not describe the scope of the phrase "jointresponsibility." Accordingly, we are persuaded that the Elanecourt's interpretation of Rule 1.5(g) in conformity with Chicagoand Illinois State Bar Association ethics opinions is correct. Wehold that the term "legal responsibility" as used in Rule 1.5(g)(2)refers only to potential financial responsibility for any malpracticeaction against the recipient of the referral.

C. Rule 1.5(g)

The Administrator also contends that respondent violatedRule 1.5(g) by participating in a division of legal fees that was notin proportion to the services performed and the responsibilityassumed by each lawyer. The Hearing Board found that respondentmet with Pleas, consulted with members of Pleas' family, drafteda power of attorney for Pleas' girlfriend, gave some advice on anIllinois forfeiture matter, and discussed legal issues withRosenblum. Evidence in the record also demonstrated thatRosenblum met with Pleas, prepared for pending motions in hiscriminal case, represented Pleas in court appearances, andnegotiated the plea agreement.

No evidence was presented by either party, however,establishing the specific number of hours worked by each attorney.The Hearing Board observed:

"Without an allotment of time spent for various services,we are unable to determine what an appropriate divisionof fees would be for this matter and, concomitantly,whether the division in this case was proper. While theamounts received by each attorney seem to be high for theservices rendered, the Administrator has not charged thatthe fees were excessive. The issue presented is whetherthe fees were divided proportionately. We find, in light ofthe lack of any records as to specific time spent by eachattorney, that a violation of Rule 1.5(g) was not proved."

The Review Board agreed, noting that the burden of proof was onthe Administrator.

The Administrator argues here that the record demonstratedonly minimal services performed by respondent, and that anyfailure of proof as to the time spent is attributable to him, sincethat is a matter that should be particularly within his ownknowledge, and it is reasonable to expect him to come forwardwith the necessary proof. In support of this argument, theAdministrator cites Belding v. Belding, 358 Ill. 216, 220-21(1934), where this court held:

"It is a rule well recognized, that where the evidence toprove a fact is chiefly, if not entirely, in control of theadverse party and such evidence is not produced, hisfailure to produce the evidence tends to strengthen theprobative force of the evidence given to establish suchclaimed fact. [Citation.] The burden of producingevidence, chiefly, if not entirely, within the control of anadverse party, rests upon such party if he would deny theexistence of claimed facts. [Citation.] Where a party alonepossesses information concerning a disputed issue of factand fails to bring forward that information, and it isshown that it can be produced by him alone, apresumption arises in favor of his adversary's claim offact. [Citation.]"

In the cause at hand, the Administrator failed to show that themeans of proving the proportionality of the fees was in theexclusive possession of respondent such that the burden-shiftingrule of Belding applies. It is essential that the Administrator proveeach allegation by clear and convincing evidence. In re Enstrom,104 Ill. 2d 410, 416 (1984). The complaint alleges that respondentparticipated in a division of legal fees that was not in proportionto the services performed and the responsibility assumed by eachlawyer. Thus, it was the Administrator's burden to prove that thefee division was disproportionate to the services performed andthe responsibility assumed by both respondent and Rosenblum.

In this regard, testimony was elicited from respondent,Rosenblum and Pleas' girlfriend, Johnson, about the workperformed by both attorneys. All three witnesses were able todescribe, in some measure, the nature of the work done by bothrespondent and Rosenblum. Hence, neither respondent norRosenblum had exclusive knowledge about the services performedon behalf of Pleas, and whatever information they had, they sharedwith the Hearing Board, pursuant to the examination conducted bycounsel for the Administrator. Moreover, there is no indication inthe record that time records exist, and if such records did exist,both respondent and Rosenblum would have had to produce themto prove lack of proportionality. If the Administrator desired suchrecords or more explicit testimony, the opportunity existed tomake appropriate inquiry of both respondent and Rosenblum.Under these circumstances, the burden of going forward withevidence of time spent and services performed did not shift, butremained with the Administrator.

The Administrator also argues that since respondent was notauthorized to practice law in Missouri and since respondent spentsome time researching and discussing the case with Rosenblum,those activities amounted to the unauthorized practice of law, eventhough these services were rendered in Illinois. However,respondent was not charged with the unauthorized practice of law,nor was the issue raised or argued before the Hearing Board. Thisargument is, therefore, waived. See Eagan v. Chicago TransitAuthority, 158 Ill. 2d 527, 534-35 (1994).

For these reasons, we find no error in the findings of theBoards that a violation of Rule 1.5(g) was not proved.

D. Rule 8.4(a)

The Administrator also challenges the findings of the Boardsthat respondent did not engage in conduct involving dishonesty,fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4).According to the Administrator, a violation of Rule 8.4(a)(4) wasproved because: (1) respondent did not disclose to Pleas or toRosenblum that he had been disbarred in the United States DistrictCourt for the Eastern District of Missouri and was not authorizedto practice law in that venue; and (2) respondent did not discloseto Rosenblum that he had received at least $58,500 on behalf ofPleas and that he had kept $18,500 for his own purposes.

Regarding this issue, the Hearing Board specifically foundthat Pleas' testimony was less credible than respondent's. TheHearing Board likewise concluded that there was no evidence ofany intent by respondent to deceive either Pleas or Rosenblum.Contrary to this conclusion, the Administrator contends that theHearing Board's findings indicated a "naive and impracticalunderstanding" of respondent's conduct. In particular, theAdministrator argues that the Board ignored an obviousmotivation for respondent to conceal his Missouri disbarment: apotential client is apt to refuse to employ a disbarred lawyer torepresent him.

Hypothesizing about what a party or a witness is "apt" to do,however, is beyond the scope of review afforded by this court. Wemust give great deference to the findings of the Hearing Board. Inre Timpone, 157 Ill. 2d 178, 196 (1993). While the conclusionurged by the Administrator could have been reached by theHearing Board, we are not persuaded that the facts found by thatbody appear to be arbitrary, unreasonable or not based onevidence. Nor can we say that an opposite conclusion is apparent.Accordingly, we find no error in the Boards' determinations thatrespondent did not violate Rule 8.4(a)(4).

E. Rules 8.4(a)(5) and 771

The Administrator also argues that respondent's violation ofthe writing requirement in Rule 1.5(f) was prejudicial to theadministration of justice and tended to bring the courts or theprofession into disrepute, thus breaching Rule 8.4(a)(5) (134 Ill.2d R. 8.4(a)(5)) and Rule 771 (134 Ill. 2d R. 771) prohibiting suchconduct. Violations of these rules are generally consideredsubsidiary charges, dependent on proof of other, more specificviolations. In re Witt, 145 Ill. 2d 380, 398 (1991).

Here, the Boards concluded that respondent's failure to obtainhis client's written consent to the fee division was merely atechnical violation of the rules and had no impact on Pleas'representation or the outcome of the case. Thus, the administrationof justice could not have been undermined. Further, the Boardsheld that respondent's actions did not bring the courts or the legalprofession into disrepute since those actions did not occur in acourt proceeding and would not be recognized by laymen asobvious misconduct.

We do not believe that respondent committed a "meretechnical violation" of the rule. In In re Walner, 119 Ill. 2d 511,522 (1988), this court declined to label a rule violation a meretechnicality if the record did not suggest it was a simple oversight.More specifically, in In re Spak, 188 Ill. 2d 53, 67 (1999), we heldthat Rule 1.5(c)'s requirement of a writing in contingent feecontracts is mandatory even if the Review Board finds that thepurposes of the rule were sufficiently served by the client'sknowledge of the fee terms and confirmation of the terms inwriting before paying the fee. As we observed:

"[T]he Review Board's reading of the rule would permitan attorney to wait to reduce a contingent fee to writinguntil after the work is done and the attorney is inpossession of the proceeds of litigation. A client in sucha situation may be left with the unenviable choice ofagreeing with his attorney's recollection of the feeagreement, or delaying receipt of his money pendingresolution of a fee dispute. The inequality of bargainingpower between the attorney and client in such a case isreadily apparent. We decline to adopt a rule so fraughtwith potential for abuse." Spak, 188 Ill. 2d at 67.

A similar observation applies to Rule 1.5(f). The writing mustnot only authorize a division of fees, but also set out the basis forthe division, including the respective responsibility to be assumedand economic benefit to be received by the other lawyer. Therequirement of a writing ensures that the scope and terms of eachlawyer's representation are defined, thus preventing or minimizinguncertainties and disputes. Pleas' general understanding that bothrespondent and Rosenblum were to be compensated for theirservices does not fulfill the rule's mandatory writing requirement.For this reason, we cannot agree with the Boards' assessment ofrespondents' violation of Rule 1.5(f) as a mere technicality.

Nevertheless, we agree that the violation had no impact oneither Pleas' representation or the outcome of the case. The recordlacks clear and convincing evidence of any prejudice to theadministration of justice. In re Vrdolyak, 137 Ill. 2d 407, 425(1990). We also agree with the Boards' conclusions that theviolation did not bring the courts or the profession into disrepute.Therefore, it was not error to find that respondent did not violateRule 8.4(a)(5) (134 Ill. 2d R. 8.4(a)(5)) or Rule 771 (134 Ill. 2d R.771).

F. Evidence in Aggravation

The Hearing Board recommended censure for respondent'sviolation of Rule 1.5(f) after considering in aggravationrespondent's prior discipline for advising a client to give falsetestimony and subsequently eliciting that testimony at a courthearing. The Board noted the difference between the nature of theprior misconduct and the current violation and accordingly gavethe earlier discipline less weight than if it had resulted fromwrongdoing similar to misconduct found here. The Board alsoobserved that in Spak censure was imposed for failure to reduce acontingent fee agreement to writing. Since the only charge provenagainst this respondent was the failure to reduce a referralagreement to writing, the Board deemed censure to be appropriatehere as well.

The Administrator then asked the Review Board foradditional findings in aggravation, based on respondent's allegedunauthorized practice of law and failure to file IRS Form 8300.The Review Board found that the complaint did not give fairnotice of the additional misconduct and that the failure to file theIRS form was not sufficiently connected to the original charges tobe considered in aggravation.

Before this court, the Administrator cites In re Rosin, 118 Ill.2d 365 (1987), to show that the failure to file the IRS form issufficiently connected with the charged misconduct to beconsidered in aggravation. In that case, Rosin was suspended fromthe practice for two years and until further order of the court forengaging in conflicts of interest and making false statements to theARDC. The court noted that the Administrator cited inaggravation Rosin's uncharged conduct of dividing fees with adisbarred lawyer and loaning money to a company controlled bya sitting judge. Rosin, 118 Ill. 2d at 388. The court did not,however, expressly state that it considered the uncharged conductin imposing the sanction. Even if the uncharged conduct had beenconsidered, however, the case fails to examine its relationship tothe charged misconduct.

Although this court has held that procedural due processrights, including the right to fair notice, would be violated if anattorney were disciplined for uncharged misconduct (In reChandler, 161 Ill. 2d 459, 470 (1994)), we have considereduncharged conduct in aggravation when it was similar to thecurrent charges and established by evidence in the record. Forexample, in In re Elias, 114 Ill. 2d 321, 336-37 (1986), weconsidered in aggravation uncharged incidents that were"illustrative of respondent's pattern and practice of comminglingand conversion as charged in *** the Administrator's complaint."The pattern and practice evidence consisted of the attorney'srecords of transactions concerning clients whose funds werecommingled and converted other than the clients specificallynamed in the complaint. While the complaint did not contain thenames of those clients, it did provide notice sufficient to preparea defense.

Here, the respondent's failure to file the IRS form is notillustrative of any pattern or practice of misconduct charged in thecomplaint. It is entirely unrelated to respondent's obligation underRule 1.5(f) to obtain his client's written consent to the referralarrangement. The Review Board did not err in refusing to considerrespondent's uncharged failure to file the IRS form in aggravation.

The same principles apply to the Administrator's argumentalleging the unauthorized practice of law. The complaint containsno notice of this allegation. Thus, the Boards correctly rejected theAdministrator's argument and refused to consider this allegedmisconduct in aggravation.

III. CONCLUSION

Although the Hearing Board's and the Review Board'srecommendations are entitled to deference, the final determinationon sanctions rests with this court. In re Cetwinski, 143 Ill. 2d 396,404 (1991). While disbarment may not be appropriate for thelimited violation found in this case, we believe that censure is toolenient a penalty in view of respondent's recidivism and hisunexplained total disregard of the plain requirements of Rule1.5(f). We would expect that an attorney who has been suspendedfrom the practice for two years for counseling his client to commitperjury would have a heightened awareness of the necessity toconform strictly to all of the requirements of the Rules ofProfessional Conduct. Therefore, we order respondent suspendedfrom the practice of law for two years.

Respondent suspended.

JUSTICE RARICK took no part in the consideration ordecision of this case.